-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NTpRJZdWNVe3pqw00MyzEtccrgizLPkgdg58Pl3HZjyXPnZ3YcWZxQje1GYK8C8F 4Ge3aFzkGRMqDHoZnhpDpw== 0000950136-04-000026.txt : 20040107 0000950136-04-000026.hdr.sgml : 20040107 20040107113314 ACCESSION NUMBER: 0000950136-04-000026 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 107 FILED AS OF DATE: 20040107 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MONADNOCK LIFETIME PRODUCTS INC /DE/ CENTRAL INDEX KEY: 0001273725 IRS NUMBER: 020528875 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-33 FILM NUMBER: 04512225 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HATCH IMPORTS INC CENTRAL INDEX KEY: 0001273726 IRS NUMBER: 952497492 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-32 FILM NUMBER: 04512224 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DEFENSE TECHNOLOGY CORP OF AMERICA CENTRAL INDEX KEY: 0001273727 IRS NUMBER: 830318312 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-31 FILM NUMBER: 04512223 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CDR INTERNATIONAL INC CENTRAL INDEX KEY: 0001273728 IRS NUMBER: 562010802 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-30 FILM NUMBER: 04512222 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW TECHNOLOGIES ARMOR INC CENTRAL INDEX KEY: 0001273716 IRS NUMBER: 931221356 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-38 FILM NUMBER: 04512230 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NAP PROPERTY MANAGERS LLC CENTRAL INDEX KEY: 0001273720 IRS NUMBER: 330755818 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-36 FILM NUMBER: 04512228 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NAP PROPERTIES LTD CENTRAL INDEX KEY: 0001273721 IRS NUMBER: 954230863 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-35 FILM NUMBER: 04512227 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MONADNOCK LIFETIME PRODUCTS INC CENTRAL INDEX KEY: 0001273722 IRS NUMBER: 020303656 STATE OF INCORPORATION: NH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-34 FILM NUMBER: 04512226 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AHI BULLETPROFF ACQUISITION CORP CENTRAL INDEX KEY: 0001273707 IRS NUMBER: 050592716 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-45 FILM NUMBER: 04512237 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SPEEDFEED ACQUISITION CORP CENTRAL INDEX KEY: 0001273708 IRS NUMBER: 030419829 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-44 FILM NUMBER: 04512236 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAFARILAND GOVERNMENT SALES INC CENTRAL INDEX KEY: 0001273709 IRS NUMBER: 330798807 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-43 FILM NUMBER: 04512235 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAFARI LAND LTD INC CENTRAL INDEX KEY: 0001273710 IRS NUMBER: 952291390 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-42 FILM NUMBER: 04512234 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RAMTECH DEVELOPMENT CORP CENTRAL INDEX KEY: 0001273712 IRS NUMBER: 050592801 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-41 FILM NUMBER: 04512233 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRO TECH ARMORED PRODUCTS OF MASSACHUSETTS CENTRAL INDEX KEY: 0001273713 IRS NUMBER: 042989918 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-40 FILM NUMBER: 04512232 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: O GARA HESS & EISENHARDT ARMORING CO LLC CENTRAL INDEX KEY: 0001273714 IRS NUMBER: 311258139 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-39 FILM NUMBER: 04512231 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: B SQUARE INC CENTRAL INDEX KEY: 0001273981 IRS NUMBER: 752508507 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-09 FILM NUMBER: 04512199 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BREAK FREE INC CENTRAL INDEX KEY: 0001273730 IRS NUMBER: 330367696 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-28 FILM NUMBER: 04512220 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR GROUP SERVICES LLC CENTRAL INDEX KEY: 0001273746 IRS NUMBER: 522295786 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-10 FILM NUMBER: 04512200 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AI CAPITAL CORP CENTRAL INDEX KEY: 0001273753 IRS NUMBER: 860768865 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-02 FILM NUMBER: 04512190 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CCEC CAPITAL CORP CENTRAL INDEX KEY: 0001273754 IRS NUMBER: 860763929 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-01 FILM NUMBER: 04512189 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIMULA POLYMERS SYSTEMS INC CENTRAL INDEX KEY: 0001273755 IRS NUMBER: 860842935 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-24 FILM NUMBER: 04512215 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NETWORK AUDIT SYSTEMS INC CENTRAL INDEX KEY: 0001273718 IRS NUMBER: 161558713 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-37 FILM NUMBER: 04512229 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BREAK FREE ARMOR CORP CENTRAL INDEX KEY: 0001273732 IRS NUMBER: 050592799 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-26 FILM NUMBER: 04512218 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR SAFETY PRODUCTS CO CENTRAL INDEX KEY: 0001273733 IRS NUMBER: 431960312 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-27 FILM NUMBER: 04512219 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS PROPERTIES INC CENTRAL INDEX KEY: 0001273734 IRS NUMBER: 593410197 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-20 FILM NUMBER: 04512211 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS PRODUCTS INC CENTRAL INDEX KEY: 0001273735 IRS NUMBER: 592044869 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-19 FILM NUMBER: 04512210 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS PAYROLL SERVICES LLC CENTRAL INDEX KEY: 0001273736 IRS NUMBER: 421563404 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-18 FILM NUMBER: 04512209 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS MOBILE SECURITY LLC CENTRAL INDEX KEY: 0001273737 IRS NUMBER: 593753134 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-17 FILM NUMBER: 04512208 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS LP LLC CENTRAL INDEX KEY: 0001273738 IRS NUMBER: 593678750 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-16 FILM NUMBER: 04512207 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS GP LLC CENTRAL INDEX KEY: 0001273739 IRS NUMBER: 593678751 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-15 FILM NUMBER: 04512206 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS FORENSICS INC CENTRAL INDEX KEY: 0001273740 IRS NUMBER: 593678749 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-14 FILM NUMBER: 04512205 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR BRANDS INC CENTRAL INDEX KEY: 0001273741 IRS NUMBER: 800051043 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-13 FILM NUMBER: 04512203 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AHI PROPERTIES I INC CENTRAL INDEX KEY: 0001273742 IRS NUMBER: 010718252 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-12 FILM NUMBER: 04512202 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: 911 EP INC CENTRAL INDEX KEY: 0001273744 IRS NUMBER: 134213473 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-11 FILM NUMBER: 04512201 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MONADNOCK POLICE TRAINING COUNCIL INC CENTRAL INDEX KEY: 0001273748 IRS NUMBER: 020423584 STATE OF INCORPORATION: NH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-08 FILM NUMBER: 04512197 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IDENTICATOR INC CENTRAL INDEX KEY: 0001273749 IRS NUMBER: 593756251 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-06 FILM NUMBER: 04512194 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAI CAPITAL CORP CENTRAL INDEX KEY: 0001273750 IRS NUMBER: 860772587 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-05 FILM NUMBER: 04512193 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIMULA AEROSPACE & DEFENSE GROUP INC CENTRAL INDEX KEY: 0001273751 IRS NUMBER: 860742551 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-04 FILM NUMBER: 04512192 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASD CAPITAL CORP CENTRAL INDEX KEY: 0001273752 IRS NUMBER: 860789385 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-03 FILM NUMBER: 04512191 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CASCO INTERNATIONAL INC /NH/ CENTRAL INDEX KEY: 0001273965 IRS NUMBER: 020361726 STATE OF INCORPORATION: NH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-29 FILM NUMBER: 04512221 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARMOR HOLDINGS INC CENTRAL INDEX KEY: 0000845752 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 593392443 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742 FILM NUMBER: 04512217 BUSINESS ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STREET 2: SUITE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 BUSINESS PHONE: 9047415600 MAIL ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STREET 2: SUITE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN BODY ARMOR & EQUIPMENT INC DATE OF NAME CHANGE: 19920703 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTERNATIONAL CENTER FOR SAFETY EDUCATION INC CENTRAL INDEX KEY: 0001039934 STANDARD INDUSTRIAL CLASSIFICATION: PUBLIC BUILDING AND RELATED FURNITURE [2531] IRS NUMBER: 860787589 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-23 FILM NUMBER: 04512214 BUSINESS ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 BUSINESS PHONE: 6027528918 MAIL ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIMULA TRANSPORTATION EQUIPMENT CORP CENTRAL INDEX KEY: 0001039938 STANDARD INDUSTRIAL CLASSIFICATION: PUBLIC BUILDING AND RELATED FURNITURE [2531] IRS NUMBER: 860742552 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-21 FILM NUMBER: 04512212 BUSINESS ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 BUSINESS PHONE: 6027528918 MAIL ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIMULA INC CENTRAL INDEX KEY: 0000885080 STANDARD INDUSTRIAL CLASSIFICATION: PUBLIC BUILDING AND RELATED FURNITURE [2531] IRS NUMBER: 860320129 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-22 FILM NUMBER: 04512213 BUSINESS ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 BUSINESS PHONE: 6026314005 MAIL ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIMULA TECHNOLOGIES INC CENTRAL INDEX KEY: 0001039943 STANDARD INDUSTRIAL CLASSIFICATION: PUBLIC BUILDING AND RELATED FURNITURE [2531] IRS NUMBER: 860842935 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-25 FILM NUMBER: 04512216 BUSINESS ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 BUSINESS PHONE: 6027528918 MAIL ADDRESS: STREET 1: 2700 NORTH CENTRAL AVE STREET 2: STE 1000 CITY: PHOENIX STATE: AZ ZIP: 85004 FILER: COMPANY DATA: COMPANY CONFORMED NAME: O GARA CO CENTRAL INDEX KEY: 0001123453 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711] IRS NUMBER: 311726886 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111742-07 FILM NUMBER: 04512196 BUSINESS ADDRESS: STREET 1: 9113 LASAINT DR CITY: FAIRFIELD STATE: OH ZIP: 45014 BUSINESS PHONE: 5138742112 MAIL ADDRESS: STREET 1: 1400 MARSH LANDING PARKWAY STREET 2: STE 112 CITY: JACKSONVILLE STATE: FL ZIP: 32250 S-4 1 file001.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on January 7, 2004 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ARMOR HOLDINGS, INC. (Exact name of registrant as specified in charter) DELAWARE 7381 59-3392443 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of incorporation or organization) Classification Code Numbers) Identification No.)
1400 Marsh Landing Parkway Suite 112 Jacksonville, Florida 32250 (904) 741-5400 (Address, including zip code and telephone number, including area code, of registrant's principal executive offices) WARREN B. KANDERS CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER ARMOR HOLDINGS, INC. 1400 MARSH LANDING PARKWAY SUITE 112 JACKSONVILLE, FLORIDA 32250 (904) 741-5400 (Name, Address, including zip code and telephone number, including area code, of agent for service of process) With copies to: ROBERT L. LAWRENCE, ESQ. KANE KESSLER, P.C. 1350 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019 (212) 541-6222 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as practicable after the effective date of this registration statement. If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General instruction G, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration number for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------------------- PROPOSED PROPOSED TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM MAXIMUM AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED OFFERING AGGREGATE REGISTRATION PRICE PER OFFERING FEE UNIT(1) PRICE(1) 8 1/4% Senior Subordinated Notes due 2013 $150,000,000 100% $150,000,000 $12,135 (2) Subsidiary Guarantees of 8 1/4% Senior Subordinated Notes due 2013 - - - (3)
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(f) of the Securities Act of 1933, as amended (the "Securities Act"). (2) Calculated pursuant to Rule 457(f)(2) of the Securities Act. (3) Pursuant to Rule 457(n) under the Securities Act, no separate fee is payable for the subsidiary guarantees. ----------------------------------- The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. TABLE OF ADDITIONAL REGISTRANTS
- -------------------------------------------------------------------------------------------------------------------------------- STATE OR OTHER JURISDICTION ADDRESS, INCLUDING ZIP CODE OF INCORPORATION OR I.R.S.EMPLOYER AND TELEPHONE NUMBER, NAME ORGANIZATION IDENTIFICATION NUMBER INCLUDING AREA CODE - ------------------------------------------------------------------------------------------------------------------------------- 911EP, Inc. Delaware 13-4213473 * - -------------------------------------------------------------------------------------------------------------------------------- AHI Bulletproof Acquisition Corp. Delaware 05-0592796 * - --------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------- STATE OR OTHER JURISDICTION ADDRESS, INCLUDING ZIP CODE OF INCORPORATION OR I.R.S.EMPLOYER AND TELEPHONE NUMBER, NAME ORGANIZATION IDENTIFICATION NUMBER INCLUDING AREA CODE - ------------------------------------------------------------------------------------------------------------------------------- AHI Properties I, Inc. Delaware 01-0718252 * - -------------------------------------------------------------------------------------------------------------------------------- AI Capital Corp. Arizona 86-0768865 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Brands, Inc. Delaware 80-0051043 * - -------------------------------------------------------------------------------------------------------------------------------- ArmorGroup Services, LLC Delaware 52-2295786 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Holdings Forensics, Inc. Delaware 59-3678749 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Holdings GP, LLC Delaware 59-3678751 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Holdings LP, LLC Delaware 59-3678750 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Holdings Mobile Security, L.L.C. Delaware 59-3753134 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Holdings Payroll Services, LLC Delaware 42-1563404 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Holdings Products, Inc. Delaware 59-2044869 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Holdings Properties, Inc. Delaware 59-3410197 * - -------------------------------------------------------------------------------------------------------------------------------- Armor Safety Products Company Delaware 43-1960312 * - -------------------------------------------------------------------------------------------------------------------------------- ASD Capital Corp. Arizona 86-0789385 * - -------------------------------------------------------------------------------------------------------------------------------- B-Square, Inc. Texas 75-2508507 * - -------------------------------------------------------------------------------------------------------------------------------- Break-Free Armor Corp. Delaware 05-0592799 * - -------------------------------------------------------------------------------------------------------------------------------- Break-Free, Inc. Delaware 33-0367696 * - -------------------------------------------------------------------------------------------------------------------------------- Casco International, Inc. New Hampshire 02-0361726 * - -------------------------------------------------------------------------------------------------------------------------------- CCEC Capital Corp. Arizona 86-0763929 * - -------------------------------------------------------------------------------------------------------------------------------- CDR International, Inc. Delaware 56-2010802 * - -------------------------------------------------------------------------------------------------------------------------------- Defense Technology Corporation of America Delaware 83-0318312 * - -------------------------------------------------------------------------------------------------------------------------------- Hatch Imports, Inc. California 95-2497492 * - -------------------------------------------------------------------------------------------------------------------------------- Identicator, Inc. Delaware 59-3756251 * - -------------------------------------------------------------------------------------------------------------------------------- International Center for Safety Education, Inc. Arizona 86-0787589 * - -------------------------------------------------------------------------------------------------------------------------------- Monadnock Lifetime Products, Inc. Delaware 02-0528875 * - -------------------------------------------------------------------------------------------------------------------------------- Monadnock Lifetime Products, Inc. New Hampshire 02-0303656 * - -------------------------------------------------------------------------------------------------------------------------------- Monadnock Police Training Council, Inc. New Hampshire 02-0423584 * - -------------------------------------------------------------------------------------------------------------------------------- NAP Properties, Ltd. California 95-4230863 * - -------------------------------------------------------------------------------------------------------------------------------- NAP Property Managers, LLC California 33-0755818 * - -------------------------------------------------------------------------------------------------------------------------------- Network Audit Systems, Inc. Delaware 16-1558713 * - --------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------- STATE OR OTHER JURISDICTION ADDRESS, INCLUDING ZIP CODE OF INCORPORATION OR I.R.S.EMPLOYER AND TELEPHONE NUMBER, NAME ORGANIZATION IDENTIFICATION NUMBER INCLUDING AREA CODE - ------------------------------------------------------------------------------------------------------------------------------- New Technologies Armor, Inc. Delaware 93-1221356 * - -------------------------------------------------------------------------------------------------------------------------------- O'Gara-Hess & Eisenhardt Armoring Company, L.L.C. Delaware 31-1258139 * - -------------------------------------------------------------------------------------------------------------------------------- Pro-Tech Armored Products of Massachusetts, Inc. Massachusetts 04-2989918 * - -------------------------------------------------------------------------------------------------------------------------------- Ramtech Development Corp. Delaware 05-0592801 * - -------------------------------------------------------------------------------------------------------------------------------- Safari Land Ltd., Inc. California 95-2291390 * - -------------------------------------------------------------------------------------------------------------------------------- Safariland Government Sales, Inc. California 33-0798807 * - -------------------------------------------------------------------------------------------------------------------------------- SAI Capital Corp. Arizona 86-0772587 * - -------------------------------------------------------------------------------------------------------------------------------- Simula Aerospace & Defense Group, Inc. Arizona 86-0742551 * - -------------------------------------------------------------------------------------------------------------------------------- Simula, Inc. Arizona 86-0320129 * - -------------------------------------------------------------------------------------------------------------------------------- Simula Polymers Systems, Inc. Arizona 86-0979231 * - -------------------------------------------------------------------------------------------------------------------------------- Simula Technologies, Inc. Arizona 86-0842935 * - -------------------------------------------------------------------------------------------------------------------------------- Simula Transportation Equipment Corporation Arizona 86-0742552 * - -------------------------------------------------------------------------------------------------------------------------------- Speedfeed Acquisition Corp. Delaware 03-0419829 * - -------------------------------------------------------------------------------------------------------------------------------- The O'Gara Company Ohio 31-1726886 * - --------------------------------------------------------------------------------------------------------------------------------
*The name, address, including zip code, and telephone number of the agent for service of process is Warren B. Kanders at 1400 Marsh Landing Parkway, Suite 112, Jacksonville, Florida 32250, telephone number (904) 741-5400. SUBJECT TO COMPLETION, DATED ___________ __, 2004. PROSPECTUS ARMOR HOLDINGS, INC. OFFER TO EXCHANGE $150,000,000 PRINCIPAL AMOUNT OF OUR 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY AND ALL OF OUR OUTSTANDING 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY GUARANTORS LISTED ON PAGE 5 OF THIS PROSPECTUS --------------- MATERIAL TERMS OF THE EXCHANGE OFFER o The exchange offer expires at 5:00 p.m., New York City time, on ___________, 2004, unless extended. o We will exchange all outstanding old notes that are validly tendered and not validly withdrawn for an equal principal amount of a new series of notes which are registered under the Securities Act of 1933, as amended (the "Securities Act"), subject to the satisfaction or waiver of specified conditions. o The terms of the new notes are substantially identical to those of the old notes, except that the transfer restrictions applicable to the old notes are not applicable to the new notes. o You may withdraw tenders of old notes at any time before the exchange offer expires. o The exchange of new notes for outstanding old notes should not be a taxable event for U.S. Federal income tax purposes. o We will not receive any proceeds from the exchange offer. o We do not intend to apply for listing of any of the new notes to be issued on any securities exchange or to arrange for them to be quoted on any quotation system. o All of our current and future domestic subsidiaries, except USDS, Inc., will unconditionally guarantee in full, on a joint and several basis, our obligation to pay the principal of, premium, if any, and interest on the new notes. See "Risk Factors - Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors" and "Description of the New Notes - Subsidiary Guarantees." o Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of the new notes received in exchange for the old notes where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We and our subsidiary guarantors have agreed that we will make this prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution." --------------- PLEASE REFER TO "RISK FACTORS" BEGINNING ON PAGE 17 FOR A DESCRIPTION OF THE RISKS YOU SHOULD CONSIDER WHEN EVALUATING THIS INVESTMENT. --------------- WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. --------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE NEW NOTES TO BE ISSUED IN THE EXCHANGE OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. WE MAY AMEND OR SUPPLEMENT THIS PROSPECTUS FROM TIME TO TIME BY FILING AMENDMENTS OR SUPPLEMENTS AS REQUIRED. YOU SHOULD READ THIS ENTIRE PROSPECTUS (AND THE ACCOMPANYING LETTER OF TRANSMITTAL AND RELATED DOCUMENTS) AND ANY AMENDMENTS OR SUPPLEMENTS CAREFULLY BEFORE MAKING YOUR INVESTMENT DECISION. THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. THE DATE OF THIS PROSPECTUS IS __________ __, 2004. 2 TABLE OF CONTENTS
Page ---- SUBSIDIARY GUARANTORS................................................................................................5 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE......................................................................6 THE COMPANY..........................................................................................................8 SUMMARY..............................................................................................................9 RECENT DEVELOPMENTS.................................................................................................15 RISK FACTORS........................................................................................................17 RISKS RELATING TO THE NEW NOTES..................................................................................17 If you fail to exchange properly your old notes for new notes, you will continue to hold old notes subject to transfer restrictions..........................................................................................17 Our significant indebtedness could adversely affect our financial health, and prevent us from fulfilling our obligations under the notes....................................................................................17 Your right to receive payments on the notes is junior to our existing senior indebtedness and possibly all of our future borrowings. Further, the guarantees of the new notes are junior to all of the guarantors' existing senior indebtedness and possibly to all their future borrowings................................................18 Since the notes are unsecured, your right to enforce remedies is limited by the rights of holders of secured debt...........................................................................................................19 Not all of our subsidiaries will guarantee our obligations under the notes, and the assets of the non-guarantor subsidiaries may not be available to make payments on the notes................................................19 We will require a significant amount of cash to service our indebtedness. Our ability to generate cash depends on many factors beyond our control.............................................................................19 The indenture and our senior credit facility contain various covenants which limit our management's discretion in the operation of our business...............................................................................20 We may not have the ability to raise the funds necessary to finance the change of control offer required by the indenture. ................................................................................................20 A public market for the new notes may not develop..............................................................21 Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors........................................................21 RISKS RELATED TO ARMOR HOLDINGS' INDUSTRY........................................................................22 The products we sell are inherently risky and could give rise to product liability and other claims............22 We are subject to extensive government regulation and our failure or inability to comply with these regulations could materially restrict our operations and subject us to substantial penalties...................23 We have significant international operations and assets and are therefore subject to additional financial and regulatory risks...............................................................................................24 RISKS RELATED TO ARMOR HOLDINGS' BUSINESS........................................................................25 Many of our customers have fluctuating budgets which may cause substantial fluctuations in our results of operations.....................................................................................................25 The loss of, or a significant reduction in, U.S. military business would have a material adverse effect on us..25 We may lose money or generate less than expected profits on our fixed-price contracts..........................26 Our business is subject to various laws and regulations favoring the U.S. government's contractual position, and our failure to comply with such laws and regulations could harm our operating results and prospects........26 Our markets are highly competitive and if we are unable to compete effectively, we will be adversely affected..26 3 There are limited sources for some of our raw materials which may significantly curtail our manufacturing operations.....................................................................................................27 We may be unable to complete or integrate acquisitions effectively, if at all, and as a result may incur unanticipated costs or liabilities or operational difficulties.................................................27 Our resources may be insufficient to manage the demands imposed by our growth..................................27 Armor Holdings is dependent on industry relationships..........................................................28 We may be unable to protect our proprietary technology, including the technologies we use to furnish the up-armoring of HMMWVS..........................................................................................28 Technological advances, the introduction of new products, and new design and manufacturing techniques could adversely affect our operations unless we are able to adapt to the resulting change in conditions..............28 We may be adversely affected by applicable environmental laws and regulations..................................29 FORWARD LOOKING STATEMENTS..........................................................................................29 USE OF PROCEEDS.....................................................................................................30 RATIO OF EARNINGS TO FIXED CHARGES..................................................................................30 CAPITALIZATION......................................................................................................32 SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF ARMOR HOLDINGS, INC..............................................33 SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF SIMULA, INC......................................................35 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.....................................................36 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS...............................44 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT......................................................74 THE EXCHANGE OFFER..................................................................................................76 DESCRIPTION OF THE NEW NOTES........................................................................................88 DESCRIPTION OF SENIOR INDEBTEDNESS.................................................................................145 FEDERAL INCOME TAX CONSIDERATIONS..................................................................................145 PLAN OF DISTRIBUTION...............................................................................................149 UNAUDITED INTERIM FINANCIAL STATEMENTS.............................................................................152 Condensed Consolidated Balance Sheet as of September 30, 2003..................................................152 Condensed Consolidated Statements of Operations for the Three and Nine Month Periods Ended September 30, 2002 and 2003.......................................................................................................154 Condensed Consolidated Statement of Cash Flows for the Nine Months Ended September 30, 2002 and 2003..........156 Notes to Unaudited Condensed and Consolidated Financial Statements............................................157 AUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS................................................................181 Report of Independent Certified Public Accountants............................................................181 Consolidated Balance Sheets as of December 31, 2002 and 2001..................................................182 Consolidated Income Statements for the Years Ended December 31, 2002, 2001 and 2000..........................183 Consolidated Statements of Stockholders' Equity and Comprehensive Income for the Years Ended December 31, 2002, 2001 and 2000 .............................................................................184 Consolidated Statement of Cash Flow for the Years Ended December 31, 2002, 2001 and 2000......................185 Notes to Consolidated Financial Statements....................................................................186 WHERE YOU CAN FIND MORE INFORMATION................................................................................226 EXPERTS ...........................................................................................................226 LEGAL MATTERS......................................................................................................227
4 SUBSIDIARY GUARANTORS Set forth below is a list of the subsidiary guarantors guarantying the obligations of Armor Holdings, Inc. pursuant to the terms of the Indenture, dated as of August 12, 2003, among Armor Holdings, Inc., the subsidiary guarantors listed as signatories thereto and Wachovia Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture dated as of September 30, 2003, as further supplemented by the Second Supplemental Indenture dated as of December 9, 2003 and as further supplemented by the Third Supplemental Indenture dated as of December 24, 2003. - ------------------------------------------------------------------------ 911EP, Inc. - ------------------------------------------------------------------------ AHI Bulletproof Acquisition Corp. - ------------------------------------------------------------------------ AHI Properties I, Inc. - ------------------------------------------------------------------------ AI Capital Corp. - ------------------------------------------------------------------------ Armor Brands, Inc. - ------------------------------------------------------------------------ ArmorGroup Services, LLC - ------------------------------------------------------------------------ Armor Holdings Forensics, Inc. - ------------------------------------------------------------------------ Armor Holdings GP, LLC - ------------------------------------------------------------------------ Armor Holdings LP, LLC - ------------------------------------------------------------------------ Armor Holdings Mobile Security, L.L.C. - ------------------------------------------------------------------------ Armor Holdings Payroll Services, LLC - ------------------------------------------------------------------------ Armor Holdings Products, Inc. - ------------------------------------------------------------------------ Armor Holdings Properties, Inc. - ------------------------------------------------------------------------ Armor Safety Products Company - ------------------------------------------------------------------------ ASD Capital Corp. - ------------------------------------------------------------------------ B-Square, Inc. - ------------------------------------------------------------------------ Break-Free Armor Corp. - ------------------------------------------------------------------------ Break-Free, Inc. - ------------------------------------------------------------------------ Casco International, Inc. - ------------------------------------------------------------------------ CCEC Capital Corp. - ------------------------------------------------------------------------ CDR International, Inc. - ------------------------------------------------------------------------ Defense Technology Corporation of America - ------------------------------------------------------------------------ Hatch Imports, Inc. - ------------------------------------------------------------------------ Identicator, Inc. - ------------------------------------------------------------------------ International Center for Safety Education, Inc. - ------------------------------------------------------------------------ Monadnock Lifetime Products, Inc. (Delaware) - ------------------------------------------------------------------------ Monadnock Lifetime Products, Inc. (New Hampshire) - ------------------------------------------------------------------------ Monadnock Police Training Council, Inc. - ------------------------------------------------------------------------ NAP Properties, Ltd. - ------------------------------------------------------------------------ NAP Property Managers, LLC - ------------------------------------------------------------------------ Network Audit Systems, Inc. - ------------------------------------------------------------------------ New Technologies Armor, Inc. - ------------------------------------------------------------------------ O'Gara-Hess & Eisenhardt Armoring Company, L.L.C. - ------------------------------------------------------------------------ Pro-Tech Armored Products of Massachusetts, Inc. - ------------------------------------------------------------------------ 5 - ------------------------------------------------------------------------ Ramtech Development Corp. - ------------------------------------------------------------------------ Safari Land Ltd., Inc. - ------------------------------------------------------------------------ Safariland Government Sales, Inc. - ------------------------------------------------------------------------ SAI Capital Corp. - ------------------------------------------------------------------------ Simula Aerospace & Defense Group, Inc. - ------------------------------------------------------------------------ Simula, Inc. - ------------------------------------------------------------------------ Simula Polymers Systems, Inc. - ------------------------------------------------------------------------ Simula Technologies, Inc. - ------------------------------------------------------------------------ Simula Transportation Equipment Corporation - ------------------------------------------------------------------------ Speedfeed Acquisition Corp. - ------------------------------------------------------------------------ The O'Gara Company - ------------------------------------------------------------------------ INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed by us with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference in this prospectus, except as superseded or modified herein: (a) Our annual report on Form 10-K/A for the fiscal year ended December 31, 2002; (b) Our annual report on Form 10-K for the fiscal year ended December 31, 2002; (c) Our quarterly report on Form 10-Q for the period ended March 31, 2003; (d) Our quarterly report on Form 10-Q for the period ended June 30, 2003; (e) Our quarterly report on Form 10-Q for the period ended September 30, 2003; (f) Our current report on Form 8-K, Date of Event - May 5, 2003, filed on May 5, 2003; (g) Our current report on Form 8-K, Date of Event - July 23, 2003, filed on July 24, 2003; (h) Our current report on Form 8-K, Date of Event - July 26, 2003, filed on August 8, 2003; (i) Our current report on Form 8-K, Date of Event - August 12, 2003, filed on August 13, 2003; (j) Our current report on Form 8-K, Date of Event - November 4, 2003, filed on November 5, 2003; (k) Our current report on Form 8-K, Date of Event - November 26, 2003, filed on December 11, 2003; (l) Our current report on Form 8-K, Date of Event - December 9, 2003, filed on December 23, 2003; and (m) Our definitive proxy statement on Schedule 14A filed on April 30, 2003. 6 All of such documents are on file with the Commission. In addition, all documents filed by Armor Holdings pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this prospectus and prior to termination of the exchange offer are incorporated by reference in this prospectus and are a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document that is also incorporated by reference herein modifies or replaces such statement. Any statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. This prospectus incorporates herein by reference important business and financial information about Armor Holdings that is not included in or delivered with this prospectus. This information is available to you without charge upon written or oral request. If you would like a copy of any of this information, please submit your request to Armor Holdings, Inc., 1400 Marsh Landing Parkway, Suite 112, Jacksonville, Florida 32250, Attention: Corporate Secretary, or call (904) 741-5400. In addition, to obtain timely delivery of any information you request, you must submit your request no later than _____________, 2004, which is five business days before the date the exchange offer expires. 7 THE COMPANY We are a leading manufacturer and provider of specialized security products, training and support services related to these products, and vehicle armor systems. Our products and systems are used domestically and internationally by military, law enforcement, security and corrections personnel, as well as governmental agencies, multinational corporations and individuals. We are organized and operated under three business divisions: Armor Holdings Products, also referred to as our Products Division, Armor Mobile Security, also referred to as our Mobile Security Division, and Aerospace and Defense Group. Products. Our Products Division manufactures and sells a broad range of high quality security products, equipment and related consumable items, such as concealable and tactical body armor, hard armor, duty gear, less-lethal munitions, anti-riot products, police batons, emergency lighting products, forensic products, firearms accessories and weapon maintenance products. Our products are marketed under brand names that are well established in the military and law enforcement communities such as AMERICAN BODY ARMOR(TM), B-SQUARE(R), BREAK FREE(R), CLP(R), DEFENSE TECHNOLOGY/FEDERAL LABORATORIES(R), DEF-TEC PRODUCTS(R), DISTRACTION DEVICE(R), FEDERAL LABORATORIES(R), FERRET(R), FIRST DEFENSE(R), IDENTICATOR(R), IDENTIDRUG(R), IMPAK(TM), LIGHTNING POWDER(R), MONADNOCK(R), NIK(R), O'GARA-HESS & EISENHARDT ARMORING COMPANY(R), PROTECH(TM), QUIKSTEP LADDERS(TM), SAFARILAND DESIGN(R), SPEEDFEED(R), and 911EP and DESIGN(TM). We sell our products through a network of over 350 distributors and sales agents, including approximately 200 in the United States. Our extensive distribution capabilities and commitment to customer service and training have enabled us to become a leading provider of security equipment to law enforcement agencies. Mobile Security. Our Mobile Security Division manufactures and installs ballistic and blast protected armoring systems for privately owned vehicles. We armor a variety of privately owned commercial vehicles, including limousines, sedans, sport utility vehicles, commercial trucks and cash-in-transit vehicles, to protect against varying degrees of ballistic and blast threats. Our customers in this business include international corporations and high net worth individuals. Aerospace and Defense Group. We recently formed our Aerospace and Defense Group after our acquisition of Simula. The Aerospace and Defense Group was formed by combining Simula's operations with our military and government business that was previously conducted through our Mobile Security Division. Under the brand name O'Gara-Hess & Eisenhardt, we are the sole-source provider to the U.S. military of the armor and blast protection systems for HMMWVs. We are also under contract with the U.S. Army to provide spare parts, logistics and ongoing field support services for the currently installed base of approximately 4,415 Up-Armored HMMWVs. Additionally, the Mobile Security Division has been subcontracted to develop a ballistic and blast protected armored and sealed truck cab for the HIMARS, a program recently transitioned by the U.S. Army and U.S. Marine Corps from developmental to a low rate of initial production, with deliveries scheduled to begin in late 2003. We also supply armor sub-systems for other tactical wheeled vehicles. In addition, we supply ballistic and blast protected armoring systems to U.S. federal law enforcement and intelligence agencies and foreign heads of state. The Aerospace and Defense Group also supplies human safety and survival systems to the U.S. military, major aerospace and defense prime contractors. Our core markets are military aviation safety, military personnel safety, and land and marine safety. Through our Aerospace and Defense Group, we provide military helicopter seating systems, aircraft and land vehicle armor systems, protective equipment for military personnel and technologies used to protect humans in a variety of life-threatening or catastrophic situations. 8 SUMMARY This summary highlights material information from the prospectus. It may not contain all of the information that is important to you. References in this prospectus to "Armor Holdings," "we," "us" and "our" refer to Armor Holdings, Inc., and references to Simula refer to Simula, Inc. We urge you to read and review carefully this entire prospectus, and the other documents to which it refers, to fully understand the terms of the new notes and the exchange offer. SUMMARY OF THE TERMS OF THE EXCHANGE OFFER General..................................... On August 12, 2003, we completed a private offering of the old notes, which consisted of $150.0 million aggregate principal amount of our 8 1/4% Senior Subordinated Notes due 2013. In connection with the private offering, we entered into a registration rights agreement in which we agreed, among other things, to deliver this prospectus and to complete an exchange offer for the old notes. The Exchange Offer.......................... We are offering to exchange $1,000 principal amount of our registered 8 1/4% Senior Subordinated Notes due 2013, which we refer to as the "new notes," for each $1,000 principal amount of our unregistered 8 1/4% Senior Subordinated Notes due 2013, which we refer to as the "old notes." We sometimes refer to the new notes and the old notes together as the "notes." Currently, $150.0 million principal amount of old notes are outstanding. The terms of the new notes are identical in all material respects to the terms of the old notes, except that the transfer restrictions applicable to the old notes are not applicable to the new notes. Old notes may be tendered only in $1,000 increments. Subject to the satisfaction or waiver of specified conditions, we will exchange the new notes for all old notes that are validly tendered and not withdrawn prior to the expiration of the exchange offer. See "The Exchange Offer -- Terms of the Exchange Offer." Upon completion of the exchange offer, there may be no market for the old notes and you may have difficulty selling them. See "Risk Factors - If you fail to exchange properly your old notes for new notes, you will continue to hold notes subject to transfer restrictions." Expiration Date............................. The exchange offer will expire at 5:00 p.m., New York City time, on _____________, 2004, unless extended, in which case the expiration date will mean the latest date and time to which we extend the exchange offer. 9 Conditions to the Exchange Offer............ The exchange offer is not subject to conditions other than that: o it shall not violate applicable law or any applicable interpretation of the staff of the Commission, o no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair our ability to proceed with the exchange offer, or o all governmental approvals which we deem necessary for the completion of the exchange offer shall have been obtained. The exchange offer is not conditioned upon any minimum principal amount of old notes being tendered for exchange. Procedures for Tendering Old Notes......................... If you wish to tender your old notes for new notes pursuant to the exchange offer, you must transmit to Wachovia Bank, National Association, as exchange agent, on or before the expiration date, either: o a computer-generated message transmitted through The Depository Trust Company's Automated Tender Offer Program system and received by the exchange agent and forming a part of a confirmation of book-entry transfer in which you acknowledge and agree to be bound by the terms of the letter of transmittal; or o a properly completed and duly executed letter of transmittal, which accompanies this prospectus, or a facsimile of the letter of transmittal, together with your old notes and any other required documentation, to the exchange agent at its address listed in this prospectus and on the front cover of the letter of transmittal. If you cannot satisfy either of these procedures on a timely basis, then you should comply with the guaranteed delivery procedures described below. By executing the letter of transmittal, you will make the representations to us described under "The Exchange Offer-Procedures for Tendering." Special Procedures for Beneficial Owners........................... If you are a beneficial owner whose old notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your old notes in the exchange offer, you should contact the 10 registered holder promptly and instruct the registered holder to tender on your behalf. If you wish to tender on your own behalf, you must either: o make appropriate arrangements to register ownership of the old notes in your name; or o obtain a properly completed bond power from the registered holder, before completing and executing the letter of transmittal and delivering your old notes. Guaranteed Delivery Procedures.............. If you wish to tender your old notes and time will not permit the documents required by the letter of transmittal to reach the exchange agent before the expiration date, or the procedure for book-entry transfer cannot be completed on a timely basis, you must tender your old notes according to the guaranteed delivery procedure described in this prospectus under "The Exchange Offer-Guaranteed Delivery Procedures." Acceptance of Old Notes and Delivery of New Notes....................... Subject to the satisfaction or waiver of the conditions to the exchange offer, we will accept for exchange any and all old notes which are validly tendered in the exchange offer and not withdrawn before 5:00 p.m., New York City time, on the expiration date. Withdrawal Rights........................... You may withdraw the tender of your old notes at any time before 5:00 p.m., New York City time, on the expiration date, by complying with the procedures for withdrawal described in this prospectus under "The Exchange Offer-Withdrawal of Tenders." Return of Notes............................. If we do not accept any tendered old notes for the reasons described in the terms and conditions of the exchange offer or if you withdraw any tendered old notes or submit old notes for a greater principal amount than you desire to exchange, we will return the unaccepted, withdrawn or non-exchanged old notes without expense to you as promptly as practicable after the expiration or termination of the exchange offer. See "The Exchange Offer-Return of Notes." Certain Federal Income Tax Consequences............................ The exchange of old notes for new notes should not be a taxable event for United States Federal income tax purposes. For a discussion of the material Federal income tax consequences relating to the exchange of notes, see "Federal Income Tax Considerations." 11 Exchange Agent.............................. Wachovia Bank, National Association, the trustee under the indenture governing the old notes, is serving as the exchange agent. Consequence of Failure to Exchange Notes.............................. If you do not exchange your old notes for new notes, you will continue to be subject to the restrictions on transfer provided in the old notes and in the indenture governing the old notes. In general, the old notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently plan to register the old notes under the Securities Act. 12 SUMMARY OF THE TERMS OF THE NEW NOTES The summary below describes the material terms of the new notes. Some of the terms and conditions described below are subject to important limitations and exceptions. The "Description of the New Notes" section of this prospectus contains a more detailed description of the terms and conditions of the new notes. The terms of the new notes are substantially identical to those of the old notes, except that the transfer restrictions applicable to the old notes are not applicable to the new notes. The new notes will evidence the same debt as the old notes. The new notes and the old notes will be governed by the same indenture. Issuer...................................... Armor Holdings, Inc. Securities.................................. $150.0 million in principal amount of 8 1/4% Senior Subordinated Notes due 2013. Maturity.................................... August 15, 2013. Interest.................................... Annual rate: 8 1/4%. Payment frequency: every six months on February 15 and August 15. First payment: February 15, 2004. Guarantees.................................. The new notes will be unconditionally guaranteed in full on a senior subordinated basis by all of our existing and future domestic restricted subsidiaries except USDS, Inc. If we cannot make payments on the new notes when they are due, the guarantors must make them instead. See "Risk Factors - Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors" and "Description of the New Notes." Ranking..................................... The new notes and the guarantees will be unsecured senior subordinated obligations. Accordingly, they will rank: o behind all of our and the guarantors' existing and future senior debt; o equally with all our and the guarantors' existing and future unsecured senior subordinated obligations issued under the indenture and which do not expressly provide that they are subordinated to the new notes; and o ahead of any of our and the guarantors' future debt that expressly provides that it is subordinated to the new notes. On a pro forma basis as of September 30, 2003, the notes and the guarantees would have been subordinated to approximately $45.4 million of senior debt. In addition, there would have been approximately $60.0 million of 13 unused commitments under our senior credit facility. Optional Redemption......................... On or after August 15, 2008, we may redeem some or all of the notes at any time at the redemption prices listed under "Description of the New Notes--Optional Redemption." Prior to August 15, 2006, we may redeem up to 35% of the new notes with the proceeds from certain public equity offerings at the redemption price listed under "Description of the New Notes--Optional Redemption." Mandatory Offer to Repurchase................ If we sell certain assets or experience certain types of changes of control, we must offer to repurchase the new notes at the prices listed in the section "Description of the New Notes--Repurchase at the Option of Holders." There can be no assurance that we will have available funds sufficient to repurchase all of the new notes that might be tendered by holders of the new notes seeking to accept the repurchase offer. See "Risk Factors-We may not have the ability to raise the funds necessary to finance the change of control offer required by the indenture." Certain Covenants........................... The indenture governing the new notes will, among other things, limit our and the ability of certain of our subsidiaries to: o incur additional indebtedness; o pay dividends or distributions on, or redeem or repurchase, capital stock; o make investments; o engage in certain transactions with affiliates; o incur liens; o transfer or sell assets; and o consolidate, merge or transfer all or substantially all of our assets. For more details, see "Description of the New Notes." Use of Proceeds............................. We will not receive any proceeds from the exchange offer. YOU SHOULD REFER TO THE SECTION ENTITLED "RISK FACTORS" FOR AN EXPLANATION OF MATERIAL RISKS OF INVESTING IN THE NEW NOTES. 14 RECENT DEVELOPMENTS ACQUISITIONS AND DIVESTITURES Sale of Services Division On November 26, 2003, we sold our Services Division to management and a group of private investors led by Granville Baird Capital Partners. We realized approximately $31.4 million in cash at the closing of the sale, and expect to receive an additional $2.3 million in cash during the 12 month period following the closing. Simula, Inc. Acquisition On December 9, 2003, we completed our acquisition of Simula, Inc., an Arizona corporation, pursuant to the Agreement and Plan of Merger, dated as of August 29, 2003, by and among Armor Holdings, AHI Bulletproof Acquisition Corp., a wholly-owned subsidiary of Armor Holdings, and Simula. The consummation of the merger followed the Special Meeting of Shareholders of Simula held on December 5, 2003, at which the requisite shareholder approval was obtained. In the merger, we acquired all of the outstanding common stock of Simula and retired a majority of Simula's outstanding indebtedness for $110.5 million in cash. Of this amount, approximately $31 million principal amount of 8% debentures will remain outstanding for approximately 30 days at which time we will repay these debentures, plus accrued interest, in their entirety. As of the date of this prospectus, Simula's outstanding 8% debentures have been paid in full. After payment of 100% of the outstanding indebtedness and transaction expenses, the merger consideration payable to Simula shareholders at closing pursuant to the merger agreement was approximately $43.5 million or approximately $3.21 per share. The source of the funds used in the acquisition was our working capital, which was derived from proceeds received from our private placement of $150 million aggregate principal amount of 8 1/4% Senior Subordinated Notes due 2013. Comprehensive information on the merger is set out in Simula's proxy statement dated November 10, 2003, filed with the Securities and Exchange Commission. Hatch Imports, Inc. Acquisition On December 16, 2003, we acquired all of the issued and outstanding common stock of Hatch Imports, Inc. for $7.5 million dollars in cash. Hatch designs, imports and distributes a variety of specialty gloves and accessories, including goggles, hoods, riot gear and bags for law enforcement, military, corrections, medical, safety and other markets. FORMATION OF THE AEROSPACE AND DEFENSE GROUP In connection with our acquisition of Simula, we formed our Aerospace and Defense Group to consolidate our military and government business. The Aerospace and Defense Group is comprised of the recently acquired Simula business and our military and government business that was previously conducted through our Mobile Security Division. For more information regarding the Aerospace and Defense Group, please see the section entitled "The Company" included in this prospectus. ZYLON(R) INVESTIGATION Second Chance Body Armor, Inc., a body armor manufacturer and competitor to Armor Holdings, has notified its customers of a potential safety issue with their Ultima(R) and Ultimax(R) models. Second Chance Body Armor has claimed that Zylon(R) fiber, which is made by Toyobo, a Japanese 15 corporation, and used in the ballistic fabric construction of those two models, degraded more rapidly than originally anticipated. Second Chance Body Armor has also stated that the Zylon(R) degradation problem affects the entire body armor industry, not just their products. Both private claimants and State Attorneys General have already commenced legal action against Second Chance Body Armor based upon its Ultima(R) and Ultimax(R) model vests. Second Chance Body Armor licenses from us a certain patented technology which is used in the body armor it manufactures, but to our knowledge, no lawsuit has yet been brought against Second Chance Body Armor based upon this licensed technology. We use Zylon(R) fiber in a number of concealable body armor models for law enforcement, but our design approach and construction are very different. We have been testing our Zylon(R)-based vests since their 2000 introduction and to date these tests of our Zylon(R)-based vests show no unanticipated degradation in ballistic performance. In addition, to our knowledge, no other body armor manufacturer has reported or experienced similar problems as those cited by Second Chance Body Armor. Finally, the National Institute of Justice tests and certifies each of our body armor designs before we begin to produce or sell any particular model. Following the Second Chance Body Armor assertions, several key law enforcement associations have raised the issue to the U.S. Department of Justice and Attorney General's Office. The U.S. Attorney General has asked the U.S. Department of Justice to investigate the concerns and produce information to clarify the issues. We support the Attorney General's directive and the investigation. As we have licensed our technology to Second Chance Body Armor, we may be impacted by the pending claims against Second Chance Body Armor and the investigation being conducted by the U.S. Department of Justice. 16 RISK FACTORS Our business, operations and financial condition are subject to various risks. The material risks are described below, and you should take these risks into account in evaluating us or any investment decision involving us or in deciding whether to tender your old notes in exchange for new notes in this exchange offer. This section does not describe all risks applicable to us, our industry or our business, and it is intended only as a summary of the material risk factors. The risk factors set forth below are generally applicable to the old notes as well as the new notes. RISKS RELATING TO THE NEW NOTES IF YOU FAIL TO EXCHANGE PROPERLY YOUR OLD NOTES FOR NEW NOTES, YOU WILL CONTINUE TO HOLD OLD NOTES SUBJECT TO TRANSFER RESTRICTIONS. The new notes will be issued in exchange for old notes only after timely receipt by the exchange agent of the old notes, a properly completed and duly executed letter of transmittal and all other required documents. Therefore, if you desire to tender your old notes in exchange for new notes, you should allow sufficient time to ensure timely delivery. Your failure to follow these procedures may result in delay in receiving new notes on a timely basis or in your loss of the right to receive new notes. Neither we nor the exchange agent is under any duty to give notification of defects or irregularities with respect to tenders of old notes for exchange. If you tender old notes in the exchange offer for the purpose of participating in a distribution of the new notes, you will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. See "The Exchange Offer-Procedures for Tendering" and "Plan of Distribution". If you do not exchange your old notes for new notes pursuant to the exchange offer, you will continue to be subject to the restrictions on transfer of the old notes as set forth in the legend on the old notes. In general, the old notes may not be offered or sold unless registered under the Securities Act, or pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently intend to register the old notes under the Securities Act. To the extent that old notes are tendered and accepted in the exchange offer, the trading market for untendered and tendered but unaccepted old notes could be adversely affected. OUR SIGNIFICANT INDEBTEDNESS COULD ADVERSELY AFFECT OUR FINANCIAL HEALTH, AND PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER THE NOTES. We have a significant amount of indebtedness. Our significant indebtedness could: o make it more difficult for us to satisfy our obligations with respect to the new notes; o increase our vulnerability to general adverse economic and industry conditions; o require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, acquisitions and investments and other general corporate purposes; o limit our flexibility in planning for, or reacting to, changes in our business and the markets in which we operate; 17 o place us at a competitive disadvantage compared to our competitors that have less debt; and o limit, among other things, our ability to borrow additional funds. The following table sets forth our total debt, total stockholders' equity, total capitalization and ratio of debt to total capitalization: September 30, 2003 (Unaudited) (Dollars in Thousands) Total debt $168,148 Total stockholders' equity $291,140 ------------------------- Total capitalization $459,288 ========================= Ratio of debt to total 36.6% capitalization The terms of the indenture governing the notes and the senior credit facility allow us to issue and incur additional debt upon satisfaction of certain conditions. See "Description of the New Notes" for a description of our indenture and "Description of Senior Indebtedness" for a description of our senior credit facility. If new debt is added to current debt levels, the related risks described above could increase. YOUR RIGHT TO RECEIVE PAYMENTS ON THE NOTES IS JUNIOR TO OUR EXISTING SENIOR INDEBTEDNESS AND POSSIBLY ALL OF OUR FUTURE BORROWINGS. FURTHER, THE GUARANTEES OF THE NEW NOTES ARE JUNIOR TO ALL OF THE GUARANTORS' EXISTING SENIOR INDEBTEDNESS AND POSSIBLY TO ALL THEIR FUTURE BORROWINGS. The notes and the guarantees rank behind all of our and the guarantors' existing senior indebtedness and all of our and the guarantors' future senior indebtedness. See "Description of Senior Indebtedness" for a description of our senior credit facility. On a pro forma basis as of September 30, 2003, the notes and the guarantees would have been subordinated to approximately $5.2 million of senior debt. In addition, our senior credit facility would have permitted up to approximately $60 million of additional borrowings, subject to compliance with the covenants and conditions to borrowing under the senior credit facility, which borrowings would be senior to the notes and the guarantees. We will be permitted to borrow substantial additional indebtedness, including senior debt, in the future. As a result of this subordination, upon any distribution to our creditors or the creditors of the guarantors in a bankruptcy, liquidation or reorganization or similar proceedings relating to us or the guarantors or our or the guarantors' property, the holders of our senior debt and the senior debt of the guarantors will be entitled to be paid in full in cash before any payment may be made with respect to the notes or the guarantees. In addition, all payments on the new notes and the guarantees will be blocked in the event of a payment default on senior debt and may be blocked for up to 179 consecutive days in the event of certain non-payment defaults on designated senior debt. 18 In the event of a bankruptcy, liquidation or reorganization or similar proceeding relating to us or the guarantors, the indenture relating to the new notes will require that amounts otherwise payable to holders of the new notes in a bankruptcy or similar proceeding be paid to holders of senior debt instead until the holders of senior debt are paid in full. As a result, holders of the new notes may not receive all amounts owed to them and may receive less, ratably, than holders of trade payables and other unsubordinated indebtedness in any such proceeding. SINCE THE NOTES ARE UNSECURED, YOUR RIGHT TO ENFORCE REMEDIES IS LIMITED BY THE RIGHTS OF HOLDERS OF SECURED DEBT. In addition to being contractually subordinated to all existing and future senior indebtedness, our obligations under the new notes will be unsecured while obligations under our senior credit facility will be secured by substantially all of our assets and those of our subsidiaries. If we become insolvent or are liquidated, or if payment under the senior credit facility is accelerated, the lenders under the senior credit facility are entitled to exercise the remedies available to a secured lender under applicable law. These lenders have a claim on all assets securing the senior credit facility before the holders of unsecured debt, including the notes. NOT ALL OF OUR SUBSIDIARIES WILL GUARANTEE OUR OBLIGATIONS UNDER THE NOTES, AND THE ASSETS OF THE NON-GUARANTOR SUBSIDIARIES MAY NOT BE AVAILABLE TO MAKE PAYMENTS ON THE NOTES. Our present and future domestic restricted subsidiaries will guarantee the notes. Payments on the notes are only required to be made by us and the subsidiary guarantors. As a result, no payments are required to be made from assets of subsidiaries that do not guarantee the notes, unless those assets are transferred by dividend or otherwise to us or a subsidiary guarantor. On a pro forma basis, as of and for the year ended December 31, 2002, the aggregate total assets and net sales of our non-guarantor subsidiaries were $100.3 million and $75.4 million, respectively, or 27.3% and 24.7%, respectively, of our total assets and net sales. In the event of a bankruptcy, liquidation or reorganization of any of the non-guarantor subsidiaries, holders of their liabilities, including their trade creditors, will be entitled to payment of their claims from the assets of those subsidiaries before any assets are made available for distribution to us. As a result, the notes are effectively subordinated to all indebtedness and other liabilities of the non-guarantor subsidiaries. WE WILL REQUIRE A SIGNIFICANT AMOUNT OF CASH TO SERVICE OUR INDEBTEDNESS. OUR ABILITY TO GENERATE CASH DEPENDS ON MANY FACTORS BEYOND OUR CONTROL. Our ability to make payments on and to refinance our indebtedness, including the notes and amounts borrowed under our senior credit facility, and to fund planned capital expenditures and expansion efforts and strategic acquisitions we may make in the future, if any, will depend on our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive and other factors that are beyond our control. Based on our current level of operations, we believe our cash flow from operations, together with available cash and available borrowings under our senior credit facility, will be adequate to meet future liquidity needs for at least the next twelve months. However, we cannot assure you that our business will generate sufficient cash flow from operations in the future, that our currently 19 anticipated growth in revenues and cash flow will be realized on schedule or that future borrowings will be available to us under the senior credit facility in an amount sufficient to enable us to service indebtedness, including the new notes, or to fund other liquidity needs. We may need to refinance all or a portion of our indebtedness, including the notes and our senior credit facility, on or before maturity. We cannot assure you that we will be able to do so on commercially reasonable terms or at all. THE INDENTURE AND OUR SENIOR CREDIT FACILITY CONTAIN VARIOUS COVENANTS WHICH LIMIT OUR MANAGEMENT'S DISCRETION IN THE OPERATION OF OUR BUSINESS. Our senior credit facility and the indenture contain various provisions that limit our management's discretion by restricting our and certain of our subsidiaries' ability to, among other things: o incur additional indebtedness; o pay dividends or distributions on, or redeem or repurchase, capital stock; o make investments; o engage in transactions with affiliates; o incur liens; o transfer or sell assets; and o consolidate, merge or transfer all or substantially all of our assets. In addition, our senior credit facility requires us to meet certain financial ratios. Any failure to comply with the restrictions of our senior credit facility, the indenture or any other subsequent financing agreements may result in an event of default. An event of default may allow the creditors, if the agreements so provide, to accelerate the related debt as well as any other debt to which a cross-acceleration or cross-default provision applies. In addition, the lenders may be able to terminate any commitments they had made to supply us with further funds. WE MAY NOT HAVE THE ABILITY TO RAISE THE FUNDS NECESSARY TO FINANCE THE CHANGE OF CONTROL OFFER REQUIRED BY THE INDENTURE. Upon the occurrence of certain specific kinds of change of control events, we will be required to offer to repurchase all outstanding new notes. However, it is possible that we will not have sufficient funds at the time of the change of control to make the required repurchase of new notes. In addition, restrictions in our senior credit facility prohibit repurchases of the notes unless a waiver is obtained from the lenders or our senior credit facility is repaid in full. If we fail to repurchase the new notes following a change of control, we will be in default under the indenture, which will result in a cross-default under our senior credit facility. Any future debt which we incur may also contain restrictions on repayment of the notes. In addition, certain important corporate events, such as leveraged recapitalizations, that would increase the level of our indebtedness would not constitute a change of control under the indenture. 20 A PUBLIC MARKET FOR THE NEW NOTES MAY NOT DEVELOP. There can be no assurance that a public market for the new notes will develop or, if such a market develops, as to the liquidity of the market. If a market were to develop, the new notes could trade at prices that may be higher or lower than their principal amount. We do not intend to apply for listing of the new notes on any securities exchange or for quotation of the new notes on any automated quotation system. The initial purchaser, Wachovia Capital Markets, LLC, has previously made a market in the old notes, and we have been advised that the initial purchaser currently intends to make a market in the new notes, as permitted by applicable laws and regulations, after consummation of the exchange offer. The initial purchaser is not obligated, however, to make a market in the old notes or the new notes, and any market-making activity may be discontinued at any time without notice at the sole discretion of the initial purchaser. If an active public market does not develop or continue, the market price and liquidity of the new notes may be adversely affected. In addition, the liquidity of the trading market in the new notes, and the market price quoted for the new notes, may be adversely affected by changes in the overall market for high-yield securities and by changes in our financial performance or prospects or in the prospects for companies in our industry generally. As a result, you cannot be sure that an active trading market will develop for the new notes. FEDERAL AND STATE STATUTES ALLOW COURTS, UNDER SPECIFIC CIRCUMSTANCES, TO VOID GUARANTEES AND REQUIRE NOTEHOLDERS TO RETURN PAYMENTS RECEIVED FROM GUARANTORS. If a bankruptcy case or lawsuit is initiated by unpaid creditors of any guarantor, the debt represented by the guarantees entered into by the guarantors may be reviewed under the Federal bankruptcy law and comparable provisions of state fraudulent transfer laws. Under these laws, a guarantee could be voided, or claims in respect of the guarantee could be subordinated to certain obligations of a guarantor if, among other things, the guarantor, at the time it entered into the guarantee: o received less than reasonably equivalent value or fair consideration for entering into the guarantee; and o either: o was insolvent or rendered insolvent by reason of entering into a guarantee; or o was engaged in a business or transaction for which the guarantor's remaining assets constituted unreasonably small capital; or o intended to incur, or believed that it would incur, debts or contingent liabilities beyond its ability to pay them as they become due. In addition, any payment by a guarantor could be voided and required to be returned to the guarantor or to a fund for the benefit of the guarantor's creditors under those circumstances. If a guarantee of a subsidiary were voided as a fraudulent conveyance or held unenforceable for any other reason, holders of the new notes would be solely creditors of our company and creditors of our other subsidiaries that have validly guaranteed the new notes. The new notes then would be effectively subordinated to all liabilities of the subsidiary whose guarantee was voided. 21 The measures of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a guarantor would be considered insolvent if: o the sum of its debts, including contingent liabilities, were greater than the fair saleable value of all of its assets; or o the present fair saleable value of its assets were less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or o it could not pay its debts or contingent liabilities as they become due. If the claims of the holders of the new notes against any subsidiary were subordinated in favor of other creditors of the subsidiary, the other creditors would be entitled to be paid in full before any payment could be made on the new notes. If one or more of the guarantees is voided or subordinated, we cannot assure you that after providing for all prior claims there would be sufficient assets remaining to satisfy the claims of the holders of the new notes. Based upon financial and other information, we believe that the guarantees are being incurred for proper proposes and in good faith and that we, and our subsidiaries that are guarantors, on a consolidated basis, are solvent and will continue to be solvent after this offering is completed, will have sufficient capital for carrying on our business after the issuance of the new notes and will be able to pay our debts as they mature. We cannot assure you, however, as to the standard a court would apply in making these determinations or that a court would agree with our conclusions in this regard. RISKS RELATED TO ARMOR HOLDINGS' INDUSTRY THE PRODUCTS WE SELL ARE INHERENTLY RISKY AND COULD GIVE RISE TO PRODUCT LIABILITY AND OTHER CLAIMS. The products that we manufacture are typically used in applications and situations that involve high levels of risk of personal injury. Failure to use our products for their intended purposes, failure to use them properly, their malfunction, or, in some limited circumstances, even correct use of our products, could result in serious bodily injury or death. Our products include: body armor designed to protect against ballistic and sharp instrument penetration; less-lethal products such as less-lethal munitions, pepper sprays, distraction devices and flameless expulsion grenades; various models of police batons made of wood, alloy steel, acetate, aluminum and polycarbonate products; vehicle and hard armoring systems; and police duty gear. Claims have been made and are pending against certain of our subsidiaries, involving permanent physical injury and death caused by self-defense sprays and other munitions intended to be less-lethal. In addition, the manufacture and sale of certain less-lethal products may be the subject of product liability claims arising from the design, manufacture or sale of such goods. If these claims are decided against us and we are found to be liable, we may be required to pay substantial damages and our insurance costs may increase significantly as a result. Also, a significant or extended lawsuit, such as a class action, could also divert significant amounts of management's time and attention. We cannot assure you that our insurance coverage would be sufficient to cover the payment of any potential claim. In addition, we cannot assure you that this or 22 any other insurance coverage will continue to be available or, if available, that we will be able to obtain it at a reasonable cost. Our cost of obtaining insurance coverage has risen substantially since September 11, 2001. Any material uninsured loss could have a material adverse effect on our business, financial condition and results of operations. In addition, the inability to obtain product liability coverage would prohibit us from bidding for orders from certain governmental customers since, at present, many bids from governmental entities require such coverage, and any such inability would have a material adverse effect on our business, financial condition and results of operations. Both private claimants and State Attorneys General have already commenced legal action against Second Chance Body Armor based upon its Ultima(R) and Ultimax(R) model vests. Second Chance Body Armor licenses from us a certain patented technology which is used in the body armor it manufactures, but to our knowledge, no lawsuit has yet been brought against Second Chance Body Armor based upon this licensed technology. In addition, the U.S. Attorney General has asked the U.S. Department of Justice to investigate the claims regarding the Zylon(R) vests. As we have licensed our technology to Second Chance Body Armor, we may be impacted by the pending claims against Second Chance Body Armor and the investigation being conducted by the U.S. Department of Justice. If we are included in the claims pending against Second Chance Body Armor and the investigation being conducted by the U.S. Department of Justice, we cannot assure you that any judgment, settlement or resolution against us will not have a material adverse effect on our business, financial condition and results of operations. WE ARE SUBJECT TO EXTENSIVE GOVERNMENT REGULATION AND OUR FAILURE OR INABILITY TO COMPLY WITH THESE REGULATIONS COULD MATERIALLY RESTRICT OUR OPERATIONS AND SUBJECT US TO SUBSTANTIAL PENALTIES. We are subject to federal licensing requirements with respect to the sale in foreign countries of certain of our products. In addition, we are obligated to comply with a variety of federal, state and local regulations governing certain aspects of our operations and workplace, including regulations promulgated by, among others, the U.S. Departments of Commerce, State and Transportation, the U.S. Environmental Protection Agency and the U.S. Bureau of Alcohol, Tobacco and Firearms. Additionally, the failure to obtain applicable governmental approval and clearances could adversely affect our ability to continue to service the government contracts we maintain. Furthermore, we have material contracts with governmental entities and are subject to rules, regulations and approvals applicable to government contractors. We are also subject to routine audits to assure our compliance with these requirements. In addition, a number of our employees involved with certain of our federal government contracts are required to obtain specified levels of security clearances. Our business may suffer if we or our employees are unable to obtain the security clearances that are needed to perform services contracted for the Department of Defense, one of our major customers. Our failure to comply with these contract terms, rules or regulations could expose us to substantial penalties, including the loss of these contracts and disqualification as a U.S. government contractor. Like other companies operating internationally, we are subject to the Foreign Corrupt Practices Act and other laws which prohibit improper payments to foreign governments and their officials by U.S. and other business entities. We operate in countries known to experience endemic corruption. Our extensive operations in such countries creates the risk of an unauthorized payment by one of our employees or agents which would be in violation of various laws including the Foreign Corrupt Practices Act. Violations of the Foreign Corrupt Practices Act may result in severe criminal penalties which could have a material adverse effect on our business, financial condition and results of operations. 23 WE HAVE SIGNIFICANT INTERNATIONAL OPERATIONS AND ASSETS AND ARE THEREFORE SUBJECT TO ADDITIONAL FINANCIAL AND REGULATORY RISKS. We sell our products and services in foreign countries and seek to increase our level of international business activity. Our overseas operations are subject to various risks, including: U.S.-imposed embargoes of sales to specific countries (which could prohibit sales of our products there); foreign import controls (which may be arbitrarily imposed and enforced and which could interrupt our supplies or prohibit customers from purchasing our products); exchange rate fluctuations; dividend remittance restrictions; expropriation of assets; war, civil uprisings and riots; government instability; the necessity of obtaining government approvals for both new and continuing operations; and legal systems of decrees, laws, taxes, regulations, interpretations and court decisions that are not always fully developed and that may be retroactively or arbitrarily applied. One component of our strategy is to expand our operations into selected international markets. Military procurement, for example, has traditionally had a large international base. Countries in which we are actively marketing include Germany, Canada, France, Italy, the United Kingdom, Norway, Japan, India, Korea and Australia. We, however, may be unable to execute our business model in these markets or new markets. Further, foreign providers of competing products and services may have a substantial advantage over us in attracting consumers and businesses in their country due to earlier established businesses in that country, greater knowledge with respect to the cultural differences of consumers and businesses residing in that country and/or their focus on a single market. We expect to continue to experience higher costs as a percentage of revenues in connection with the development and maintenance of international products and services. In pursuing our international expansion strategy, we face several additional risks, including: o foreign laws and regulations, which may vary country by country, that may impact how we conduct our business; o higher costs of doing business in foreign countries, including different employment laws; o potential adverse tax consequences if taxing authorities in different jurisdictions worldwide disagree with their interpretation of various tax laws or their determinations as to the income and expenses attributable to specific jurisdictions, which could result in our paying additional taxes, interest and penalties; o technological differences that vary by marketplace, which we may not be able to support; o longer payment cycles and foreign currency fluctuations; o economic downturns; and o revenue growth outside of the United States may not continue at the same rate if it is determined that we have already launched our products and services in the most significant markets. We may also be subject to unanticipated income taxes, excise duties, import taxes, export taxes or other governmental assessments. In addition, a percentage of the payments to us in our international markets are often in local currencies. Although most of these currencies are presently convertible into U.S. dollars, we cannot be sure that convertibility will continue. Even if currencies are convertible, the rate at which they convert is subject to substantial fluctuation. Our ability to transfer currencies into or out of local currencies may be restricted or limited. Any of these events could result in a loss of business or other unexpected costs which could reduce revenue or profits and have a material adverse effect on our business, financial condition and results of operations. 24 We routinely operate in areas where local government policies regarding foreign entities and the local tax and legal regimes are often uncertain, poorly administered and in a state of flux. We cannot, therefore, be certain that we are in compliance with, or will be protected by, all relevant local laws and taxes at any given point in time. A subsequent determination that we failed to comply with relevant local laws and taxes could have a material adverse effect on our business, financial condition and results of operations. One or more of these factors could adversely effect our future international operations and, consequently, could have a material adverse effect on our business, financial condition and results of operation. RISKS RELATED TO ARMOR HOLDINGS' BUSINESS MANY OF OUR CUSTOMERS HAVE FLUCTUATING BUDGETS WHICH MAY CAUSE SUBSTANTIAL FLUCTUATIONS IN OUR RESULTS OF OPERATIONS. Customers for our products include federal, state, municipal, foreign and military, law enforcement and other governmental agencies. Government tax revenues and budgetary constraints, which fluctuate from time to time, can affect budgetary allocations for these customers. Many domestic and foreign government agencies have in the past experienced budget deficits that have led to decreased spending in defense, law enforcement and other military and security areas. Our results of operations may be subject to substantial period-to-period fluctuations because of these and other factors affecting military, law enforcement and other governmental spending. For example, we attribute part of the decline in our Products Division revenue during the first quarter of 2001 with the timing of the Bulletproof Vest Partnership Act, which provides federal matching funds to law enforcement agencies purchasing bullet resistant vests. We believe that many agencies delayed their purchasing decisions during the first quarter of 2001 until such federal funds were fully allocated. A reduction of funding for federal, state, municipal, foreign and other governmental agencies could have a material adverse effect on sales of our products and our business, financial condition and results of operations. THE LOSS OF, OR A SIGNIFICANT REDUCTION IN, U.S. MILITARY BUSINESS WOULD HAVE A MATERIAL ADVERSE EFFECT ON US. U.S. military contracts account for a significant portion of the business of our Aerospace and Defense Group. The U.S. military funds these contracts in annual increments. These contracts require subsequent authorization and appropriation that may not occur or that may be greater than or less than the total amount of the contract. Changes in the U.S. military's budget, spending allocations, and the timing of such spending could adversely affect our ability to receive future contracts. None of our contracts with the U.S. military have a minimum purchase commitment and the U.S. military generally has the right to cancel its contracts unilaterally without prior notice. Our Aerospace and Defense Group is the sole-source provider to the U.S. military for up-armoring of the U.S. military's High Mobility Multi-purpose Wheeled Vehicles ("HMMWV"). Up-Armored HMMWVs, and related programs such as maintenance, spare parts and engineering services associated with Up-Armored HMMWVs, accounted for approximately 47% of the sales of the Aerospace and Defense Group in 2003 on a pro forma basis after giving effect to our acquisition of Simula. The HMMWVs are manufactured by AM General Corporation under separate U.S. military contracts. Should production or deliveries of HMMWVs be significantly interrupted, or should other single source suppliers significantly interrupt deliveries of our components for up-armoring the HMMWVs, we will not be able to deliver such up-armoring systems for the HMMWVs to the U.S. military on schedule, which could have a material adverse effect on our business, financial condition and results of operations. Our Aerospace and Defense Group also manufactures for the U.S. military helicopter seating systems, aircraft and land vehicle armor systems, protective equipment for military personnel and other technologies used to protect soldiers in a variety of life-threatening or catastrophic situations. The Aerospace and Defense Group's products are deployed on a wide range of high-profile military platforms such as the AH-64 Apache and the UH-60 Black Hawk helicopters, the C-17 Globemaster III Transport Aircraft, the M1117 Guardian Armored Security Vehicle, the M998 High Mobility Multipurpose Wheeled Vehicle, and body-worn equipment for personal protection of the U.S. Army, Marine Corps, and Air Force Special Operations Forces. The loss of, or a significant reduction in, U.S. military business for our helicopter seating systems, aircraft and land vehicle armor systems and other protective equipment could have a material adverse effect on our business, financial condition and results of operations. 25 WE MAY LOSE MONEY OR GENERATE LESS THAN EXPECTED PROFITS ON OUR FIXED-PRICE CONTRACTS. Some of our government contracts provide for a predetermined, fixed price for the products we make regardless of the costs we incur. Therefore, fixed-price contracts require us to price our contracts by forecasting our expenditures. When making proposals for fixed-price contracts, we rely on our estimates of costs and timing for completing these projects. These estimates reflect management's judgments regarding our capability to complete projects efficiently and timely. Our production costs may, however, exceed forecasts due to unanticipated delays or increased cost of materials, components, labor, capital equipment or other factors. Therefore, we may incur losses on fixed price contracts that we had expected to be profitable, or such contracts may be less profitable than expected, which could have a material adverse effect on our business, financial condition and results of operations. OUR BUSINESS IS SUBJECT TO VARIOUS LAWS AND REGULATIONS FAVORING THE U.S. GOVERNMENT'S CONTRACTUAL POSITION, AND OUR FAILURE TO COMPLY WITH SUCH LAWS AND REGULATIONS COULD HARM OUR OPERATING RESULTS AND PROSPECTS. As a contractor to the U.S. government, we must comply with laws and regulations relating to the formation, administration and performance of the federal government contracts that affect how we do business with our clients and may impose added costs on our business. These rules generally favor the U.S. government's contractual position. For example, these regulations and laws include provisions that subject contracts we have been awarded to: o protest or challenge by unsuccessful bidders; and o unilateral termination, reduction or modification by the government. The accuracy and appropriateness of certain costs and expenses used to substantiate our direct and indirect costs for the U.S. government under both cost-plus and fixed-price contracts are subject to extensive regulation and audit by the Defense Contract Audit Agency, an arm of the U.S. Department of Defense. Responding to governmental audits, inquiries or investigations may involve significant expense and divert management's attention. Our failure to comply with these or other laws and regulations could result in contract termination, suspension or debarment from contracting with the federal government, civil fines and damages and criminal prosecution and penalties, any of which could have a material adverse effect on our business, financial condition and results of operations. OUR MARKETS ARE HIGHLY COMPETITIVE AND IF WE ARE UNABLE TO COMPETE EFFECTIVELY, WE WILL BE ADVERSELY AFFECTED. The markets in which we operate include a large number of competitors ranging from small businesses to multinational corporations and are highly competitive. Competitors who are larger, better financed and better known than us may compete more effectively than we can. In order to stay competitive in our industry, we must keep pace with changing technologies and client preferences. If we are unable to differentiate our services from those of our competitors, our revenues may decline. In addition, our competitors have established relationships among themselves or with third parties to increase their ability to address client needs. As a result, new competitors or alliances among competitors may emerge and compete more effectively than we can. There is also a significant industry trend towards consolidation, which may result in the emergence of companies which are better able to compete against us. 26 THERE ARE LIMITED SOURCES FOR SOME OF OUR RAW MATERIALS WHICH MAY SIGNIFICANTLY CURTAIL OUR MANUFACTURING OPERATIONS. The raw materials that we use in manufacturing ballistic resistant garments and up-armored vehicles include: SpectraShield, a patented product of Honeywell, Inc.; Z-Shield, a patented product of Honeywell, Inc.; Zylon, a patented product of Toyobo Co., Ltd.; Kevlar, a patented product of E.I. du Pont de Nemours Co., Inc., or DuPont; and Twaron, a patented product of Akzo-Nobel Fibers, B.V. We purchase these materials in the form of woven cloth from five independent weaving companies. In the event Du Pont or its licensee in Europe cease, for any reason, to produce or sell Kevlar to us, we would utilize these other ballistic resistant materials as a substitute. However, none of SpectraShield, Twaron, Z-Shield or Zylon is expected to become a complete substitute for Kevlar in the near future. We enjoy a good relationship with our suppliers of Kevlar, SpectraShield, Twaron, Z-Shield and Zylon. The use of Zylon and Z-Shield in the design of ballistic resistant vests is a recent technological advancement that is subject to continuing development and study. Toyobo is the only producer of Zylon, and Honeywell is the only producer of Z-Shield. Should these materials become unavailable for any reason, we would be unable to replace them with materials of like weight and strength. Thus, if our supply of any of these materials were materially reduced or cut off or if there were a material increase in the prices of these materials, our manufacturing operations could be adversely affected and our costs increased, and our business, financial condition and results of operations would be materially adversely affected. WE MAY BE UNABLE TO COMPLETE OR INTEGRATE ACQUISITIONS EFFECTIVELY, IF AT ALL, AND AS A RESULT MAY INCUR UNANTICIPATED COSTS OR LIABILITIES OR OPERATIONAL DIFFICULTIES. We intend to grow through the acquisition of businesses and assets that will complement our current businesses. We cannot be certain that we will be able to identify attractive acquisition targets, obtain financing for acquisitions on satisfactory terms or successfully acquire identified targets. Furthermore, we may have to divert our management's attention and our financial and other resources from other areas of our business. Our inability to implement our acquisition strategy successfully may hinder the expansion of our business. Because we depend in part on acquiring new businesses and assets to develop and offer new products, failure to implement our acquisition strategy may also adversely affect our ability to offer new products in line with industry trends. We may not be successful in integrating acquired businesses into our existing operations. Integration may result in unanticipated liabilities or unforeseen operational difficulties, which may be material, or require a disproportionate amount of management's attention. Acquisitions may result in us incurring additional indebtedness or issuing preferred stock or additional common stock. Competition for acquisition opportunities in the industry may rise, thereby increasing our cost of making acquisitions or causing us to refrain from making further acquisitions. In addition, the terms and conditions of our secured revolving credit facility and the indenture governing our 8 1/4% Senior Subordinated Notes impose restrictions on us that, among other things, restrict our ability to make acquisitions. OUR RESOURCES MAY BE INSUFFICIENT TO MANAGE THE DEMANDS IMPOSED BY OUR GROWTH. We have rapidly expanded our operations, and this growth has placed significant demands on our management, administrative, operating and financial resources. The continued growth of our customer base, the types of services and products offered and the geographic markets served can be expected to continue to place a significant strain on our resources. In addition, we cannot easily identify and hire personnel qualified both in the provision and marketing of our security services and products. Our future performance and profitability will depend in large part on our ability to 27 attract and retain additional management and other key personnel; our ability to implement successful enhancements to our management, accounting and information technology systems; and our ability to adapt those systems, as necessary, to respond to growth in our business. ARMOR HOLDINGS IS DEPENDENT ON INDUSTRY RELATIONSHIPS. A number of our products are components in our customers' final products. Accordingly, to gain market acceptance, we must demonstrate that our products will provide advantages to the manufacturers of final products, including increasing the safety of their products, providing such manufacturers with competitive advantages or assisting such manufacturers in complying with existing or new government regulations affecting their products. There can be no assurance that our products will be able to achieve any of these advantages for the products of our customers. Furthermore, even if we are able to demonstrate such advantages, there can be no assurance that such manufacturers will elect to incorporate our products into their final products, or if they do, that our products will be able to meet such customers' manufacturing requirements. Additionally, there can be no assurance that our relationships with our manufacturer customers will ultimately lead to volume orders for our products. The failure of manufacturers to incorporate our products into their final products could have a material adverse effect on our business, financial condition and results of operations. WE MAY BE UNABLE TO PROTECT OUR PROPRIETARY TECHNOLOGY, INCLUDING THE TECHNOLOGIES WE USE TO FURNISH THE UP-ARMORING OF HMMWVS. We are dependent upon a variety of methods and techniques that we regard as proprietary trade secrets. We are also dependent upon a variety of trademarks, service marks and designs to promote brand name development and recognition. We rely on a combination of trade secret, copyright, patent, trademark, unfair competition and other intellectual property laws as well as contractual agreements to protect our rights to such intellectual property. Due to the difficulty of monitoring unauthorized use of and access to intellectual property, however, such measures may not provide adequate protection. It is possible that our competitors may access our intellectual property and proprietary information and use it to their advantage. In addition, there can be no assurance that courts will always uphold our intellectual property rights, or enforce the contractual arrangements that we have entered into to protect our proprietary technology. Any unenforceability or misappropriation of our intellectual property could have a material adverse effect on our business, financial condition and results of operations. Furthermore, we cannot assure you that any pending patent application or trademark application made by us will result in an issued patent or registered trademark, or that, if a patent is issued, it will provide meaningful protection against competitors or competitor technologies. In addition, if we bring or become subject to litigation to defend against claimed infringement of our rights or of the rights of others or to determine the scope and validity of our intellectual property rights, such litigation could result in substantial costs and diversion of our resources which could have a material adverse effect on our business, financial condition and results of operations. Unfavorable results in such litigation could also result in the loss or compromise of our proprietary rights, subject us to significant liabilities, require us to seek licenses from third parties on unfavorable terms, or prevent us from manufacturing or selling our products, any of which could have a material adverse effect on our business, financial condition and results of operations. TECHNOLOGICAL ADVANCES, THE INTRODUCTION OF NEW PRODUCTS, AND NEW DESIGN AND MANUFACTURING TECHNIQUES COULD ADVERSELY AFFECT OUR OPERATIONS UNLESS WE ARE ABLE TO ADAPT TO THE RESULTING CHANGE IN CONDITIONS. 28 Our future success and competitive position depend to a significant extent upon our proprietary technology. We must make significant investments to continue to develop and refine our technologies. We will be required to expend substantial funds for and commit significant resources to the conduct of continuing research and development activities, the engagement of additional engineering and other technical personnel, the purchase of advanced design, production and test equipment, and the enhancement of design and manufacturing processes and techniques. Our future operating results will depend to a significant extent on our ability to continue to provide design and manufacturing services for new products that compare favorably on the basis of time to introduction, cost and performance with the design and manufacturing capabilities. The success of new design and manufacturing services depends on various factors, including utilization of advances in technology, innovative development of new solutions for customer products, efficient and cost-effective services, timely completion and delivery of new product solutions and market acceptance of customers' end products. Because of the complexity of our products, we may experience delays from time to time in completing the design and manufacture of new product solutions. In addition, there can be no assurance that any new product solutions will receive or maintain customer or market acceptance. If we were unable to design and manufacture solutions for new products of our customers on a timely and cost-effective basis, such inability could have a material adverse effect on our business, financial condition and results of operations. WE MAY BE ADVERSELY AFFECTED BY APPLICABLE ENVIRONMENTAL LAWS AND REGULATIONS. We are subject to federal, state, local and foreign laws and regulations governing the protection of the environment and human health, including those regulating discharges to the air and water, the management of wastes, and the control of noise and odors. We cannot assure you that we are at all times in complete compliance with all such requirements. Like all companies in our industry, we are subject to potentially significant fines or penalties if we fail to comply with environmental requirements. Environmental requirements are complex, change frequently, and could become more stringent in the future. Accordingly, we cannot assure you that these requirements will not change in a manner that will require material capital or operating expenditures or will otherwise have a material adverse effect on us in the future. In addition, we are also subject to environmental laws requiring the investigation and clean-up of environmental contamination. We may be subject to liability, including liability for clean-up costs, if contamination is discovered at one of our current or former facilities, in some circumstances even if such contamination was caused by a third party such as a prior owner. We also may be subject to liability if contamination is discovered at a landfill or other location where we have disposed of wastes, notwithstanding that its historic disposal practices may have been in accordance with all applicable requirements. We use Orthochlorabenzalmalononitrile and Chloroacetophenone chemical agents in connection with our production of tear gas, and these chemicals are hazardous and could cause environmental damage if not handled and disposed of properly. Moreover, private parties may bring claims against us based on alleged adverse health impacts or property damage caused by our operations. The amount of liability for cleaning up contamination or defending against private party claims could be material. FORWARD LOOKING STATEMENTS Certain statements we make in this prospectus, and other written or oral statements by us or our authorized officers on our behalf, may constitute "forward looking statements" within the meaning of the Federal securities laws. Forward-looking statements include statements concerning our plans, objectives, goals, strategies, future events, future revenues or performance, capital expenditures, financing needs, plans or intentions relating to acquisitions, our competitive strengths and weaknesses, our business strategy and the trends we anticipate in the industry and economies in which we operate and other information that is not historical information. Words or phrases such as 29 "estimates," "expects," "anticipates," "projects," "plans," "intends," "believes" and variations of such words or similar expressions are intended to identify forward-looking statements. All forward-looking statements, including, without limitation, our examination of historical operating trends, are based upon our current expectations and various assumptions. Our expectations, beliefs and projections are expressed in good faith, and we believe there is a reasonable basis for them, but we cannot assure you that our expectations, beliefs and projections will be realized. Before you invest in the new notes, you should be aware that the occurrence of the events described in the immediately above section captioned "Risk Factors" and otherwise discussed elsewhere in this prospectus or in materials incorporated in this prospectus by reference to our other filings with the Commission, could have a material adverse affect on our business, financial condition and results of operation. The data included in this prospectus regarding markets and ranking, including the size of certain markets and our position and the position of our competitors within these markets, are based on independent industry publications, reports of government agencies or other published industry sources or our estimates based on management's knowledge and experience in the markets in which we operate. Our estimates have been based on information provided by customers, suppliers, trade and business organizations and other contacts in the markets in which we operate. We believe these estimates to be accurate as of the date of this prospectus. However, this information may prove to be inaccurate because of the method by which we obtained some of the data for our estimates or because this information cannot always be verified with complete certainty due to the limits on the availability and reliability of raw data, the voluntary nature of the data gathering process and other limitations and uncertainties inherent in a survey of market size. As a result, you should be aware that market, ranking and other similar data included in this prospectus, and estimates and beliefs based on that data, may not be reliable. USE OF PROCEEDS This exchange offer is intended to satisfy our obligations under the registration rights agreement that we entered into relating to the old notes. We will not receive any proceeds from the exchange offer. You will receive, in exchange for old notes tendered by you in the exchange offer, new notes in like principal amount. The old notes surrendered in exchange for the new notes will be retired and cancelled and cannot be reissued. Accordingly, the issuance of the new notes will not result in any increase of our outstanding debt. We received approximately $147.5 million of net proceeds from the sale of the old notes. We used $15.0 million of the net proceeds to repay all of the outstanding amounts under our Amended and Restated Credit Agreement, dated as of August 22, 2001, $110.5 million of the net proceeds to acquire Simula, Inc. and retire Simula's outstanding indebtedness, and $7.5 million of the net proceeds to acquire Hatch Imports, Inc. The remainder of the net proceeds from the offering of the old notes are being used for general working capital purposes. RATIO OF EARNINGS TO FIXED CHARGES Our ratio of earnings to fixed charges for the five years ended December 31, 2002 and for the nine months ended September 30, 2003 are set forth below: 30
------------------------------------------------------------------------------------------ FOR THE NINE MONTHS FOR THE YEAR ENDED DECEMBER 31, ENDED SEPTEMBER 30, ------------------------------------------------------------------------------------------ 1998 1999 2000 2001 2002 2003 ------------------------------------------------------------------------------------------ Ratio of earnings to fixed charges 27.4 23.8 7.6 5.7 14.9 9.1 ==========================================================================================
The ratios of earnings to fixed charges are calculated as follows: (income before income taxes and minority interest) + (fixed charges) - (capitalized interest) - --------------------------------------------------------------------------------------------- (fixed charges)
31 CAPITALIZATION The following table sets forth our cash and cash equivalents and capitalization as of September 30, 2003 on an actual basis. This table should be read in conjunction with "Use of Proceeds" and "Selected Consolidated Historical Financial Data of Armor Holdings, Inc." The table should also be read in conjunction with our unaudited pro forma condensed consolidated financial statements and our audited and unaudited financial statements, including the related notes thereto, included in and incorporated by reference into this prospectus.
As of September 30, 2003 (Unaudited) (in thousands) Cash and cash equivalents $154,766 Debt including current installments Revolving credit facility (1) -- Other senior debt 5,780 Fair value of interest rate swap 7,976 Senior subordinated notes due 2013 (net of unamortized discount) 147,538 Debt of discontinued operations 6,854 -------- Total debt 168,148 -------- Total stockholders' equity 291,140 -------- Total capitalization $459,288 ========
(1) We have the ability to borrow up to $60 million under our secured revolving credit facility, all of which will be senior debt. 32 SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF ARMOR HOLDINGS, INC. The following selected consolidated financial data is derived from our audited consolidated financial statements as of December 31, 2002 and December 31, 2001, and for each of the three years ended December 31, 2000, which are audited by PricewaterhouseCoopers LLP. The information as of December 31, 2000, December 31, 1999 and December 31, 1998, and for each of the two years ended December 31, 1999 was derived from our consolidated financial statements audited by PricewaterhouseCoopers LLP and subsequently adjusted by management on an unaudited basis to reflect the presentation required for discontinued operations as a result of our decision in July of 2002 to sell our Services Division. The selected consolidated financial information as of, and for each of the nine months ended September 30, 2003 and September 30, 2002 are derived from our unaudited consolidated financial statements. The unaudited consolidated financial statements include all adjustments, consisting of normal recurring accruals, which we consider necessary for a fair presentation of our financial position and the results of operations for these periods. Operating results for the nine months ended September 30, 2003 and the year ended December 31, 2002 are not necessarily indicative of the results that may be expected for the entire year ending December 31, 2003 or for any other future period.
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, ----------------------- ------------------------------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 ---------- --------- ------------ --------- ---------- --------- ---------- (UNAUDITED) (DOLLARS IN THOUSANDS) INCOME STATEMENT DATA: Revenues: Products.............. $144,140 $131,049 $179,946 $149,868 $139,904 $96,706 $45,644 Mobile Security....... 108,875 90,717 125,171 47,232 -- -- -- ---------- --------- ------------ --------- ---------- --------- ---------- Total Revenues........ 253,015 221,766 305,117 197,100 139,904 96,706 45,644 Costs and Expenses: Cost of sales......... 176,396 152,481 210,745 126,330 85,457 56,304 28,064 Operating expenses.... 44,505 37,046 49,836 38,659 30,286 21,933 10,760 Amortization (1)...... 201 213 245 2,142 1,704 1,329 494 Integration and other non-recurring charges (3)......... 4,565 4,476 5,926 3,296 2,588 2,014 -- ---------- --------- ------------ --------- ---------- --------- ---------- Operating Income: 27,348 27,550 38,365 26,673 19,869 15,126 6,326 Interest expense 2,291 669 923 3,864 1,849 137 (274) Other expense (income), net................... 181 (77) 51 (82) (67) (811) (13) ---------- --------- ------------ --------- ---------- --------- ---------- Income from continuing operations before provision for income taxes................. 24,876 26,958 37,391 22,891 18,087 15,800 6,613 Provision for income taxes 10,044 13,603 16,054 8,207 7,240 6,472 2,674 ---------- --------- ------------ --------- ---------- --------- ---------- Income from continuing operations............ 14,832 13,355 21,337 14,684 10,847 9,328 3,939 ---------- --------- ------------ --------- ---------- --------- ---------- Income (loss) from discontinued operations before provision (benefit) for income taxes (2).. 3,593 (17,606) (41,468) (7,066) 8,303 5,399 7,060 Provision (benefit) for income taxes.......... 2,610 421 (2,442) (2,510) 2,102 1,531 2,403 ---------- --------- ------------ --------- ---------- --------- ---------- Income (loss) from discontinued operations (2)........ 983 (18,027) (39,026) (4,556) 6,201 3,868 4,657 ---------- --------- ------------ --------- ---------- --------- ---------- Net income (loss)........ $15,815 $ (4,672) $(17,689) $10,128 $17,048 $13,196 $8,596 ========== ========= ============ ========= ========== ========= ========== Basic income from continuing operations per share............. $0.52 $0.44 $0.70 $0.61 $0.48 $0.44 $0.24 Diluted income from $0.52 $0.43 $0.69 $0.59 $0.46 $0.43 $0.23 Basic Earnings per share. $0.56 $(0.15) $(0.58) $0.42 $0.75 $0.63 $0.53 Diluted Earnings per share $0.56 $(0.15) $(0.57) $0.41 $0.73 $0.61 $0.50
33
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, ----------------------- ------------------------------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 ---------- --------- ------------ --------- ---------- --------- ---------- (UNAUDITED) (DOLLARS IN THOUSANDS) BALANCE SHEET DATA (AT END OF PERIOD): Cash and cash equivalents $159,817 $21,403 $16,551 $53,719 $7,257 $13,246 $6,789 Working capital....... $254,209 $114,756 $100,591 $142,723 $67,937 $53,993 $24,366 Total assets.......... $541,393 $381,627 $367,753 $388,057 $225,957 $178,922 $94,353 Long-term obligations. $160,046 $10,990 $5,240 $4,640 $38,288 $2,453 $344 Stockholders' equity.. $291,140 $298,592 $288,077 $326,019 $166,771 $157,883 $75,102
- ------------- (1) Effective January 1, 2002, we adopted Statement of Financial Accounting Standard No. 142, "Goodwill and Other Intangible Assets" (SFAS 142). Amortization of goodwill, including goodwill recorded in past business combinations, ceased upon adoption of this statement. In addition, this statement requires that goodwill be tested for impairment at least annually at the reporting unit level. (2) As described in Note 2 of our fiscal 2002 audited financial statements, we recorded an impairment charge of $30.3 million for the Services Division in fiscal 2002. This impairment charge consisted of approximately $6.1 million in estimated disposal costs and a $24.2 million non-cash goodwill reduction. In fiscal 2001, we recorded a pre-tax restructuring charge of $10.3 million for the Services Division as a result of an approved restructuring plan to close its U.S. investigations businesses, realign the Division's organization, eliminate excess facilities and reduce overhead in our businesses worldwide. Operating results for 1998 through the first nine months of fiscal 2003 ended September 30, 2003 reflect the reclassification of the Services Division as discontinued operations. USDS, Inc., a subsidiary providing certain training services, formerly reported as a part of the Services Division, is not included in the amounts classified as assets held for sale. The assets and liabilities as well as the operating results of USDS, Inc. have been reclassified to the Armor Holdings Products Division where management oversight currently resides. (3) Includes one-time non-recurring charges and certain non-capitalized expenses relating to the acquisition and integration of acquired businesses. Acquisition and integration expenses include but are not limited to severance, integration of sales, marketing, distribution and manufacturing operations, as well as relocation and lease termination expenses, as well as one-time non-recurring charges and direct expenses associated with acquisition and due diligence efforts for acquisitions not completed. 34 SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF SIMULA, INC. The selected consolidated financial data presented below has been derived from Simula's historical audited consolidated financial statements for each of the five years ended December 31, 2002, as adjusted by management on an unaudited basis to reflect the presentation required for discontinued operations as a result of Simula's decision to sell its automotive safety business. The selected consolidated financial data as of and for each of the nine months ended September 30, 2003 and September 30, 2002 are derived from Simula's unaudited consolidated financial statements. The unaudited consolidated financial statements include all adjustments, consisting of normal recurring accruals, which Simula considers necessary for a fair presentation of its financial position and the results of operations for these periods. Operating results for the nine months ended September 30, 2003 and the year ended December 31, 2002 are not necessarily indicative of the results that may be expected for the entire year ending December 31, 2003 or for any other future period.
NINE MONTHS ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, ----------------- -------------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 ---- ---- ---- ---- ---- ---- ---- (UNAUDITED) (DOLLARS IN THOUSANDS) INCOME STATEMENT DATA: Total revenues........................... $50,615 $60,291 $75,556 $69,937 $60,318 $98,875 $72,652 Costs and expenses: Cost of sales....................... 32,228 39,496 48,168 46,550 43,801 84,483 70,339 Administrative expenses............. 10,892 10,120 14,791 13,956 17,286 21,677 17,306 Research & development.............. 1,722 1,311 1,864 1,549 1,865 -- -- Restructuring & other costs......... 599 762 322 408 2,156 18,403 -- Operating income (loss).................. 5,174 8,602 10,411 7,474 (4,790) (25,688) (14,993) Interest expense, net............... 8,277 7,738 10,411 10,231 9,803 7,079 4,861 Gain (loss) on early retirement of debt -- -- -- (3,815)(1) 1,524(1) (232)(1) -- Other expense (income), net......... 1,000 -- 81 -- -- -- -- Income (loss) from continuing operations before income taxes................. (4,103) 864 (81) (6,572) (13,069) (32,999) (19,854) Income tax (expense) benefit............. (17) 402 (37,960) 2,091 3,547 11,619 7,092 Income (loss) before discontinued operations and extraordinary expenses.......... (4,120) 462 (38,041) (4,481) (9,522) (21,380) (12,762) Income (loss) from discontinued operations (752) (320) 4,006 3,448 4,602 (1,466) (14,947) Net income (loss)........................ (4,872) 142 (34,035) (1,033) (4,920) (22,846) (27,709) Dividends on preferred stock............. -- -- -- -- 1,083 280 -- Net income (loss) available for common shareholders....................... $(4,872) $142 $(34,035) $(1,033) $(6,003) $(23,126) $(27,709) Basic income (loss) from continuing operations per share............... $ (0.32) $0.04 $ (2.94) $(0.36) $(0.93) $(2.12) $(1.29) Diluted income (loss) from continuing operations per share............... $ (0.32) $0.04 $ (2.94) $(0.36) $(0.93) $(2.12) $(1.29) Basic income (loss) per share............ $ (0.37) $0.01 $ (2.64) $(0.09) $(0.52) $(2.26) $(2.80) Diluted income (loss) per share.......... $ (0.37) $0.01 $ (2.64) $(0.08) $(0.52) $(2.26) $(2.80) BALANCE SHEET DATA (AT END OF PERIOD): Cash and cash equivalents................ $12 $462 $212 $362 $746 $5,223 $933 Working capital.......................... $(48,879) $1,730 $(24,631) $4,946 $(11,385) $5,012 $13,047 Total assets............................. $31,576 $90,785 $54,879 $92,653 $85,899 $107,340 $119,589 Long-term obligations.................... $1,764 $59,736 $33,609 $62,540 $39,526 $53,820 $47,244 Stockholders' (deficit) equity........... $(41,930) $(2,698) $(38,428) $(2,640) $(661) $3,375 $18,570
(1) In accordance with Financial Accounting Standards No. 145, the gains or losses on extinguishment of debt that had been recorded as an extraordinary item within the historical financial statements totaling ($2,183), $1,109 and ($151) for the years ended December 31, 2001, 2000 and 1999, respectively, have been tax effected and reclassified into continuing operations. 35 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS The unaudited pro forma condensed consolidated financial statements for the periods indicated below show the effect of the acquisition of Simula. The unaudited pro forma condensed consolidated balance sheet presents the financial position of Armor Holdings at September 30, 2003 giving effect to the acquisition of Simula as if it had occurred on such date. The unaudited pro forma condensed consolidated statements of continuing operations for the nine months ended September 30, 2003 and for the year ended December 31, 2002 give effect to the acquisition of Simula as if it had occurred on January 1, 2002. The unaudited pro forma balance sheet as of September 30, 2003 has been prepared by combining the historical condensed consolidated balance sheet of Armor Holdings with the historical condensed consolidated balance sheet of Simula as of September 30, 2003. The unaudited pro forma condensed consolidated statements of continuing operations for the year ended December 31, 2002 have been prepared by combining Armor Holdings' historical condensed consolidated statement of continuing operations for the year ended December 31, 2002 with the historical condensed consolidated statement of continuing operations of Simula for the year ended December 31, 2002. The interim unaudited pro forma condensed consolidated statements of continuing operations for the nine months ended September 30, 2003 have been prepared by combining Armor Holdings' historical condensed consolidated statement of continuing operations for the nine months ended September 30, 2003 with Simula's historical condensed consolidated statement of continuing operations for the nine months ended September 30, 2003. Appropriate pro forma adjustments have been applied to the historical accounts. The unaudited pro forma condensed consolidated financial information is presented for informational purposes only and it is not necessarily indicative of the financial position and results of operations that would have been achieved had the acquisition been completed as of the dates indicated and is not necessarily indicative of our future financial position or results of operations. The acquisition of Simula was structured as a merger, pursuant to which a wholly-owned subsidiary of Armor Holdings was merged with and into Simula, with Simula surviving the merger and becoming a wholly-owned subsidiary of Armor Holdings. The acquisition is accounted for under the purchase method of accounting with the assets acquired and liabilities assumed recorded at their estimated fair values. Goodwill is generated to the extent that the merger consideration, including transaction and closing costs, exceeds the fair value of net assets acquired. We are in the process of determining the purchase price allocation, which will allocate the excess of purchase price, including transaction costs, over the fair value of the tangible and identifiable intangible assets to be acquired to goodwill. We have not finished this purchase price allocation. As a result, the final allocation of the excess purchase price over the fair value of the assets to be acquired could differ from what is presented herein. The unaudited pro forma condensed consolidated financial statements should be read in conjunction with the historical consolidated financial statements of Armor Holdings and Simula, respectively, including related notes thereto, which are included or referenced elsewhere in this prospectus. On December 9, 2003, we completed our acquisition of Simula for $110.5 million in cash, subject to adjustment, including adjustments for certain transaction fees and costs. A portion of the $110.5 million was used to retire a majority of Simula's outstanding indebtedness. Approximately $31 million principal amount of 8% debentures will remain outstanding for approximately 30 days at which time we will repay these debentures, plus accrued interest, in their entirety. As of the date of this prospectus, Simula's outstanding 8% debentures have been paid in full. After payment of 100% of the outstanding indebtedness and transaction expenses, the merger consideration paid to 36 Simula's shareholders at closing pursuant to the merger agreement was approximately $43.5 million. 37 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF CONTINUING OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2002 (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
100% CASH PAID TO SIMULA SHAREHOLDERS ----------------------------------- HISTORICAL HISTORICAL PRO FORMA ARMOR SIMULA(1) ADJUSTMENTS PRO FORMA ------------ ----------- -------------- -------------- Revenues Products $179,946 $ -- $ -- $ 179,946 Mobile Security 125,171 -- -- 125,171 Simula -- 75,556 (1,152)(2) 74,404 ------------ ----------- -------------- ------------- Total revenues 305,117 75,556 (1,152) 379,521 Costs and expenses Cost of sales 210,745 48,168 2,572(2) 261,485 Operating expenses 50,081 16,977 1,632(3)(4)(5) 68,690 Integration and other non-recurring charges 5,926 -- -- 5,926 ------------ ----------- -------------- ------------- Operating income 38,365 10,411 (5,356) 43,420 Interest expense, net 923 10,411 (3,240)(6) 8,094 Other expense, net 51 81 -- 132 ------------ ----------- -------------- ------------- Income (loss) from continuing operations before provision for income taxes 37,391 (81) (2,116) 35,194 Provision for income taxes 16,054 37,960 (38,754)(7) 15,260 ------------ ----------- -------------- ------------- Income (loss) from continuing operations $21,337 $ (38,041) $ 36,638 $19,934 ============ =========== ============== ============= Earnings per common share for continuing operations: Basic $0.70 (8) $0.66 Diluted $0.69 (8) $0.64 Weighted average common shares outstanding: Basic 30,341 30,341 Diluted 30,957 30,957
38 NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF CONTINUING OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2002 (1) Simula's condensed consolidated statement of continuing operations as adjusted for the sale of its automotive safety business is presented for the year ended December 31, 2002. (2) Reflects a change of Simula's revenue recognition policy to conform to accounting policy used by Armor Holdings on long-term contracts from percentage completion based on the cost incurred basis to Armor Holdings' policy of percentage completion based on the units completed basis. For the year ended December 31, 2002, this change in revenue recognition would have resulted in a decrease in revenues of approximately $1.2 million and an increase in cost of sales of approximately $2.6 million including reduction in margin for opening in-process inventory. (3) Reflects a reduction to depreciation expense of $168,000 due to an increase in the weighted average estimated useful lives of property and equipment to six years and leasehold improvements to 12 years, which exceeds the remaining useful life on a historical basis. (4) Reflects an increase to amortization expense of $3.1 million due to an increase from purchase accounting in the fair value of identifiable intangible assets over their estimated useful lives. See Note 5 to the Pro Forma Condensed Consolidated Balance Sheet. (5) Reflects a reduction for transactions costs of approximately $1.3 million related to the costs to sell Simula. (6) Reflects interest expense of $7.2 million related to the acquisition debt used to fund the acquisition of Simula, net of the elimination of Simula's historical interest expense of $10.4 million. If interest rates were to increase or decrease by 1/8%, pro forma income from continuing operations would be $19.7 million and $20.1 million, respectively. The acquisition debt was issued by Armor Holdings in August of 2003 and matures in August of 2013. The acquisition debt carries a current variable interest rate of six-month LIBOR, set in arrears, plus a spread ranging from 2.735% to 2.75% as a result of interest rate hedge transactions. Pro forma interest expense for the acquisition debt was based on historical six-month LIBOR rates of 2.07%, or 4.82%, for the two-month period ended February 2002, 1.82%, or 4.57%, for the six-month period ended August 2002 and 1.37%, or 4.12%, for the four-month period ended December 31, 2002. (7) Reflects the adjustment to the provision for taxes by applying Armor Holdings' statutory tax rate of approximately 37.7% to the pro forma adjustments and eliminating the provision of $37.9 million that Simula recognized in 2002, which principally related to providing a valuation allowance for deferred tax assets resulting from net operating loss carry-forward deductions. (8) Basic earnings per common share for continuing operations is computed as follows: Income from continuing operations divided by basic weighted average common shares outstanding. Diluted earnings per common share for continuing operations is computed as follows: Income from continuing operations divided by diluted weighted average common shares outstanding. 39 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF CONTINUING OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2003 (AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
100% CASH PAID TO SIMULA SHAREHOLDERS ----------------------------------- HISTORICAL HISTORICAL PRO FORMA ARMOR SIMULA(1) ADJUSTMENTS PRO FORMA ------------- -------------- ----------------- -------------- Revenues Products $144,140 $ -- $ -- $ 144,140 Mobile Security 108,875 -- -- 108,875 Simula -- 50,615 8,165(2) 58,780 ------------- -------------- ----------------- -------------- Total revenues 253,015 50,615 8,165 311,795 Costs and expenses Cost of sales 176,396 32,228 5,661(2) 214,285 Operating expenses 44,706 12,614 860(3)(4)(5) 58,180 Integration and other non--recurring charges 4,565 599 -- 5,164 ------------- -------------- ----------------- -------------- Operating income 27,348 5,174 1,644 34,166 Interest expense, net 2,291 8,277 (4,691)(6) 5,877 Other expense, net 181 1,000 (1,000)(7) 181 ------------- -------------- ----------------- -------------- Income (loss) from continuing operations before provision for income taxes 24,876 (4,103) 7,335 28,108 Provision for income taxes 10,044 17 1,256(8) 11,317 ------------- -------------- ----------------- -------------- Income (loss) from continuing operations $14,832 $(4,120) $6,079 $16,791 ============= ============== ================= ============== Earnings per common share for continuing operations: Basic $0.52 (9) $0.60 Diluted $0.52 (9) $0.59 Weighted average common shares outstanding: Basic 28,106 28,106 Diluted 28,438 28,438
40 NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF CONTINUING OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2003 (1) Simula's condensed consolidated statement of continuing operations as adjusted for the sale of its automotive safety division is presented for the nine months ended September 30, 2003. (2) Reflects a change of Simula's revenue recognition policy to conform to the accounting policy used by Armor Holdings on long-term contracts from percentage completion based on the cost incurred basis to Armor Holding's policy of percentage completion based on the units completed basis. For the nine-months ended September 30, 2003, this change in revenue recognition would have resulted in an increase in revenues of approximately $8.2 million and an increase in cost of sales of approximately $5.7 million. (3) Reflects a reduction to depreciation expense of $137,000 due to an increase in the weighted average estimated useful lives of property and equipment to six years and leasehold improvements to 12 years, which exceeds the remaining useful life on a historical basis. (4) Reflects an increase to amortization expense of $2.4 million from purchase accounting due to an increase in the fair value of identifiable intangible assets over their estimated useful lives. See Note 5 to the Pro forma Condensed Consolidated Balance Sheet. (5) Reflects a reduction for transactions costs of approximately $1.4 million related to the sale of Simula's automotive safety division and costs to sell Simula. (6) Reflects interest expense of $4.9 million (net of $1.3 million previously recognized in Armor Holding's historical financial statements) related to the acquisition debt used to fund the acquisition of Simula, net of the elimination of Simula's allocated interest expense of $8.3 million. If interest rates were to increase or decrease by 1/8%, pro forma income from continuing operations would be $16.7 million and $16.9 million, respectively. The acquisition debt was issued by Armor Holdings in August of 2003 and matures in August of 2013. The acquisition debt carries a current variable interest rate of six-month LIBOR, set in arrears, plus a spread ranging from 2.735% to 2.75% as a result of interest rate hedge transactions. Pro forma interest expense for the acquisition debt was based on historical six-month LIBOR rates of 1.37%, or 4.12%, for the two-month period ended February 2003 and 1.19%, or 3.94%, for the seven-month period ended August 2003. (7) Reflects the elimination of the $1.0 million performance fee paid related to Simula's default on a certain non-monetary financial covenant under their Senior Secured Note. (8) Reflects the adjustment to the provision for taxes by applying Armor Holdings' statutory tax rate of approximately 37.7% to the pro forma adjustments and to Simula's historical losses. (9) Basic earnings per common share for continuing operations is computed as follows: Income from continuing operations divided by basic weighted average common shares outstanding. Diluted earnings per common share for continuing operations is computed as follows: Income from continuing operations divided by diluted weighted average common shares outstanding. 41 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 30, 2003 (AMOUNTS IN THOUSANDS)
100% CASH PAID TO SIMULA SHAREHOLDERS -------------------------------------- HISTORICAL HISTORICAL PRO FORMA ARMOR SIMULA(1) ADJUSTMENTS PRO FORMA ------------- -------------- ----------------- ----------------- ASSETS CURRENT ASSETS Cash and cash equivalents $154,766 $12 $(81,259)(2) $73,519 Accounts receivable (net of allowance for doubtful accounts) 59,215 8,836 -- 68,051 Costs and earned gross profit 1,088 10,324 (10,324)(3) 1,088 Inventories 60,068 2,491 8,583(3) 71,142 Prepaid expenses and other current assets 21,321 1,199 (1,036)(7) 21,484 Current assets of discontinued operations 47,958 -- -- 47,958 ------------- -------------- ----------------- ----------------- Total Current Assets 344,416 22,862 (84,036) 283,242 Property and Equipment (net of accumulated depreciation) 49,531 6,151 -- 55,682 Goodwill (net of accumulated 98,934 -- 66,323(4) 165,257 Patents, Licenses & Trademarks (net of accumulated amortization) 7,419 1,388 35,654(5) 44,461 Other Assets 21,048 1,175 (704)(7) 21,519 Long--Term Assets of Discontinued Operations 20,045 -- -- 20,045 ------------- -------------- ----------------- ----------------- TOTAL ASSETS $541,393 $31,576 $17,237 $590,206 ============= ============== ================= ================= LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES Current portion of long--term debt $765 $56,086 (24,898)(8) $31,953 Short--term debt 608 3,543 (3,543)(8) 608 Accounts payable 22,013 5,010 -- 27,023 Accrued expenses and other 38,965 7,102 3,892(3)(6) 49,959 Income taxes payable 3,914 -- -- 3,914 Current liabilities of discontinued operations 23,942 -- -- 23,942 ------------- -------------- ----------------- ----------------- Total current liabilities 90,207 71,741 (24,549) 137,399 LONG--TERM DEBT, LESS CURRENT PORTION 159,921 1,765 (144)(8) 161,542 LONG--TERM LIABILITIES OF DISCONTINUED OPERATIONS 125 -- -- 125 ------------- -------------- ----------------- ----------------- Total Liabilities 250,253 73,506 (24,693) 299,066 STOCKHOLDERS' EQUITY Common stock 342 132 (132)(9) 342 Additional paid--in capital 315,148 63,015 (63,015)(9) 315,148 Retained earnings 49,871 (102,285) 102,285(9) Accumulated other comprehensive loss (1,904) (2,792) 2,792(9) (1,904) Treasury stock (72,317) -- -- (72,317) ------------- -------------- ----------------- ----------------- Total stockholders' equity 291,140 (41,930) 41,930 291,140 ------------- -------------- ----------------- ----------------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $541,393 $31,576 $17,237 $ 590,206 ============= ============== ================= =================
42 NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 30, 2003 (1) Simula's condensed consolidated balance sheet as of September 30, 2003. (2) The estimated total purchase price is $112.8 million, including $2.3 million of estimated transaction costs for Armor Holdings. The cash proceeds from the issuance of $147.5 million in debt were used as follows: Repayment of Simula debt and purchase adjustments $ 31,747 Cash paid for Simula's transaction costs 4,262 Cash paid to Simula's common shareholders 42,950 Armor Holdings' transaction costs 2,300 --------------- Total pro-forma adjustment 81,259 8% Senior Subordinated Bonds to be redeemed in January 2004 32,214 Other non-cash purchase price adjustments (673) --------------- Total purchase price $ 112,800 ===============
(3) Reflects the adjustment of Simula's historical costs in excess of billings and inventory resulting from a change in Simula's revenue recognition policy to conform to the accounting policy used by Armor Holdings on long-term contracts from percentage completion based on the cost incurred basis to Armor Holdings' policy of percentage completion on the units completed basis. This change in revenue recognition results in a decrease in costs in excess of billings of $10.3 million, increase in inventory of $8.6 million (includes $630,000 related to the application of purchase accounting), increase of accrued expenses and other current liabilities of $3.0 million and a decrease in retained earnings of $4.7 million. (4) The excess of the amount paid to acquire 100% of Simula, Inc. common stock over the fair value of the net tangible and identifiable intangible assets (see note 5) of $66.3 million is reported as goodwill. (5) Reflects the estimated fair value of identifiable intangible assets acquired of $35.7 million. These assets consist of $25.2 million in customer relationships, $8.8 million in technology and $1.7 million in licensing agreements. We estimate these identifiable intangible asset categories have weighted average useful lives of 14, 8 and 10 years, respectively. (6) Reflects an increase of $915,000 in Simula's pension obligation to adjust the obligation to the difference between the fair market value of the plan assets and the projected benefit obligation. (7) Other long-term assets were reduced by the elimination of Simula's capitalized debt issuance costs of $704,000 related to the Revolving Line of Credit, 9.5% Senior Subordinated Notes, and other long-term debt. (8) Reflects Simula's repayment of $144,000 of outstanding debt under the Revolving Line of Credit, 9.5% Senior Subordinated Notes, as well as other long-term debt upon completion of the acquisition. (9) Reflects the elimination of the historical shareholders' equity of Simula. 43 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS COMPANY OVERVIEW We are a leading manufacturer and provider of security products, vehicle armor systems and security risk management services. Our products and services are used by military, law enforcement, security and corrections personnel throughout the world, as well as governmental agencies, multinational corporations and non-governmental organizations. Our company is organized and operated under three business segments: Armor Holdings Products; Armor Mobile Security; and ArmorGroup, which is accounted for as a discontinued operation. CONTINUING OPERATIONS Armor Holdings Products. Our Armor Holdings Products Division manufactures and sells a broad range of high quality, branded law enforcement equipment, such as concealable and tactical body armor, hard armor, duty gear, less-lethal munitions, anti-riot products, police batons, emergency lighting products, forensic products, firearms accessories and weapon maintenance products. Our products are marketed under brand names that are well-known and respected in the military and law enforcement communities such as American Body Armor(TM), Safariland(R), B-Square(TM), Break-Free(R), Defense Technology/Federal Laboratories(TM), MACE(R), PROTECH(TM), NIK(R)Public Safety, Monadnock(TM) Lifetime Products, Identicator(TM), Lightning Powder(R), SpeedFeed(TM), and 911EP(R). We sell our manufactured products primarily to law enforcement agencies through a worldwide network of over 350 distributors and sales agents, including approximately 200 in the United States. Our extensive distribution capabilities and commitment to customer service and training have enabled us to become a leading provider of security equipment to law enforcement agencies. Armor Mobile Security. Our Armor Mobile Security Division manufactures and installs ballistic and blast protected armoring systems for military vehicles, commercial vehicles, military aircraft, and missile components. Under the brand name O'Gara-Hess & Eisenhardt, we are the sole-source provider to the U.S. military for the supply of armoring and blast protection systems for the High Mobility Multi-purpose Wheeled Vehicle (the "HMMWV"). We are also under contract with the U.S. Army to provide systems technical support for the installed base of approximately 3,500 up-armored HMMWV's. We provide spare parts and maintenance services for the HMMWV's in use and we expect that our maintenance services may increase if the U.S. military substantially increases its HMMWV purchases or substantially increases its use of the current installed base. Additionally, the Armor Mobile Security Division has been subcontracted to develop a ballistic and blast protected armored and sealed truck cab for the High Mobility Artillery Rocket System ("HIMARS"), a U.S. Army and Marine Corps program recently transitioned from developmental to low rate initial production with deliveries scheduled in late 2003. The Division also markets armor sub-systems for other tactical wheeled vehicles. We armor a variety of commercial vehicles, including limousines, sedans, sport utility vehicles, commercial trucks and cash-in-transit vehicles, to protect against varying degrees of ballistic and blast threats. DISCONTINUED OPERATIONS Services Division. Our Services Division provides a broad range of sophisticated security risk management solutions to multinational corporations in diverse industries such as natural resources, financial services and consumer products, and to governmental and non-governmental agencies such as the U.S. Departments of State and Defense, the United Nations, United States Agency for International Development ("USAID") and Britain's Department for International Development. Our clients typically have personnel and other investments in unstable and often more risky areas of the world. Through our offices on five continents, we provide our multinational clients with a diversified portfolio of security solutions to assist them in mitigating risks to their operations around the world. Our highly trained, multilingual, and experienced security personnel work closely with our clients to create and implement solutions to complex security problems. These services include security planning, advice and management, security systems integration, intellectual property asset protection, due diligence investigations and training programs in counterintelligence, counter-surveillance, advanced driving techniques and ballistics. We believe that many of our security services, while often representing a small portion of our clients' overall cost of doing business, are critical to our clients' success. We believe that this creates a consistent demand for our premium services at attractive margins. CRITICAL ACCOUNTING POLICIES We believe our most critical accounting policies include revenue recognition, the use of estimates, income taxes and impairment. Revenue Recognition. We record products revenue at the time of shipment. Returns are minimal and do not materially affect the financial statements. We record revenue from our Mobile Security Division when the vehicle is shipped, except for larger commercial contracts typically longer than four months in length and the contract for the delivery of HMMWVs to the U.S. Government, which continues through 2005. Revenue from such larger contracts is recognized on the percentage of completion, units-of-work performed method. HMMWV units sold to the U.S. Government are considered complete when the onsite Department of Defense officer finishes the inspection of the HMMWV and approves it for delivery. Should such contracts be in a loss position, the entire estimated loss would be recognized for the balance of the contract at such time. We believe that our current contracts are profitable. We record service revenue as services are provided on a contract-by-contract basis. Revenues from service contracts are recognized over the term of the contract. 44 Comprehensive income and foreign currency translation. In accordance with Statement of Financial Accounting Standard No. 130, "Reporting Comprehensive Income" (SFAS 130), assets and liabilities denominated in a foreign currency are translated into U.S. dollars at the current rate of exchange existing at period-end and revenues and expenses are translated at the average monthly exchange rates. The cumulative translation adjustment, net of tax, which represents the effect of translating assets and liabilities of our foreign operations is recorded as a reduction of equity of $1,904,000 and $4,169,000 as of September 30, 2003 and December 31, 2002, respectively, and is classified as accumulated other comprehensive loss. The current year change in the accumulated amount, net of tax, is included as a component of comprehensive income. Stock options and Grants. Statement of Financial Accounting Standard No. 123, "Accounting for Stock-Based Compensation" (SFAS 123), as amended by SFAS 148, "Accounting for Stock-Based Compensation - Transition and Disclosure," establishes a fair value based method of accounting for stock-based employee compensation plans; however, it also allows an entity to continue to measure compensation cost for those plans using the intrinsic value based method of accounting prescribed by Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" (APB 25). Under the fair value based method, compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period. Under the intrinsic value based method, compensation costs is the excess, if any, of the quoted market price of the stock at the grant date or other measurement date over the amount an employee must pay to acquire the stock. We have elected to continue to account for our employee stock compensation plans under APB 25 with pro forma disclosures of net earnings and earnings per share, as if the fair value based method of accounting defined in SFAS 123 had been applied. If compensation cost for stock option grants had been determined based on the fair value on the grant dates for September 30, 2003 and 2002 consistent with the method prescribed by SFAS 123, our net earnings and earnings per share would have been adjusted to the pro forma amounts indicated below:
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------ ------------------ ------------------ ------------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) Net income (loss) as reported: $ 6,115 $ (14,707) $ 15,815 $ (4,672) Deduct: Total stock-based employee compensation expense determined under fair value based method for all awards, net of related tax effects (671) (1,699) (2,985) (3,434) ---------------- -------------------- --------------------- -------------------- Pro-forma net income (loss) $ 5,444 $ (16,406) $ 12,830 $ (8,106) ================ ==================== ===================== ==================== Earnings (loss) per share: Basic - as reported $ 0.22 $ (0.50) $ 0.56 $ (0.15) ================ ==================== ===================== ==================== Basic - pro-forma $ 0.20 $ (0.55) $ 0.46 $ (0.26) ================ ==================== ===================== ==================== Diluted - as reported $ 0.22 $ (0.49) $ 0.56 $ (0.15) ================ ==================== ===================== ==================== Diluted - pro-forma $ 0.19 $ (0.55) $ 0.45 $ (0.26) ================ ==================== ===================== ====================
Estimates. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts in the financial statements and accompanying notes. Significant estimates inherent in the preparation of the accompanying consolidated financial statements include periodic testing of the carrying value of long-lived assets for impairment, valuation allowances for receivables, inventories and deferred income tax assets, liabilities for potential litigation claims and settlements; and contract contingencies and obligations. Actual results could differ from those estimates. Income taxes. We account for income taxes pursuant to Statement of Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes". Under the asset and liability method specified thereunder, deferred taxes are determined based on the difference between the financial reporting and tax bases of assets and liabilities. Deferred tax liabilities are offset by deferred tax assets relating to net operating loss carryforwards and deductible temporary differences. Future benefits obtained either from utilization of net operating loss carryforwards or from the reduction in the income tax asset valuation allowance existing on September 20, 1993 have been and will be applied to reduce reorganization value in excess of amounts allocable to identifiable assets. At December 31, 2002 and 2001, our consolidated foreign subsidiaries have unremitted earnings of approximately $3.0 million and $1.3 million, respectively on which Armor Holdings has not recorded a provision for United States Federal income taxes since these earnings are considered to be permanently reinvested. Such foreign earnings have been taxed according to the regulations existing in the countries in which they were earned. Impairment. Long-lived assets including certain identifiable intangibles, and the goodwill related to those assets, are reviewed annually for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset in question may not be recoverable including, but not limited to, a deterioration of profits for a business segment that has long-lived assets, and when other changes occur which might impair recovery of long-lived assets. Management has reviewed Armor Holdings' long-lived assets and has taken an impairment charge of $31.2 million to reduce the carrying value of the Services Division to estimated realizable value. The method used to determine the existence of an impairment would be discounted operating cash flows estimated over the remaining useful lives of the related long-lived assets for continuing operations in accordance with SFAS No. 142, "Goodwill and Other Intangible 45 Assets." Impairment is measured as the difference between fair value and unamortized cost at the date impairment is determined. Discontinued Operations. In accordance with Statement of Financial Accounting Standards No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets" (SFAS 144), a component classified as held for sale is reported in discontinued operations when the following conditions are met: (a) the operations and cash flows of the component have been (or will be) eliminated from the ongoing operations of the entity as a result of the disposal transaction and (b) the entity will not have any significant continuing involvement in the operations of the component after the disposal transaction. In a period in which a component of an entity either has been disposed of or is classified as held for sale, the income statement for current and prior periods reports the results of operations of the component, including any estimated impairment gain or loss recognized in accordance with SFAS 144 paragraph 37, in discontinued operations. The results of discontinued operations, less applicable income taxes (benefit), is reported as a separate component of income before extraordinary items and the cumulative effect of accounting changes (if applicable). The assets and liabilities of a disposal group classified as held for sale is presented separately in the asset and liability sections, respectively, of the statement of financial position. Derivative Instruments and Hedging Activities. We account for derivative instruments and hedging activities in accordance with Statement of Financial Accounting Standard No. 133, "Accounting for Derivative Instruments and Hedge Activities" (SFAS 133) as amended. All derivative instruments are recorded on the balance sheet at fair value. Changes in the fair value of derivatives are recorded each period in current earnings or other comprehensive income, depending on whether a derivative is designated as part of a hedge transaction and, if it is, depending on the type of hedge transaction. For fair-value hedge transactions in which we hedge changes in an asset's, liability's, or firm commitment's fair value, changes in the fair value of the derivative instrument will generally be offset in the income statement by changes in the hedged item's fair value. We adopted SFAS 133 in the first quarter of 2001. However, we had no derivatives to be measured at the time of adoption. We do not hold or issue interest rate swap agreements or other derivative instruments for trading purposes. Changes in the fair value of the interest rate swap agreements offset changes in the fair value of the fixed rate debt due to changes in the market interest rate. Accordingly, the other assets on the Condensed Consolidated Balance Sheets as of September 30, 2003 increased by $8.0 million, which reflected an increase in the fair value of the interest rate swap agreements. The corresponding increase in the hedge liability was recorded in long-term debt. The agreements are deemed to be a perfectly effective fair value hedge and therefore qualify for the short-cut method of accounting under SFAS 133. As a result, no ineffectiveness is expected to be recognized in our earnings associated with the interest rate swap agreements. NEW ACCOUNTING PRONOUNCEMENTS: In June 2001, the Financial Accounting Standards Board (FASB) issued SFAS No. 141, "Business Combinations." SFAS No. 141 requires that the purchase method of accounting be used for all business combinations initiated after June 30, 2001. This statement specifies that certain acquired intangible assets in a business combination be recognized as assets separately from goodwill and that existing intangible assets and goodwill be evaluated for these new separation requirements. The adoption of this statement did not have a material impact on our consolidated financial statements. In June 2001, the FASB issued SFAS No. 142, "Goodwill and Other Intangible Assets." SFAS No. 142 changes the accounting for goodwill from an amortization method to an impairment-only approach. Amortization of goodwill, including goodwill recorded in past business combinations, ceased upon adoption of this statement. In addition, this statement requires that goodwill be tested for impairment at least annually at the reporting unit level. We implemented SFAS No. 142 on January 1, 2002. In connection with the adoption of SFAS 142, we completed in the second quarter the transitional goodwill impairment test that compared the fair value of each reporting unit to its carrying value and determined that no impairment existed. The goodwill resulting from acquisitions made by us subsequent to June 30, 2001 was immediately subject to the non-amortization provisions of SFAS 142. Had we been accounting for goodwill under SFAS 142 for all periods presented, our net income and earnings per share would have been as follows:
DECEMBER 31,2002 DECEMBER 31, 2001 DECEMBER 31, 2000 ------------------ -------------------- -------------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Reported net (loss) income $(17,689) $10,128 $17,048 Add back goodwill amortization, net of tax - 3,044 2,943 ------------------ -------------------- -------------------- Actual/pro forma adjusted net (loss) income $(17,689) $13,172 $19,991 Basic earnings per share Reported basic (loss) income per share $ (0.58) $ 0.42 $ 0.75 Goodwill amortization, net of tax - 0.13 0.13 ------------------ -------------------- -------------------- Actual/pro forma basic (loss) income per share $ (0.58) $ 0.55 $ 0.88 ================= =================== =================== 46 Diluted earnings per share Reported diluted (loss) income per share $ (0.57) $ 0.41 $ 0.73 Goodwill amortization, net of tax - 0.12 0.13 ------------------ -------------------- -------------------- Actual/pro forma diluted (loss) income per share $ (0.57) $ 0.53 $ 0.86 ================= =================== ===================
In August 2001, the FASB issued Statement of Financial Accounting Standards No. 143, "Accounting for Asset Retirement Obligations" (SFAS 143). SFAS 143 establishes accounting standards for recognition and measurement of a liability for an asset retirement obligation and the associated asset retirement cost. SFAS 143 requires the recognition of the fair value of a liability for an asset retirement obligation in the period in which it is incurred if a reasonable estimate of fair value can be made. If a reasonable estimate of fair value cannot be made in the period the asset retirement obligation is incurred, the liability shall be recognized when a reasonable estimate of fair value can be made. The fair value of a liability for an asset retirement obligation is the amount at which that liability could be settled in a current transaction between willing parties, that is, other than in a forced or liquidation transaction. SFAS 143 is effective for financial statements issued for fiscal years beginning after June 15, 2002. The provisions of SFAS 143 became effective for us on January 1, 2003. The effects of adopting this standard will not have a material effect on us. In October 2001, the FASB issued Statement of Financial Accounting Standards No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets" (SFAS 144). SFAS 144 establishes a "primary-asset" approach to determine the cash flow estimation period for a group of assets and liabilities that represents the unit of accounting for a long-lived asset to be held and used. SFAS 144 requires that a long-lived asset to be (1) abandoned, (2) exchanged for a similar productive asset, or (3) distributed to owners in a spin-off be considered held and used until it is abandoned, exchanged, or distributed. SFAS 144 requires (1) that spin-offs and exchanges of similar productive assets be recorded at the lower of carrying value or fair value, and that such assets be classified as held and used until disposed of and (2) that any impairment loss resulting from a spin-off or exchange of similar productive assets be recognized upon asset disposition. SFAS 144 provides for total assets and total liabilities of discontinued business segments to be presented in separate captions in assets and liabilities and also provides that future losses, if any, of discontinued business segments shall be reported as incurred. We adopted SFAS 144 effective January 1, 2002. The reclassification of the Services Division to discontinued operations and subsequent reduction in its carrying value was in accordance with the provisions of SFAS 144. In April 2002, the FASB issued Statement of Financial Accounting Standards No. 145, "Rescission on FASB 4, 44 and 64, Amendment of FASB Statement No. 13 and Technical Corrections" (SFAS 145). Under SFAS 145, gains and losses related to the extinguishment of debt should no longer be segregated on the income statement from continuing operations. The provisions of SFAS 145 are effective for fiscal years beginning after May 15, 2002. In June 2002, the FASB issued Statement of Financial Accounting Standard 146, "Accounting for Costs Associated with Exit or Disposal Activities" (SFAS 146). SFAS 146 addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force Issue No. 94-3, "Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring)." SFAS 146 is effective for exit or disposal activities initiated on or after December 31, 2002. The effects of adopting this standard will not have a material effect on us. In December 2002, the FASB issued Statement of Financial Accounting Standard 148, "Accounting for Stock-Based Compensation - Transition and Disclosure" (SFAS 148). SFAS 148 provides alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. In addition, SFAS 148 amends the disclosure requirements of Statement of Financial Accounting Standard 123, "Accounting for Stock-Based Compensation" (SFAS 123), to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. The disclosures required by SFAS 148 are included in this document. In November 2002, the FASB issued FASB Interpretation No. 45 Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others, an Interpretation of FASB Statements No. 5, 57, and 107 and Rescission of FASB Interpretation No. 34 ("FIN 45"). FIN 45 elaborates on the disclosures to be made by a guarantor in its interim and annual financial statements about its obligations under certain guarantees that it has issued. It also clarifies that a guarantor is required to recognize, at the inception of a guarantee, a liability for the fair value of the obligation undertaken in issuing the guarantee. The initial recognition and initial measurement provisions of FIN 45 are applicable on a prospective basis to guarantees issued or modified after December 31, 2002, irrespective of the guarantor's fiscal year-end. We adopted the provisions of this Statement on January 1, 2003, which did not have a significant impact on our consolidated financial statements. In January 2003, the FASB issued FASB Interpretation No. 46, Consolidation of Variable-Interest Entities - an Interpretation of ARB No. 51 ("FIN 46"). FIN 46 addresses consolidation by business enterprises of variable interest entities, which have one or both of the following characteristics: (1) the equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support from other parties, which is provided through other interests that will absorb some or all of the expected losses of the entity and (2) the equity investors lack one or more of the following essential characteristics of a controlling financial interest: o The direct or indirect ability to make decisions about the entity's activities through voting rights or similar rights o The obligation to absorb the expected losses of the entity if they occur, which makes it possible for the entity to finance its activities 47 o The right to receive the expected residual returns of the entity if they occur, which is the compensation for the risk of absorbing the expected losses. This Interpretation applies immediately to variable interest entities created after January 31, 2003, and to variable interest entities in which an enterprise obtains an interest after that date. It applies in the first fiscal year or interim period beginning after June 15, 2003, to variable interest entities in which an enterprise holds a variable interest that it acquired before February 1, 2003. The adoption of FIN 46 did not have a significant impact on our consolidated financial statements. In April 2003, the FASB issued Statement of Financial Accounting Standard No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities" (SFAS 149). SFAS 149 amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts and for hedging activities under Statement of Financial Accounting Standard No. 133, "Accounting for Derivative Instruments and Hedging Activities" (SFAS 133). SFAS 149 is effective for contracts entered into or modified and hedging relationships designated after June 30, 2003, except for the provisions of SFAS 149 that relate to SFAS 133 Implementation Issues that have been effective for fiscal quarters that began prior to June 15, 2003, which should continue to be applied in accordance with their respective effective dates. Adoption of this standard had no effect on us. In May 2003, the FASB issued Statement of Financial Accounting Standard No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity" (SFAS 150). SFAS 150 establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability (or an asset in some circumstances). Many of those instruments were previously classified as equity. SFAS 150 is effective for financial instruments entered into or modified after May 310, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. Adoption of this standard had no effect on us. In September 2003, the FASB issued FASB Staff Position No. 146-1, Determining Whether a One-Time Termination Benefit Offered in Connection with an Exit or Disposal Activity Is, in Substance, an Enhancement to an Ongoing Benefit Arrangement. This Staff Position states that in order to be considered an enhancement to an ongoing benefit arrangement, the additional termination benefits must represent a revision to the ongoing arrangement that is not limited to a specified termination event or a specified future period. Otherwise the additional termination benefits should be considered one-time termination benefits and accounted for under SFAS 146. The guidance in this Staff Position is effective for exit or disposal activities initiated in interim or annual reporting periods beginning after September 15, 2003. The adoption of this Staff Position is not expected to have a material impact on our consolidated financial statements. In October 2003, the FASB issued Staff Position No. FIN 48-6, Effective Date of FASB Interpretation No. 46, Consolidation of Variable Interest Entities. This Staff Position defers the effective date for applying the provisions of FIN 46 for interests held by public entities in variable interest entities or potential variable interest entities created before February 1, 2003 and non-registered investment companies. This adoption of this Staff Position is not expected to have a material impact on our consolidated financial statements. Fiscal Quarter Ended September 30, 2003 The following is a discussion of the results of operations and analysis of financial condition for the three months and nine months ended September 30, 2003. The results of operations for purchase business combinations are included since their effective acquisition dates. The following discussion may be understood more fully by reference to the consolidated financial statements and notes to the consolidated financial statements included in this prospectus. 48 RESULTS OF OPERATIONS THREE MONTHS ENDED SEPTEMBER 30, 2003 COMPARED TO THREE MONTHS ENDED SEPTEMBER 30, 2002. Net income (loss). Net income (loss) increased $20.8 million to net income of $6.1 million for the three months ended September 30, 2003 compared to a net loss of ($14.7) million for the three months ended September 30, 2002. Net income for the three months ended September 30, 2003 includes income from continuing operations of $6.1 million and income from discontinued operations of $6,000, compared to income from continuing operations of $3.0 million and a loss from discontinued operations of ($17.7) million for the three months ended September 30, 2002. 49 CONTINUING OPERATIONS Products revenues. Products Division revenues increased $1.7 million, or 3.5%, to $50.8 million in the three months ended September 30, 2003, compared to $49.0 million in the three months ended September 30, 2002. For the three months ended September 30, 2003, Products Division revenue increased 2.1% internally, including year over year changes in acquired businesses, and 1.4% due to the acquisitions of Evi-Paq, Inc., B-Square, Inc. and 911 Emergency Products, Inc., all of which were completed during or subsequent to the third quarter of 2002. Mobile Security revenues. Mobile Security Division revenues increased $8.6 million, or 27.2%, to $40.1 million in the three months ended September 30, 2003, compared to $31.5 million in the three months ended September 30, 2002. Mobile Security Division revenues for the three months ended September 30, 2003, increased $6.3 million due to the acquisition of substantially all of the assets of Trasco-Bremen on September 24, 2002. Excluding the $6.3 million of 2003 revenue increase relating to Trasco-Bremen, Mobile Security Division revenues increased $2.3 million, or 7.3%, in the three months ended September 30, 2003, compared to the three months ended September 30, 2002. The majority of the $2.3 million revenue increase relates to increased sales of up-armored Humvees and armored cars to the US military and US government. Cost of sales. Cost of sales increased $6.0 million, or 10.7%, to $62.0 million for the three months ended September 30, 2003 compared to $55.9 million for the three months ended September 30, 2002. As a percentage of total revenues, cost of sales decreased to 68.2% of total revenues for the three months ended September 30, 2003 from 69.5% for the three months ended September 30, 2002. Gross margins in the Products Division were 36.1% for the three months ended September 30, 2003, compared to 36.7% for the three-months ended September 30, 2002. The small drop in Products Division gross margins resulted primarily from a negative change in product mix within our hard armor and less lethal businesses. Excluding USDS, Inc., our Products Division training subsidiary, the Products Division gross margins were 38.4%, compared to 39.3% reported in the same period last year. Gross margins in the Mobile Security Division were 26.4% in the three-months ended September 30, 2003, compared to 21.0% for the three-months ended September 30, 2002. The increase in the Mobile Security Division gross margin is primarily attributable to: 1) favorable manufacturing overhead cost absorption relating to increased manufacturing volumes in our Cincinnati manufacturing facility; and 2) operational efficiencies in our Cincinnati manufacturing facility as the plant continues to reduce its per vehicle labor and material costs. Operating expenses. Operating expenses increased $3.1 million, or 24.3%, to $16.0 million (17.6% of total revenues) for the three months ended September 30, 2003 compared to $12.9 million (16.0% of total revenues) for the three months ended September 30, 2002. Products Division operating expenses increased $0.2 million, or 2.1%, to $8.2 million (16.1% of Products Division revenues) for the three months ended September 30, 2003 compared to $8.0 million (16.3% of Products Division revenues) for the three months ended September 30, 2002. This increase is due primarily to the incremental operating expenses associated with acquired businesses completed during or subsequent to the third quarter of 2002. Mobile Security Division operating expenses increased $925,000, or 28.8%, to $4.1 million (10.3% of Mobile Security Division revenues) for the three months ended September 30, 2003, 50 compared to $3.2 million (10.2% of Mobile Security Division revenues) for the three months ended September 30, 2002. Excluding the increase in 2003 operating expenses resulting from the acquisition of substantially all of the assets of Trasco-Bremen on September 24, 2002, the operating expenses for the three months ended September 30, 2003, increased $0.3 million to $3.5 million (10.5% of Mobile Security Division revenues) versus $3.2 million (10.2% of Mobile Security Division revenues) in the same period in the prior year. Corporate operating expenses increased $2.0 million, or 125.2%, to $3.7 million (4.0% of total revenues) for the three months ended September 30, 2003 compared to $1.6 million (2.0% of total revenues) for the three months ended September 30, 2002. This increase is due primarily to increased insurance costs, increased internal audit costs necessary to comply with Sarbanes-Oxley requirements, increased legal provisions, and increased bonus provisions. Amortization. Amortization expense increased $10,000, or 16.1%, to $72,000 for the three months ended September 30, 2003 compared to $62,000 for the three months ended September 30, 2002. SFAS 142, which we adopted on January 1, 2002, eliminated amortization of intangible assets with indefinite lives and goodwill for all acquisitions completed after July 1, 2001, as well as for all fiscal years ending after January 1, 2002. Remaining amortization expense is related to patents and trademarks with finite lives. Integration and other non-recurring charges. Integration and other non-recurring charges for the three months ended September 30, 2003, totaled $368,000, compared to $1.4 million in the same period last year. The decrease in integration and other non-recurring items is primarily related to the elimination of expense associated with the 2001 acquisitions of O'Gara-Hess & Eisenhardt and Identicator. The integration and other non-recurring charges for the three months ended September 30, 2003 primarily related to the integration of Evi-Paq, B-Square, 911 Emergency Products, and Trasco-Bremen all of which were completed during or subsequent to the third quarter of 2002. Operating income. Operating income from continuing operations increased $2.2 million to $12.5 million for the three months ended September 30, 2003 compared to $10.3 million in the three months ended September 30, 2002 due to the factors discussed above. Interest expense, net. Interest expense, net increased $1.1 million, or 330.0%, to $1.5 million for the three months ended September 30, 2003 compared to $343,000 for the three months ended September 30, 2002. This increase was due primarily to interest expense associated with the $150 million aggregate principal amount of 8.25% senior subordinated notes due 2013. On September 2, 2003, we entered into interest rate swap agreements that effectively exchanged the 8.25% fixed rate for a variable rate of six-month LIBOR (1.18% at September 30, 2003), set in arrears, plus a spread of 2.735% to 2.75%. Other expense (income), net. Other expense (income), net, was $96,000 for the three months ended September 30, 2003, compared to other expense (income), net, of ($13,000) for the three months ended September 30, 2002. Income from continuing operations before provision for income taxes. Income from continuing operations before provision for income taxes increased by $934,000 to $10.9 million for the three months ended September 30, 2003 compared to $10.0 million for the three months ended September 30, 2002 due to the reasons discussed above. 51 Provision for income taxes. Provision for income taxes was $4.8 million for the three months ended September 30, 2003, compared to $7.0 million for the three months ended September 30, 2002. The effective tax rate was 44.2% for the three months ended September 30, 2003, compared to 70.4% for the three months ended September 30, 2002. Our income tax rate for the full year 2003 is now estimated at 40.4%. This is an increase from the 37.4% tax rate that was utilized in the three months ended March 31, 2003, and June 30, 2003. Accordingly, we had to record an additional tax expense in the three months ended September 30, 2003. The increase in estimated tax rate was due to, among other things, the revaluation of certain intellectual property utilized in our discontinued operations to comply with tax code provisions. The increased tax expense associated with the revaluation is recorded in continuing operations as required by generally accepted accounting principles and resulted in an incremental non-cash tax expense of $635,000, for which foreign tax credits are available to offset the tax otherwise payable. Income from continuing operations. Income from continuing operations increased $3.1 million to $6.1 million for the three months ended September 30, 2003 compared to $3.0 million for the three months ended September 30, 2002 due to the factors discussed above. DISCONTINUED OPERATIONS Services revenues. Services Division revenue increased $2.3 million, or 9.7%, to $26.0 million for the three months ended September 30, 2003 compared to $23.7 million for the three months ended September 30, 2002. Exclusive of ArmorGroup Integrated Systems, which we sold on April 17, 2003, revenue increased $6.2 million, or 31.5% to $26.0 million for the three months ended September 30, 2003 compared to $19.8 million for the three months ended September 30, 2002. This increase is due to strong performance primarily in the Middle East with strong growth coming from Iraq along with ongoing strong training revenues from the Athens Olympics build up. These are tempered by weak revenues in mine action business, investigations business and the Latin American business. Cost of sales. Cost of sales decreased $1.7 million, or 8.4%, to $18.1 million for the three months ended September 30, 2003 compared to $19.7 million for the three months ended September 30, 2002. This decrease is a result of the sale of the ArmorGroup Integrated Systems business. Exclusive of ArmorGroup Integrated Systems, cost of sales increased $3.5 million, or 24.0% to $18.1 million for the three months ended September 30, 2003 compared to $14.6 million for the three months ended September 30, 2002. As a percentage of total revenue, cost of sales decreased to 69.4% of total revenues for the three months ended September 30, 2003 from 83.1% for the three months ended September 30, 2002. This decease in cost of sales as a percentage of total revenue was primarily a result of the proportion of the revenue growth coming from expatriate intensive security contracts in Iraq and continued high margin training contracts. Operating expenses. Operating expenses decreased $3.1 million, or 39.1%, to $4.9 million (18.8% of Services revenues) for the three months ended September 30, 2003 compared to $8.0 million (33.8% of Services revenues) for the three months ended September 30, 2002. This decrease was partly due to the sale of the ArmorGroup Integrated Systems business. Exclusive of ArmorGroup Integrated Systems, operating expenses decreased $1.2 million, or 19.9% to $4.9 million for the three months ended September 30, 2003 compared to $6.1 million for the three months ended September 30, 2002. This decrease was due to reduced foreign currency expenses and a reduction in salary costs as a result of restructuring last year. 52 Charge for impairment of long-lived asset. The net charge for impairment of long-lived asset was $1.3 million for the three months ended September 30, 2003, compared to $11.9 million for the three months ended September 30, 2002. The $1.3 million net non-recurring charge was recorded to maintain the proper carrying value of our discontinued operations at $43.4 million as of September 30, 2003, which amount reflects management's continued best estimate of fair value. Integration and other non-recurring charges. Integration and other non-recurring charges decreased $732,000, or 87.6%, to $104,000 for the three months ended September 30, 2003 compared to $836,000 for the three months ended September 30, 2002. This decrease is primarily due to severance payments to certain personnel in the prior year. Operating income (loss). Operating income was $1.7 million for the three months ended September 30, 2003, compared to operating loss of ($16.7) million for the three months ended September 30, 2002 due to the factors discussed above. Operating loss from the ArmorGroup Integrated Systems business was ($15.0) million for the three months ended September 30, 2002 primarily due to the $11.9 million charge for impairment of long-lived assets. Excluding the ArmorGroup Integrated Systems business, the balance of the assets held for sale generated an operating income of $1.7 million for the three months ended September 30, 2003 compared to an operating loss of ($1.7) million for the three months ended September 30, 2002. Interest expense, net. Interest expense, net, decreased $16,000, or 47.1%, to $18,000 for the three months ended September 30, 2003 compared to $34,000 for the three months ended September 30, 2002. This decrease was due to reduced utilization of the Services Division's line of credit. Other expense, net. Other expense, net, decreased $236,000, or 92.2%, to $20,000 for the three months ended September 30, 2003, compared to other expense, net, of $256,000 for the three months ended September 30, 2002. This decrease is due to reduced losses on disposal of fixed assets and other asset write-offs. Income (loss) from discontinued operations before provision for income taxes. Income from discontinued operations before provision for income taxes was $1.7 million for the three months ended September 30, 2003 and a loss of ($17.0) million for the three months ended September 30, 2002, due to the reasons discussed above. Provision for income taxes. Provision for income taxes was $1.7 million for the three months ended September 30, 2003 compared to a provision of $639,000 for the three months ended September 30, 2002. The effective tax rate for the three months ended September 30, 2003 was a provision of 99.6% compared to a provision of 3.8% for the three months ended September 30, 2002. The provision of 99.6% for the three months ended September 30, 2003 is due to unrecognized potential deferred tax assets associated with foreign subsidiaries, which recorded pretax losses in the three months of 2003. These potential tax benefits were not recognized due to the uncertainty regarding the specific subsidiary's ability to utilize the net operating loss carry-forwards in future periods. The provision for the three months ended September 30, 2003 also relates to the net impairment charge of $1.3 million, $1.1 million of which was non-deductible goodwill write-offs. Income (Loss) from discontinued operations. Income from discontinued operations was $6,000 for the three months ended September 30, 2003 compared to a loss from discontinued operations of ($17.7) million for the three months ended September 30, 2002 due to the factors discussed above. 53 NINE MONTHS ENDED SEPTEMBER 30, 2003 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30, 2002. Net income (loss). Net income (loss) increased $20.5 million to net income of $15.8 million for the nine months ended September 30, 2003 compared to a net loss of ($4.7) million for the nine months ended September 30, 2002. Net income for the nine months ended September 30, 2003 includes income from continuing operations of $14.8 million and income from discontinued operations of $983,000, compared to income from continuing operations of $13.4 million and a loss from discontinued operations of ($18.0) million for the nine months ended September 30, 2002. CONTINUING OPERATIONS Products revenues. Products Division revenues increased $13.1 million, or 10.0%, to $144.1 million in the nine months ended September 30, 2003, compared to $131.0 million in the nine months ended September 30, 2002. For the nine months ended September 30, 2003, Products Division revenue increased 6.2% internally, including year over year changes in acquired businesses, and 3.8% due to the acquisitions of Speedfeed, Inc., the Foldable Products Group, Evi-Paq, Inc., B-Square, Inc. and 911 Emergency Products, Inc., all of which were completed during 2002. Mobile Security revenues. Mobile Security Division revenues increased $18.2 million, or 20.0% to $108.9 million in the nine months ended September 30, 2003, compared to $90.7 million in the nine months ended September 30, 2002. Mobile Security Division revenues for the nine months ended September 30, 2003, increased $15.2 million due to the acquisition of substantially all of the assets of Trasco-Bremen on September 24, 2002. Excluding the $15.2 million of 2003 revenue increase relating to Trasco-Bremen, Mobile Security Division revenues increased $3.0 million, or 3.3%, in the nine months ended September 30, 2003, compared to the nine months ended September 30, 2002. Cost of sales. Cost of sales increased $23.9 million, or 15.7%, to $176.4 million for the nine months ended September 30, 2003 compared to $152.5 million for the nine months ended September 30, 2002. As a percentage of total revenues, cost of sales increased to 69.7% of total revenues for the nine months ended September 30, 2003 from 68.8% for the nine months ended September 30, 2002. Gross margins in the Products Division were 34.5% for the nine months ended September 30, 2003, compared to 37.5% for the nine months ended September 30, 2002. The decline in Products Division's gross margins resulted primarily from: (1) an increase in "low margin" training revenues; (2) an increase in low margin gas mask sales; (3) an increase in lower margin international body armor sales produced overseas at Armor Products International; (4) lower production volumes within our less lethal, automotive, and hard armor product lines, which resulted in reduced fixed cost absorption and certain labor inefficiencies; and (5) moving costs and labor inefficiencies at Protech associated with the relocation of its manufacturing facility. Excluding our Products training division subsidiary, the Products Division gross margins were 36.8%, compared to 39.9% reported in the same period last year. Gross margins in the Mobile Security Division were 24.7% in the nine months ended September 30, 2003, compared to 22.2% for the nine months ended September 30, 2002. The increase in the Mobile Security Division gross margin is primarily attributable to: 1) favorable manufacturing overhead cost absorption relating to increased manufacturing volumes at our 54 Cincinnati manufacturing facility; and 2) operational efficiencies in our Cincinnati manufacturing facility. Operating expenses. Operating expenses increased $7.5 million, or 20.1%, to $44.5 million (17.6% of total revenues) for the nine months ended September 30, 2003 compared to $37.0 million (16.7% of total revenues) for the nine months ended September 30, 2002. Products Division operating expenses increased $1.4 million, or 6.0%, to $24.2 million (16.8% of Products Division revenues) for the nine months ended September 30, 2003 compared to $22.8 million (17.4% of Products Division revenues) for the nine months ended September 30, 2002. This increase is due primarily to the incremental operating expenses associated with acquired businesses completed during or subsequent to the third quarter of 2002. Mobile Security Division operating expenses increased $2.4 million, or 25.7%, to $11.6 million (10.7% of Mobile Security Division revenues) for the nine months ended September 30, 2003, compared to $9.2 million (10.2% of Mobile Security Division revenues) for the nine months ended September 30, 2002. Excluding the increase in 2003 operating expenses resulting from the acquisition of substantially all of the assets of Trasco-Bremen on September 24, 2002, the operating expenses for the nine months ended September 30, 2003, increased less than $0.4 million, versus the same period in the prior year. The increase in operating expenses was primarily due to: (1) increased expenses associated with the start-up of operations in Caracas, Venezuela in late 2002; and (2) increased insurance costs. Corporate operating expenses increased $3.7 million, or 74.4%, to $8.7 million (3.4% of total revenues) for the nine months ended September 30, 2003 compared to $5.0 million (2.2% of total revenues) for the nine months ended September 30, 2002. This increase is due primarily to increased insurance costs, increased internal audit costs necessary to comply with Sarbanes-Oxley requirements, increased legal provisions, and increased bonus provisions. Amortization. Amortization expense decreased $12,000, or 5.6%, to $201,000 for the nine months ended September 30, 2003 compared to $213,000 for the nine months ended September 30, 2002. SFAS 142, which we adopted on January 1, 2002, eliminated amortization of intangible assets with indefinite lives and goodwill for all acquisitions completed after July 1, 2001, as well as for all fiscal years ending after January 1, 2002. Remaining amortization expense is related to patents and trademarks with finite lives. Integration and other non-recurring charges. Integration and other non-recurring charges for the nine months ended September 30, 2003, totaled $4.6 million, compared to $4.5 million for the nine months ended September 30, 2002. The increase in integration and other non-recurring items is primarily related to a $3.3 million (including a $2.1 million non-cash charge) severance charge related to the recent departure of our former Chief Executive Officer. Excluding this $3.3 million severance charge, integration and other non-recurring charges were $1.3 million for the nine months ended September 30, 2003, a decrease of $3.2 million from the nine months ended September 30, 2002. This decrease was primarily due to the elimination of expense associated with the 2001 acquisitions of O'Gara-Hess & Eisenhardt and Identicator. Operating income. Operating income from continuing operations decreased $202,000 to $27.3 million for the nine months ended September 30, 2003 compared to $27.6 million in the nine months ended September 30, 2002 due to the factors discussed above. 55 Interest expense, net. Interest expense, net increased $1.6 million, or 242.5% to $2.3 million for the nine months ended September 30, 2003 compared to $669,000 for the nine months ended September 30, 2002. This increase was due primarily to interest expense associated with the $150 million aggregate principal amount of 8 1/4% senior subordinated notes due 2013. On September 2, 2003, we entered into interest rate swap agreements that effectively exchanged the 8 1/4% fixed rate for a variable rate of six-month LIBOR, set in arrears, plus a spread of 2.735% to 2.75%. Other expense (income), net. Other expense, net, was $181,000 for the nine months ended September 30, 2003, compared to other income, net, of ($77,000) for the nine months ended September 30, 2002. Income from continuing operations before provision for income taxes. Income from continuing operations before provision for income taxes decreased by $2.1 million to $24.9 million for the nine months ended September 30, 2003 compared to $27.0 million for the nine months ended September 30, 2002 due to the reasons discussed above. Provision for income taxes. Provision for income taxes was $10.0 million for the nine months ended September 30, 2003, compared to $13.6 million for the nine months ended September 30, 2002. The effective tax rate was 40.4% for the nine months ended September 30, 2003, compared to 50.5% for the nine months ended September 30, 2002 based on our current expectations of annual income amounts and jurisdictions in which such amounts are expected to be taxable. The estimated 2003 income tax rate of 40.4% is higher than the 37.4% estimated income tax rate that was utilized in the first half of 2003 due to, among other things, a taxable gain that was realized in the third quarter when certain intellectual property utilized in our discontinued operations was revalued in order to comply with tax code provisions. The impact of the incremental tax is recorded in continuing operations as required by generally accepted accounting principles, and resulted in an incremental non-cash tax expense, for which foreign tax credits are available to offset the tax otherwise payable. Income from continuing operations. Income from continuing operations increased $1.5 million to $14.8 million for the nine months ended September 30, 2003 compared to $13.4 million for the nine months ended September 30, 2002 due to the factors discussed above. DISCONTINUED OPERATIONS Services revenues. Services Division revenue increased $1.5 million, or 2.0%, to $75.7 million for the nine months ended September 30, 2003 compared to $74.3 million for the nine months ended September 30, 2002. Exclusive of ArmorGroup Integrated Systems, which we sold on April 17, 2003, revenue increased $9.5 million, or 15.5% to $71.0 million for the nine months ended September 30, 2003 compared to $61.5 million for the nine months ended September 30, 2002. This increase is due to strong performance in the Middle East with equally strong performance by the ArmorGroup training division, which increased as a result of the Athens Olympics contract. These strong performances were tempered by weak revenues in mine action business, investigations business and the Latin American business due to a weak economy and the completion of a BP security contract in Colombia in the second quarter of 2002. Cost of sales. Cost of sales decreased $2.4 million, or 4.3%, to $53.4 million for the nine months ended September 30, 2003 compared to $55.8 million for the nine months ended September 30, 2002. This decrease is a result of the sale of the ArmorGroup Integrated Systems business. Exclusive of ArmorGroup Integrated Systems, cost of sales increased $5.2 million, or 12.1%, to 56 $48.3 million for the nine months ended September 30, 2003 compared to $43.1 million for the nine months ended September 30, 2002. As a percentage of total revenue, cost of sales decreased to 70.6% of total revenues for the nine months ended September 30, 2003 from 75.2% for the nine months ended September 30, 2002. This decrease in cost of sales as a percentage of total revenue was primarily due to (1) the sale of the Integrated Systems Division, which operates on lower margins than the rest of the Services Division; (2) high margins achieved by the Training Division; and (3) new contracts in the Middle East at higher than average margins. Operating expenses. Operating expenses decreased $6.3 million, or 27.8%, to $16.3 million (21.5% of total revenues) for the nine months ended September 30, 2003 compared to $22.6 million (30.4% of total revenues) for the nine months ended September 30, 2002. This decrease was primarily due to the sale of the ArmorGroup Integrated Systems business. Exclusive of ArmorGroup Integrated Systems, operating expenses decreased $3.1 million, or 16.6%, to $15.8 million for the nine months ended September 30, 2003 compared to $18.9 million for the nine months ended September 30, 2002. The nine months ended September 30, 2003 has benefited from no depreciation being charged as a result of the assets being held out for sale in accordance with SFAS 144 " Accounting for Impairment or Disposal of Long-Lived Assets," currency movement costs being less than prior year, and a reduction in salary costs as result of restructuring taken last year. Charge for impairment of long-lived asset. The net charge for impairment of long-lived asset was $1.3 million for the nine months ended September 30, 2003 compared to $11.9 million for the nine months ended September 30, 2002. The $1.3 million net non-recurring charge was recorded to maintain the proper carrying value of our discontinued operations at $43.4 million as of September 30, 2003, which amount reflects management's continued best estimate of fair value. Integration and other non-recurring charges. Integration and other non-recurring charges decreased $627,000, or 51.2%, to $598,000 for the nine months ended September 30, 2003 compared to $1.2 million for the nine months ended September 30, 2002. This decrease is primarily due to severance payments to certain personnel in the prior year. Operating income (loss). Operating income (loss) was $4.1 million for the nine months ended September 30, 2003, compared to operating loss of ($17.3) million for the nine months ended September 30, 2002 due to the factors discussed above. Operating loss from the ArmorGroup Integrated Systems business, which was sold on April 17, 2003, was ($987,000) for the period ended April 17, 2003, compared to an operating loss of ($15.6) million for the nine months ended September 30, 2002 due to the factors discussed above. Excluding the ArmorGroup Integrated Systems business, the balance of the assets held for sale generated an operating income of $5.1 million for the nine months ended September 30, 2003 compared to an operating loss of ($1.7) million for the nine months ended September 30, 2002. Interest expense, net. Interest expense, net decreased $56,000, or 44.1%, to $71,000 for the nine months ended September 30, 2003 compared to $127,000 for the nine months ended September 30, 2002. This decrease was due to reduced utilization of the Services Division's line of credit. 57 Other expense (income), net. Other expense (income), net, was $472,000 for the nine months ended September 30, 2003, compared to other expense (income), net of $200,000 for the nine months ended September 30, 2002. The net increase in expense was a result of a pre-tax loss of $366,000 on the sale of our ArmorGroup Integrated System business on April 17, 2003. Income (loss) from discontinued operations before provision for income taxes. Income (loss) from discontinued operations before provision for income taxes was $3.6 million for the nine months ended September 30, 2003 and ($17.6) million for the nine months ended September 30, 2002, due to the reasons discussed above. Provision for income taxes. Provision for income taxes was $2.6 million for the nine months ended September 30, 2003 compared to a provision of $421,000 for the nine months ended September 30, 2002. The effective tax rate for the nine months ended September 30, 2003 was a provision of 72.6% compared to a provision of 2.4% for the nine months ended September 30, 2002. The provision of 72.6% for the nine months ended September 30, 2003, is due to unrecognized potential deferred tax assets associated with foreign subsidiaries, which recorded pretax losses in the nine months of 2003. These potential tax benefits were not recognized due to the uncertainty regarding the specific subsidiary's ability to utilize the net operating loss carry-forwards in future periods. The provision for the nine months ended September 30, 2003 also relates to the net impairment charge of $1.3 million, $1.1 million of which was non-deductible goodwill write-offs. Income (loss) from discontinued operations. Income (loss) from discontinued operations was $983,000 for the nine months ended September 30, 2003 compared to a loss from discontinued operations of ($18.0) million for the nine months ended September 30, 2002 due to the factors discussed above. LIQUIDITY AND CAPITAL RESOURCES On August 12, 2003, we terminated our prior credit facility and enter into a new secured revolving credit facility (the "Credit Facility") with Bank of America N.A., Wachovia Bank, National Association and a syndicate of other financial institutions arranged by Bank of America Securities LLC. The Credit Facility consists of a five-year revolving credit facility and, among other things, provides for (i) total maximum borrowings of $60 million, (ii) a $25 million sub-limit for the issuances of standby and commercial letters of credit, (iii) a $5 million sub-limit for swing-line loans, and (iv) a $5 million sub-limit for multi-currency borrowings. All borrowings under the Credit Facility will bear interest at either (i) a rate equal to LIBOR, plus an applicable margin ranging from 1.125% to 1.625%, (ii) an alternate base rate which will be the higher of (a) the Bank of America prime rate and (b) the Federal Funds rate plus .50%, or (iii) with respect to foreign currency loans, a fronted offshore currency rate, plus an applicable margin ranging from 1.125% to 1.625%, depending on certain conditions. The Credit Facility is guaranteed by certain of our direct and indirect domestic subsidiaries and is collateralized by, among other things (i) a pledge of all of the issued and outstanding shares of stock or other equity interests of certain of our direct and indirect domestic subsidiaries, (ii) a pledge of 65% of the issued and outstanding voting shares of stock or other voting equity interests of certain of our direct and indirect foreign subsidiaries, (iii) a pledge of 100% of the issued and outstanding nonvoting shares of stock or other nonvoting equity interests of certain of our direct and indirect foreign subsidiaries, and (iv) a first priority perfected security interest on certain of our domestic assets and certain domestic assets of certain of our direct and indirect subsidiaries that will become guarantors of our obligations under the new credit facility, including, among other things, accounts receivable, inventory, machinery, equipment, 58 certain contract rights, intellectual property rights and general intangibles. As of September 30, 2003 we were in compliance with all of our negative and affirmative covenants. On August 12, 2003, we completed a private placement of $150 million aggregate principal amount of 8 1/4% Senior Subordinated Notes due 2013 (the "Notes"). The Notes are guaranteed by all of our domestic subsidiaries, except USDS, Inc., on a senior subordinated basis. The Notes have been sold to qualified institutional buyers in reliance on Rule 144A of the Securities Act of 1933 and to non-U.S. persons in reliance on Regulation S under the Securities Act. The Notes were rated B1/B+ by Moody's Investors' Service and Standard & Poor's Rating Services, respectively. We intend to use the net proceeds of the offering to fund future acquisitions, including our pending acquisition of Simula, Inc., repay a portion of our outstanding debt and for general corporate and working capital purposes, including the funding of capital expenditures. On September 2, 2003, we entered into interest rate swap agreements, designated as a fair value hedge as defined under Statement of Financial Accounting Standard No. 133, "Accounting for Derivative Instruments and Hedge Activities," (SFAS 133) with a notional amount totaling $150 million. The agreements were entered to exchange the fixed interest rate on the Notes for a variable interest rate equal to six-month LIBOR, set in arrears, plus a spread ranging from 2.735% to 2.75% fixed semi-annually on the fifteenth of February and August. The agreements are subject to other terms and conditions common to transactions of this type. In accordance with SFAS 133, changes in the fair value of the interest rate swap agreements offset changes in the fair value of the fixed rate debt due to changes in the market interest rate. Accordingly, the other assets on the Condensed Consolidated Balance Sheet as of September 30, 2003 increased by $8.0 million, which reflected an increase in the fair value of the interest rate swap agreements. The corresponding increase in the hedge liability was recorded in long-term debt. The agreements are deemed to be a perfectly effective fair value hedge and therefore qualify for the short-cut method of accounting under SFAS 133. As a result, no ineffectiveness is expected to be recognized in our earnings associated with the interest rate swap agreements. In March 2002, our Board of Directors approved a stock repurchase program authorizing the repurchase of up to a maximum 3.2 million shares of our common stock. In February 2003, the Board of Directors increased this stock repurchase program to authorize the repurchase, from time to time depending upon market conditions and other factors, of up to an additional 4.4 million shares. During the three-months ended September 30, 2003 no additional shares were repurchased. Through September 30, 2003, we repurchased 3.8 million shares of our common stock under the stock repurchase program at an average price of $12.49 per share, leaving us with the ability to repurchase up to 3.8 million additional shares of common stock. At September 30, 2003, we had 28,147,466 shares of common stock outstanding. We expect to continue our policy of repurchasing our common stock from time to time. In addition, our Credit Facility permits us to repurchase shares of our common stock with no limitation if our ratio of Consolidated Total Indebtedness to Consolidated EBITDA (as such terms are defined in the Credit Facility) for any rolling twelve-month period is less than 1.00 to 1. At ratios greater than 1.00 to 1 our credit agreement limits our ability to repurchase shares at $15.0 million. This basket resets to $0 each time the ratio is less than 1.0 to 1. Working capital for continuing operations was $230.2 million and $89.0 million as of September 30, 2003 and December 31, 2002, respectively. 59 Our fiscal 2003 capital expenditures for continuing operations are expected to be approximately $8.4 million, of which we have spent approximately $5.6 million through the nine months ended September 30, 2003. Our fiscal 2003 capital expenditures for discontinued operations are expected to be approximately $4.0 million, of which we have already spent approximately $2.8 million through the nine months ended September 30, 2003. Such expenditures include leasehold improvements, information technology and communications infrastructure equipment and software, and manufacturing machinery and equipment. We anticipate that the cash generated from operations, proceeds from the sale of the Notes and the sale of discontinued operations, cash on hand and available borrowings under the Credit Facility will enable us to meet liquidity, working capital and capital expenditure requirements during the next twelve months. We may, however, require additional financing to pursue our strategy of growth through acquisitions. If such financing is required, there are no assurances that it will be available, or if available, that it can be obtained on terms favorable to us or on a basis that is not dilutive to our stockholders. 60 Fiscal Year End December 31, 2002 The following is a discussion of the results of operations and analysis of financial condition for the twelve months ended December 31, 2002. The results of operations for purchase business combinations are included since their effective acquisition dates. The following discussion may be understood more fully by reference to the consolidated financial statements and notes to the consolidated financial statements included in this prospectus. RESULTS OF OPERATIONS Effective June 30, 2002, we decided to sell the ArmorGroup Services Division through an organized and formal auction managed by outside advisors. In accordance with Statement of Accounting Standards 144, Accounting for Impairment or Disposal of Long-Lived Assets, the assets and liabilities of the Services Division are classified as held for sale, with its operating results reported as discontinued operations in our statement of operations for all periods. Our US based training subsidiary, USDS, Inc. previously reported under the Services Division but not included for sale has been reclassified to the Products Division. The following table sets forth selected statement of operations data as a percentage of total revenues for the periods indicated: 61
FISCAL YEAR 2002 2001 2000 ---- ---- ---- Revenue from continuing operations Products 59.0% 76.0% 100.0% Mobile Security 41.0% 24.0% 0.0% Total revenues from continuing operations 100.0% 100.0% 100.0% Cost of sales 69.1% 64.1% 61.1% Operating expenses 16.3% 19.6% 21.6% Amortization 0.1% 1.1% 1.2% Integration and other non-recurring charges 1.9% 1.7% 1.8% Operating income 12.6% 13.5% 14.2% Interest expense, net 0.3% 2.0% 1.3% Other income, net 0.0% 0.0% 0.0% Income from continuing operations before provision for income taxes 12.3% 11.6% 12.9% Provision for income taxes 5.3% 4.2% 5.2% Income from continuing operations 7.0% 7.5% 7.8% (Loss) Income from discontinued operations before provision for income taxes (13.9)% (3.6)% 5.9% Provision (benefit) for income taxes (1.1)% (1.3)% 1.5% (Loss) Income from discontinued operations (12.8)% (2.3)% 4.4% Net (Loss) Income (5.8)% 5.1% 12.2%
FISCAL 2002 AS COMPARED TO FISCAL 2001 Net (loss) income. Net income decreased $27.8 million to a net loss of $17.7 million for the year ended December 31, 2002 ("fiscal 2002") compared to net income of $10.1 million for the year ended December 31, 2001 ("fiscal 2001"). Income from continuing operations and the loss from discontinued operations was $21.3 million and $39.0 million respectively for fiscal 2002, compared to income from continuing operations of $14.7 million and a loss from discontinued operations of $4.6 million for fiscal 2001. The increase in income from continuing operations relates primarily to the inclusion of the Mobile Security Division for a full year in 2002 versus four months in 2001 62 CONTINUING OPERATIONS Armor Holdings Products revenues. Our Armor Holdings Products Division revenues increased $30 million, or 20.1%, to $179.9 million in fiscal 2002, compared to $149.9 million in fiscal 2001. For fiscal 2002, Products Division revenue increased 14.4% internally, including year over year changes in acquired businesses, and 5.7% due to a series of small strategic "tuck-in" acquisitions including Identicator, Inc. ("Identicator"), Guardian Personal Security Products, Inc. ("Guardian"), Speedfeed, Inc. ("Speedfeed"), the Foldable Products Group ("Foldable"), Evi-Paq, Inc. ("Evi-Paq") B-Square, Inc. ("B-Square") and 911 Emergency Products ("911"). Products Division revenues include $16.8 million and $7.2 million from USDS, Inc., our US based training company, for the years ended fiscal 2002 and fiscal 2001, respectively. In our filings prior to June 30, 2002, we reported USDS, Inc. as a part of our Services Division. Mobile Security Division revenues. Our Armor Mobile Security Division revenues increased $77.9 million, or 165.0% to $125.2 million in fiscal 2002, compared to $47.2 million in fiscal 2001. Revenues for fiscal 2001, included only four months of operations after the acquisitions of O'Gara-Hess & Eisenhardt Armoring Company, The O'Gara Company, and O'Gara Security Associates, Inc. in August, 2001. Revenues in fiscal 2002 includes $3.3 million related to the acquisition of Trasco Bremen in September 2002. Including the eight months of operations prior to our ownership and excluding all revenue associated with assets that we either did not purchase or sell, Mobile Security Division revenue increased 17.7% internally from approximately $106.3 million during fiscal 2001. Cost of sales. Cost of sales increased $84.4 million, or 66.8%, to $210.7 million for fiscal 2002 compared to $126.3 million for fiscal 2001. This increase was due primarily to the acquisition of the Armor Mobile Security Division as well as overall revenue growth for fiscal 2002 compared to fiscal 2001. As a percentage of total revenues, cost of sales increased to 69.1% of total revenues for fiscal 2002 from 64.1% for fiscal 2001. This increase as a percentage of total revenues was partially due to the full year inclusion in 2002 of the Mobile Security Division, which operates at lower average gross margins than the Products Division and partially to reduced Products Division margins as discussed below. For fiscal 2002, gross margins in the Products Division were 36.4% compared to 39.3% reported in the same period last year, while the gross margins in the Mobile Security Division were 23.0% in fiscal 2002, compared to 25.1% for the four months of the December 31, 2001 fiscal year after the acquisition date. The Products Division consists of a portfolio of law enforcement products, each of which is manufactured and sold at different margins. In any given period, the Products Division weighted average gross margins will fluctuate based upon the relative volume of products sold during the period. Lower gross margins during fiscal 2002 in the Products Division were partially attributable to product mix, as well as to short term increases in manufacturing costs and a raw material supply issues in the division's body armor operations during the first half of 2002. During late 2001 and 2002, the Products Division combined its Jacksonville, Florida based body armor operation into its body armor manufacturing facility in Ontario, California. During 2002, the Division experienced difficulty in this combination resulting in capacity constraints and increased manufacturing costs. We believe that these capacity constraints have been alleviated and that certain of our body armor manufacturing costs will decrease during the first half of 2003. However, during this time, we also experienced interruptions in the supply of Zylon Shield, a certain ballistic fiber used in our leading concealable ballistic vest. This particular supply problem was related to the ballistic integrity of the fiber we received and not the actual availability of the material. Nevertheless, our inability to receive quality Zylon Shield during this period exacerbated our 63 capacity constraints. As of December 31, 2002, the Products Division is currently receiving adequate supplies of Zylon Shield and is currently working to decrease its body armor manufacturing costs. The Products Division gross margins also decreased because it realized higher proportional revenue increases from its training division, which operates at significantly lower overall gross margins than its manufacturing segment. The decrease in gross margins in the Mobile Security Division was primarily due to a less favorable mix of commercial vehicle sales compared to the same period the prior year, a heavier mix of "lower margin" cash-in-transit vehicles in 2002 compared to 2001, and a larger number of base unit sales included in revenue in the 2002 period. Operating expenses. Operating expenses increased $11.2 million, or 28.9%, to $49.8 million (16.3% of total revenues) for fiscal 2002 compared to $38.7 million (19.6% of total revenues) for fiscal 2001. This increase was primarily due to the operating expenses associated with the operations of the Mobile Security Division, acquired in August 2001, which were not included for the full year ended December 31, 2001. Operating expenses also increased in the Products Division primarily due to operating expenses associated with acquired companies and from internal growth of the business. Operating expenses as a percent of sales decreased because the Mobile Security Division operates with a lower level of operating expenses as a percentage of sales than does the Products Division. We expect to see an increase in corporate operating expense during 2003 because we will incur significant increases in insurance expenses, government affairs and lobbying efforts, internal audit, information technology and increased legal and accounting costs associated with legal compliance. Amortization. Amortization expense decreased $1.9 million, or 88.6%, to $0.2 million for fiscal 2002 compared to $2.1 million for fiscal 2001. This decrease results from the implementation of SFAS 142, which eliminated goodwill amortization for all acquisitions completed after July 1, 2001, as well as for all fiscal years ending after January 1, 2002. Remaining amortization expense is related to patents and trademarks with finite lives. Integration and other non-recurring charges. Integration and other non-recurring charges increased $2.6 million, or 79.8%, to $5.9 million for fiscal 2002 compared to $3.3 million in fiscal 2001. These charges relate primarily to the integration of the Mobile Security Division, as well as other acquisitions completed in 2001 and 2002. 2002 integration and other non-recurring charges also included certain expenses related to the integration of our body armor operations, as well as direct costs and expenses associated with potential acquisitions that did not close. Operating income. Operating income from continuing operations increased $11.7 million to $38.4 million for fiscal 2002 compared to $ 26.7 million in fiscal 2001 due to the factors discussed above. USDS, Inc. contributed operating income that was previously reported as a part of the Services Division of $1.7 million and $1.2 million for the years ended December 31, 2002 and 2001, respectively. Interest expense, net. Interest expense, net decreased $2.9 million, or 76.1% to $0.9 million for fiscal 2002 compared to $3.9 million for fiscal 2001. This decrease was due primarily to the repayment of long-term debt under our revolving credit facility with the net proceeds of the secondary common stock offering completed in December 2001. Other expense (income), net. Other expense (income), net, was $51,000 for fiscal 2002, compared to ($82,000) for fiscal 2001 due to a gain on sale of fixed assets during 2001. 64 Income from continuing operations before provision for income taxes. Income from continuing operations before provision for income taxes increased by $14.5 million to $37.4 million for fiscal 2002 compared to $22.9 million for fiscal 2001 due to the reasons discussed above. Provision for income taxes. Provision for income taxes was $16.1 million for fiscal 2002 compared to $8.2 million for fiscal 2001. The provision for income taxes for fiscal 2002 included charges of approximately $1.5 million related to the establishment of valuation allowances for certain foreign deferred tax assets of our discontinued operations. The effect of these charges was to increase our effective tax rate for fiscal 2002 to 42.9% compared to 35.9% for fiscal 2001. Without these charges, our effective tax rate for fiscal 2002 would have been 39%. The increase in what our effective tax rate would have been without the tax charges related to our discontinued operations is due primarily to the higher percentage of income earned in the United States and the impact of state income taxes on this income. Our expected effective tax rate is not necessarily indicative of what our actual effective rate will be due to the changing concentration and mix of income in the various countries in which we continue to operate. Income from continuing operations. Income from continuing operations increased $6.6 million to $21.3 million for fiscal 2002 compared to $14.7 million for fiscal 2001 due to the factors discussed above. DISCONTINUED OPERATIONS Many of the items listed below involve accounting estimates. The loss and amounts below will be revaluated in the future for any changes which might be appropriate. Our ArmorGroup Services Division revenues increased $3.3 million, or 3.5%, to $98.3 million for fiscal 2002 compared to $94.9 million for fiscal 2001. For fiscal 2002, revenue increased 6.7% due to the acquisition of International Training, Inc. ("ITI"), which was acquired as part of the acquisition of our Mobile Security Division and is included in the Services Division from the date of acquisition. The 3.4% reduction in revenue exclusive of the ITI acquisition was a result of lower revenues in the Integrated Systems business in the United States and the Security consulting business both in Latin America and Russia due to the completion of several large contracts. Cost of sales. Cost of sales increased $10.8 million, or 16.5%, to $75.8 million for fiscal 2002 compared to $65 million for fiscal 2001. This increase was due primarily to the acquisition of ITI. As a percentage of total revenue, cost of sales increased to 77.1% of total revenues for fiscal 2002 from 68.5% for fiscal 2001. This increase in cost of sales as a percentage of total revenue was primarily due to the weakness in our Integrated Systems business resulting in poor margins from increased inventory reserves, the loss of high margin oil industry security consulting work in Latin America and the scaling down of business in the Democratic Republic of Congo. Operating expenses. Operating expenses increased $6.1 million, or 24.9%, to $30.6 million (31.1% of total revenues) for fiscal 2002 compared to $24.5 million (25.8% of total revenues) for fiscal 2001. This increase was due primarily to increased accounts receivable reserves, other asset write-downs, and other charges in the Integrated Systems and Security consulting businesses, as well as additional operating expenses associated with ITI's operations, acquired in August 2001. Amortization. Amortization expense decreased $1.5 million, or 100%, to $0 for fiscal 2002 compared to $1.5 million for fiscal 2001. This decrease was a result of the implementation of SFAS 142, which eliminated goodwill amortization for acquisitions completed after July 1, 2001 and for fiscal years beginning on or after January 1, 2002. 65 Charge for impairment of long-lived assets. Charges for impairment of long-lived assets was $30.3 million for fiscal 2002 compared to $0 for fiscal 2001. The impairment charge is the result of the $24.2 million reduction in carrying value of the Services Division to the estimated realizable value as required by SFAS 144. Restructuring and related charges. In January 2001, our Board of Directors approved a restructuring plan to close the Services Division's U.S. investigative businesses, realign the Service Division's organization, eliminate excess facilities and reduce overhead in its business worldwide. In connection with this restructuring charge, the Services Division performed a review of its long-lived assets to identify potential impairments. Pursuant to this restructuring plan, we a) eliminated 26 employees, primarily from the Services Division investigative business; b) eliminated an additional 24 employees from its security consulting business; c) incurred lease and other exit costs as a result of the closure of the investigative businesses; and d) wrote-down the value of both tangible and intangible assets as a result of the impairment review. As a result of the restructuring plan, we recorded a pre-tax charge of $10.3 million. At December 31, 2002 we had a restructuring accrual of $270,000 compared to $354,000 at December 31, 2001 relating to lease termination and other exit costs. This liability has been classified in accrued expenses and other current liabilities on our discontinued operations balance sheet and will be funded through cash provided by operating activities and our credit facility. Integration and other non-recurring charges. Integration and other non-recurring charges increased $1.8 million, or 238.0%, to $2.6 million for fiscal 2002 compared to $776,000 for fiscal 2001. These charges reflect certain severance expenses, software write-off costs and other expenses associated with preparing the division for sale, as well as the expenses associated with integrating ITI into the Services Division. Operating loss. Operating losses were $41.9 million for fiscal 2002, compared to an operating loss of $7.1 million for fiscal 2001 due to the factors discussed above. Interest expense, net. Interest expense, net increased $203,000 or 142%, to $346,000 for fiscal 2002 compared to $143,000 for fiscal 2001. This increase was due to increased utilization of the Services Division's line of credit. Other (income) expense, net. Other expense, net, was $99,000 for fiscal 2002, compared to other income, net of $218,000 for fiscal 2001. The increase expense in fiscal 2002 was a result of losses on the disposal of fixed assets and other asset write-offs. Loss from discontinued operations before provision for income taxes (benefit). Loss from discontinued operations before provision for income taxes (benefit) was $41.5 million for fiscal 2002 and $7.1 million for fiscal 2001 due to the reasons discussed above. Provision for income taxes (benefit). Income tax benefit was $2.4 million for fiscal 2002 compared to a benefit of $2.5 million for fiscal 2001. The effective tax rate for fiscal 2002 was a benefit of 5.9% compared to a benefit of 35.5% for fiscal 2001. The decrease in percentage benefit is primarily due to the inclusion in taxable income of certain expenses not deductible for tax purposes, including a $31.2 million charge for the impairment of long-lived assets. 66 Loss from discontinued operations. Loss from discontinued operations was $39.0 million for fiscal 2002 compared to a loss from discontinued operations of $4.6 million for fiscal 2001 due to the factors discussed above. FISCAL 2001 AS COMPARED TO FISCAL 2000 Net (loss) income. Net income decreased $6.9 million to a net income of $10.1 million for fiscal 2001 compared to net income of $17.0 million for the year ended December 31, 2000 ("fiscal 2000"). Net income for fiscal 2001 includes income from continuing operations of $14.7 million and a loss from discontinued operations of $4.6 million, compared to income from continuing operations of $10.8 million and income from discontinued operations of $6.2 million for fiscal 2000. CONTINUING OPERATIONS Armor Holdings Products Division Revenues. Armor Holdings Products Division revenues increased $10 million, or 7.1% to $149.9 million in for fiscal 2001 ("fiscal 2001"), compared to $139.9 million for fiscal 2000. Revenue increased during the year due to the acquisitions completed in fiscal 2000 and additional fiscal 2001 acquisitions. All of these acquisitions were accounted for as purchases and accordingly the results of their operations are included only from the date of acquisition. Products Division revenues include $7.2 million and $4.6 million from USDS, Inc. for the years ended December 31, 2001 and December 31, 2000, respectively. In our filings prior to June 30, 2002, we reported USDS, Inc. as a part of the Service Division. Not including these acquisitions, the Armor Holdings Products Division revenue decreased during fiscal 2001, due in part to shipping interruptions and order cancellations that resulted from the September 11 terrorist attacks against the World Trade Center and the Pentagon and to a slowdown in purchasing during the first quarter of 2001. We attribute a portion of the first quarter slowdown with the Bulletproof Vest Partnership Act (the "BVP Money") that provides federal matching funds to law enforcement agencies purchasing bullet resistant vests. We believe that agencies delayed their purchasing decisions during the first quarter of 2001 until such time as the BVP Money was fully allocated. Mobile Security revenues. Mobile Security Division revenues were $47.2 million, in fiscal 2001, compared to $0 in fiscal 2000. The Mobile Security Division was created through the acquisition of O'Gara-Hess & Eisenhardt Armoring Company, The O'Gara Company, and O'Gara Security Associates, Inc., which was completed on August 22, 2001, and only included in our financial statements from the date of acquisition. Revenues for the year ended 2001 included only four months of operations, from the date of acquisition. Cost of sales. Cost of sales increased $40.9 million, or 47.8%, to $126.3 million for fiscal 2001 compared to $85.5 million for fiscal 2000. This increase was due primarily to the acquisition of the Mobile Security Division as well as overall revenue growth for the fiscal 2001 compared to fiscal 2000. As a percentage of total revenues, cost of sales increased to 64.1% of total revenues for fiscal 2001 from 61.1% for fiscal 2000. This increase as a percentage of total revenues was primarily due to the inclusion of the Mobile Security Division, which operates at lower average gross margins than the Products Division. For fiscal 2001, gross margins in the Products Division were 39.3% compared to 39.8% reported in fiscal 2000, while the gross margins in the Mobile Security Division were 25.1% for the four-month stub portion for fiscal 2001. The decrease in the Products Division gross margins is attributable to the impact of higher proportional revenue of USDS, Inc., which operates at margins, which are 67 significantly lower than the gross margins experienced within the other Products Division companies. Operating expenses. Operating expenses increased $8.4 million, or 27.6%, to $38.7 million, or 19.6% of total revenues for fiscal 2001 compared to $30.3 million, or 21.7% of total revenues for fiscal 2000. This increase was primarily due to the operating expenses associated with the operations of the Mobile Security Division, acquired in August 2001, which were not included at all for the year ended December 31, 2000. Operating expenses also increased due to acquisitions in the Products Division including Monadnock and Lightning Powder, as well as general internal growth of the business. Operating expenses as a percent of sales decreased because the Mobile Security Division operates with a lower level of operating expenses as a percentage of sales than does the Products Division. Amortization. Amortization expense increased $438,000, or 25.7%, to $2.1 million for fiscal 2001 compared to $1.7 million for fiscal 2000. Amortization expense increased during the year due to amortization of intangible assets acquired during fiscal 2000 through the acquisitions of Monadnock and Lightning Powder. In accordance with SFAS 142, we did not amortize goodwill from the O'Gara acquisition, which occurred subsequent to June 30, 2001. Integration and other non-recurring charges. Integration and other non-recurring charges increased $.7 million, or 27.4%, to $3.3 million for fiscal 2001 compared to $2.6 million in fiscal 2000. Fiscal 2001 integration expenses represent costs associated with the acquisitions and integration of the Mobile Security Division, Monadnock and Lightning Powder, as well as costs associated with our international tax minimization program. Fiscal 2000 integration expenses included costs associated with the acquisitions of Safariland, and Break-Free, as well as, costs associated with our international tax minimization program and other one time expenses incurred in the third quarter of 2000. Operating income. Operating income from continuing operations increased $6.8 million, or 34.2%, to $26.7 million for fiscal 2001 compared to $19.9 million in fiscal 2000 due to the factors discussed above. USDS, Inc. contributed operating income that was previously reported as a part of the Services Division of $1.2 million and $889,000 for fiscal 2001 and 2000, respectively. Interest expense, net. Interest expense, net increased $2.0 million, or 109% to $3.9 million for fiscal 2001 compared to $1.8 million for fiscal 2000. Interest expense, net increased during fiscal 2001 primarily due to interest on debt incurred to fund the acquisitions of Monadnock, Lightning Powder and the Mobile Security Division, which were each funded in part with cash from our revolving credit facility. Increased borrowings under the revolving credit facility were offset by lower interest rates on that debt. Interest expense, net includes interest on and amortization of the fees associated with our debt obligations, including our revolving credit facility, and the amortization of the discount on certain long-term liabilities acquired as part of the Safariland acquisition. Other (income) expense, net. Other income, net, was $82,000 for fiscal 2001, compared to $67,000 for fiscal 2000. Income from continuing operations before provision for income taxes. Income from continuing operations before provision for income taxes increased by $4.8 million to $22.9 million for fiscal 2001 compared to $18.1 million for fiscal 2000 due to the reasons discussed above. 68 Provision for income taxes. Provision for income taxes was $8.2 million for fiscal 2001 compared to $7.2 million for fiscal 2000. Income from continuing operations. Income from continuing operations increased $3.9 million to $14.7 million for fiscal 2001 compared to $10.8 million for fiscal 2000 due to the factors discussed above. DISCONTINUED OPERATIONS ArmorGroup Services Division revenues. Our ArmorGroup Services Division revenues increased $13.9 million, or 17.1%, to $94.9 million for fiscal 2001 compared to $81.1 million for fiscal 2000. For fiscal 2001, revenue increased due to the acquisition of International Training, Inc. ("ITI"), which was acquired as part of the acquisition of O'Gara and is included in the Services Division from the date of acquisition. Cost of sales. Cost of sales increased $13.0 million, or 24.9%, to $65.0 million for fiscal 2001 compared to $52 million for fiscal 2000. This increase was due primarily to the acquisition of ITI. As a percentage of total revenue, cost of sales increased to 68.5% of total revenues for fiscal 2001 from 64.2% for fiscal 2000. Increased cost of sales is directly related to revenue increases associated with the ITI acquisition and internal revenue growth in our ArmorGroup Services Division. Increasing cost of sales as a percentage of total revenue reflects a shift in revenue mix in the ArmorGroup Service Division from investigations to security services which has lower margins. During 2001, ArmorGroup abandoned its US Investigations strategy by closing several higher margin business units while replacing this revenue with growth in lower margin security consulting service revenue. Operating expenses. Operating expenses increased $4.4 million, or 22.1%, to $24.5 million (25.8% of total revenues) for fiscal 2001 compared to $20.1 million (24.7% of total revenues) for fiscal 2000. This increase was due to additional operating expenses associated with ITI's operations, acquired in August 2001 as well as internal revenue growth. Amortization. Amortization expense decreased $206,000, or 11.9%, to $1.5 million for fiscal 2001 compared to $1.7 million for fiscal 2000. The reduction in amortization expense resulted from goodwill write-offs contained in our restructuring charge in the first quarter of 2001. In accordance with SFAS 142, we did not amortize the goodwill from acquisitions in the Services Division, which occurred after June 30, 2001. Restructuring and related charges. In January 2001, our Board of Directors approved a restructuring plan to close its Services Division's U.S. investigative businesses, realign the division's organization, eliminate excess facilities and reduce overhead in its business worldwide. In connection with this restructuring charge, the Services Division performed a review of its long-lived assets to identify potential impairments. Pursuant to this restructuring plan, the Company a) eliminated 26 employees, primarily from its investigative business; b) eliminated an additional 24 employees from its security consulting business; c) incurred lease and other exit costs as a result of the closure of its investigative businesses; and d) wrote-down the value of both tangible and intangible assets as a result of the impairment review. Most of the significant actions contemplated by the restructuring plan have been completed during fiscal 2001. As a result of the restructuring plan, we recorded a pre-tax charge of $10.3 million. As of December 31, 2001, we had a remaining liability of $354,000 relating to lease termination and other exit costs. This liability has been classified in accrued expenses and other current liabilities on our 69 consolidated balance sheet and will be funded through cash provided by operating activities and our credit facility. Equity in earnings of investees. Equity in earnings of investee was $87,000 in fiscal 2000 and relates to our 20% investment in Jardine Securicor Gurkha Services Limited, a Hong Kong joint venture company ("JSGS"), which we sold during fiscal 2000. Integration and other non-recurring charges. Integration and other non-recurring charges increased $74,000, or 10.5% to $776,000 for fiscal 2001 compared to $702,000 for fiscal 2000. Fiscal 2001 integration expenses represent costs associated with the acquisitions and integration of ITI. Fiscal 2000 integration expenses included costs associated with the acquisitions of OVG/Traquair and Special Clearance Services and other one time expenses incurred in the third quarter of 2000. Operating (loss) income. Operating loss was $7.1 million for fiscal 2001, compared to operating income of $6.6 million for fiscal 2000 due to the factors discussed above. Interest expense (income), net. Interest expense (income), net increased $96,000, or 204.3%, to $143,000 for fiscal 2001 compared to $47,000 for fiscal 2000. This increase was due to increased utilization of the Services Division's overdraft line of credit. Other (income) expense, net. Other income, net decreased $1.5 million, or 87.4% to $218,000 in fiscal 2001, compared to $1.7 million in fiscal 2000 which includes a gain related to the sale of our investment in JSGS in fiscal 2000. (Loss) income from discontinued operations before provision for income taxes (benefit). Loss from discontinued operations before provision for income taxes (benefit) was $7.1 million for fiscal 2001 compared to income of $8.3 million for fiscal 2000 due to the reasons discussed above. (Benefit) provision for income taxes. (Benefit) provision for income taxes was ($2.5) million for fiscal 2001 compared to $2.1 million for fiscal 2000. The effective tax rate for fiscal 2001 was 35.5% compared to 25.3% for fiscal 2000. The decrease in benefit is primarily due to the inclusion in taxable income of certain expenses not deductible for tax purposes, including an $11.9 million charge for the impairment of long-lived assets. (Loss) income from discontinued operations. Loss from discontinued operations was $4.6 million for fiscal 2001 compared to income from discontinued operations of $6.2 million for fiscal 2000 due to the factors discussed above. 70 QUARTERLY RESULTS Set forth below are certain unaudited quarterly financial data for each of our last eight quarters and certain such data expressed as a percentage of our revenue for the respective quarters. The information has been derived from unaudited financial statements that, in the opinion of management, include all adjustments (consisting only of normal recurring adjustments) necessary to fairly present such quarterly information in accordance with generally accepted accounting principles. The operating results for any quarter are not necessarily indicative of the results to be expected for any future period. QUARTER ENDED
(IN THOUSANDS, EXCEPT PER SHARE DATA) Dec 31, Sept 30, Jun 30, Mar 31, Dec 31, Sept 30, Jun 30, Mar 31, 2002 2002 2002 2002 2001 2001 2001 2001 ------------ ----------- ------------ ------------ ----------- ------------ ------------ ---------- Revenues Products $ 48,897 $ 49,047 $ 43,057 $ 38,945 $ 42,285 $ 39,315 $ 38,100 $ 30,168 Mobile Security 34,454 31,510 28,548 30,659 37,883 9,349 - - ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Total Revenue 83,351 80,557 71,605 69,604 80,168 48,664 38,100 30,168 Operating income 10,815 10,337 8,168 9,045 10,590 5,328 7,127 3,628 Interest expense, net 254 343 284 42 1,334 1,102 775 653 Other expense (income), net 128 (13) - (64) (228) 146 - - ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Income from continuing operations before taxes 10,433 10,007 7,884 9,067 9,484 4,080 6,352 2,975 Provision for income taxes 2,451 7,043 3,060 3,500 2,925 1,607 2,503 1,172 ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Income from continuing operations 7,982 2,964 4,824 5,567 6,559 2,473 3,849 1,803 (Loss) income from discontinuing operations before taxes (23,862) (17,032) (817) 244 (1,042) 1,058 362 (7,443) (Benefit) provision for income taxes (2,863) 639 (68) (149) 114 (292) (87) (2,244) ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- (Loss) income from discontinuing operations (20,999) (17,671) (749) 393 (1,156) 1,350 449 (5,199) ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Net (loss) income $ (13,017) $(14,707) $ 4,075 $5,960 $5,403 $3,823 $4,298 $ (3,396) ============ =========== ========== ============ =========== ============ ============ ========== Net income/(loss) per common Income from continuing $ 0.27 $ 0.10 $ 0.15 $ 0.18 $ 0.25 $ 0.10 $ 0.17 $ 0.08 Loss from discontinuing operations (0.71) (0.60) (0.02) 0.01 (0.04) 0.06 0.02 (0.23) ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Basic (loss) earnings per share $ (0.44) $ (0.50) $ 0.13 $ 0.19 $ 0.21 $ 0.16 $ 0.19 $ (0.15) ============ =========== ========== ============ =========== ============ ============ ========== Net income/(loss) per common share - Diluted Income from continuing $ 0.27 $ 0.10 $ 0.15 $ 0.17 $ 0.24 $ 0.10 $ 0.16 $ 0.08 operations Loss from discontinuing operations (0.71) (0.59) (0.02) 0.02 (0.04) 0.06 0.02 (0.22) ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Diluted (loss) earnings per share $ (0.44) $ (0.49) $ 0.13 $0.19 $ 0.20 $ 0.16 $ 0.18 $ (0.14) ============ =========== ========== ============ =========== ============ ============ ========== Weighted average common shares outstanding Basic 29,456 29,708 31,193 31,030 26,138 23,645 23,007 22,861 Diluted 29,623 30,637 32,110 31,986 27,206 24,317 23,682 23,650 Revenues Products 58.7% 60.9% 60.1% 56.0% 52.7% 80.8% 100.0% 100.0% Mobile Security 41.3% 39.1% 39.9% 44.0% 47.3% 19.2% 0.0% 0.0% ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Total revenue 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% Operating income 13.0% 12.8% 11.4% 13.0% 13.2% 10.9% 18.7% 12.0% Interest expense, net 0.3% 0.4% 0.4% 0.1% 1.7% 2.3% 2.0% 2.2% Other expense (income), net 0.2% 0.0% 0.0% (0.1%) (0.3%) 0.3% 0.0% 0.0% ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Income from continuing operations before taxes 12.5% 12.4% 11.0% 13.0% 11.8% 8.4% 16.7% 9.9% Provision for income taxes 2.9% 8.7% 4.3% 5.0% 3.6% 3.3% 6.6% 3.9% ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Income from continuing operations 9.6% 3.7% 6.7% 8.0% 8.2% 5.1% 10.1% 6.0% Income from discontinuing operations before taxes (28.6%) (21.1%) (1.1%) 0.4% (1.3%) 2.2% 1.0% (24.7%) (Benefit) provision for income taxes (3.4%) 0.8% (0.1%) (0.2%) (0.1%) (0.6%) (0.2%) (7.4%) ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Loss from discontinuing operations (25.2%) (21.9%) (1.0%) 0.6% (1.4%) 2.8% 1.2% (17.2%) ------------ ----------- ---------- ------------ ----------- ------------ ------------ ---------- Net income (15.6%) (18.3%) 5.7% 8.6% 6.7% 7.9% 11.3% (11.3%) ============ =========== ========== ============ =========== ============ ============ ==========
71 LIQUIDITY AND CAPITAL RESOURCES On August 22, 2001, we entered into an Amended and Restated Credit Agreement (the "Credit Agreement") with Bank of America, Canadian Imperial Bank of Commerce, First Union National Bank, SunTrust Bank, Republic Bank, Keybank National Association, and ING (U.S.) Capital LLC. Pursuant to the Credit Agreement, the lenders established a $120,000,000 line of credit for our benefit expiring on February 12, 2004. The Credit Agreement, among other things, provides for (i) total maximum borrowings of $120,000,000 and (ii) the capability for borrowings in foreign currencies. All borrowings under the Credit Agreement bear interest at either (i) a base rate, plus an applicable margin ranging from .000% to .375%, depending on certain conditions, (ii) a eurodollar rate, plus an applicable margin ranging from 1.125% to 1.875%, depending on certain conditions, or (iii) with respect to foreign currency loans, a fronted offshore currency rate, plus an applicable margin ranging from 1.125% to 1.875%, depending on certain conditions. In addition, the Credit Agreement includes both negative and affirmative covenants customary for a credit facility of this nature, such as limitations on capital expenditures, indebtedness, and sales of assets, minimum fixed charge coverage, maintenance of net worth, a limitation on senior indebtedness to capitalization, and a restriction against paying dividends. As of December 31, 2002 we are in compliance with all of our negative and affirmative covenants. The Credit Agreement also provides that Bank of America will make swing-line loans to us of up to $5,000,000 for working capital purposes and will issue letters of credit on our behalf of up to $20,000,000. As of December 31, 2002, we had no outstanding borrowings under our Credit Facility, and Bank of America had issued $11.4 million in letters of credit giving us $108.6 million of availability under our credit agreement. All indebtedness under the Credit Agreement will mature on February 12, 2004. On December 31, 2002, we had approximately $6.9 million in total long-term debt for continuing operations, consisting of $3.9 million in industrial development revenue bonds and $3.0 million in other long-term liabilities assumed in connection with acquisitions. In March 2002, our Board of Directors approved a stock repurchase program authorizing the repurchase of up to a maximum 3.2 million shares of our common stock. In February 2003, the Board of Directors increased this stock repurchase program to authorize the repurchase, from time to time depending upon market conditions and other factors, of up to an additional 4.4 million shares. Through March 10, 2003, we repurchased 3.3 million shares of our common stock under the stock repurchase program at an average price of $12.42 per share, leaving us with the ability to repurchase up to an additional 4.3 million shares of our common stock. Repurchases may be made in the open market, in privately negotiated transactions or otherwise. We expect to continue our policy of repurchasing our common stock from time to time. In addition, our Credit Agreement permits us to repurchase shares of our common stock with no limitation if our ratio of Consolidated Total Indebtedness to Consolidated EBTIDA (as such terms are defined in the Credit Agreement) for any rolling twelve-month period is less than 1:00 to 1. At ratios greater than 1:00 to 1 our credit agreement limits our ability to repurchase shares at $15.0 million. This basket resets to $0 each time the ratio is less than 1.0. 72 Working capital, excluding amounts relating to discontinued operations, was $89.0 million and $112.8 million as of December 31, 2002, and December 31, 2001, respectively. Our fiscal 2002 capital expenditures for continuing operations were $5.9 million. Our fiscal 2002 capital expenditures for discontinued operations were $4.5 million. Such expenditures include leasehold improvements, information technology and communications infrastructure equipment and software, and manufacturing machinery and equipment. We anticipate that the cash generated from operations, proceeds from the sale of discontinued operations, cash on hand and available borrowings under the Credit Agreement will enable us to meet liquidity, working capital and capital expenditure requirements during the next 12 months. We may, however, require additional financing to pursue our strategy of growth through acquisitions. If such financing is required, there are no assurances that it will be available, or if available, that it can be obtained on terms favorable to us or on a basis that is not dilutive to our stockholders. INFLATION We believe that the relatively moderate rates of inflation in recent years have not had a significant impact on our revenue or profitability. Historically, we have been able to offset any inflationary effects by either increasing prices or improving cost efficiencies. 73 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth certain information regarding beneficial ownership of our Common Stock as of December 30, 2003, by (i) each person or entity known to us owning beneficially 5% or more of our Common Stock, (ii) each of our directors and nominees for directors, (iii) each of our executive officers and (iv) all directors, nominees for directors and executive officers as a group. Unless otherwise noted shares are owned directly or indirectly with sole voting and investment power.
SHARES BENEFICIALLY NAME AND ADDRESS OWNED (1) PERCENT (1), (16) - ---------------- ------------- ----------------- T. Rowe Price Associates, Inc. (2) 3,033,700 11.0% Westfield Capital Management Co. LLC (3) 2,956,000 10.7% Warren B. Kanders and Kanders Florida Holdings, Inc. (4) 2,515,655 8.8% Lord Abbett & Co. (5) 1,710,781 6.2% Wellington Management Company, LLP (6) 1,609,200 5.8% Burtt R. Ehrlich (7) 146,650 * Nicholas Sokolow (8) 208,700 * Thomas W. Strauss (9) 138,500 * Alair A. Townsend (10) 109,716 * Deborah Zoullas (11) 16,000 * Robert R. Schiller (12) 284,116 1.0% Stephen E. Croskrey (13) 259,116 * Robert F. Mecredy (14) 18,466 * All directors, nominees for directors and executive officers as a group (9 persons)........................................(15) 3,814,086 12.8%
- ------------------ *Less than 1% (1) As used in this table, a beneficial owner of a security includes any person who, directly or indirectly, through contract, arrangement, understanding, relationship or otherwise has or shares (a) the power to vote, or direct the voting of, such security or (b) investment power which includes the power to dispose, or to direct the disposition of, such security. In addition, a person is deemed to be the beneficial owner of a security if that person has the right to acquire beneficial ownership of such security within 60 days. 74 (2) This information has been obtained from the Schedule 13G filed by T. Rowe Price Associates, Inc. on February 3, 2003. The address of T. Rowe Price Associates, Inc. is 100 E. Pratt Street, Baltimore, Maryland 21202. (3) This information has been obtained from the Schedule 13G filed by Westfield Capital Management Co. LLC on December 5, 2002. The address of Westfield Capital Management Co. LLC is One Financial Center, Boston, MA 02111. (4) Of such shares, Kanders Florida Holdings, Inc., of which Mr. Kanders is the sole stockholder and sole director, owns 2,098,395 shares. Includes options to purchase 412,500 shares of common stock. Excludes unvested restricted stock awards of 110,447 shares and vested deferred restricted stock awards of 200,000 shares granted to Mr. Kanders over which Mr. Kanders does not have voting or dispositive power and unvested options to purchase 685,000 shares of common stock. Also includes 4,760 shares held for the benefit of Mr. Kanders' children. (5) This information has been obtained from the Schedule 13G filed by Lord Abbett & Co. on January 30, 2003. The address of Lord, Abbett & Co. is 90 Hudson Street, Jersey City, New Jersey 07302. (6) This information has been obtained from Schedule 13G filed by Wellington Management Company, LLP on February 14, 2003. The amount reported consists of shares of common stock owned by clients of Wellington Management. The address of Wellington Management is 75 State Street, Boston, MA 02109. (7) Includes options to purchase 51,750 shares of common stock. Excludes unvested options to purchase 6,750 shares of common stock. Also includes 5,000 shares owned by Mr. Ehrlich's children and 6,500 shares in trust for the benefit of his children, of which Mr. Ehrlich's spouse is trustee, of which he disclaims beneficial ownership. Also includes 400 shares owned by Mr. Ehrlich's spouse's individual retirement account of which Mr. Ehrlich disclaims beneficial ownership. (8) Includes options to purchase 127,500 shares of common stock. Excludes unvested options to purchase 7,500 shares of common stock. Also includes 60,000 shares owned by S.T. Investors Fund, LLC, a limited liability company of which Mr. Sokolow is a member, 10,000 shares owned by Mr. Sokolow's profit sharing plan and 11,200 shares held for the benefit of Mr. Sokolow's children and of which Mr. Sokolow disclaims beneficial ownership. (9) Includes options to purchase 126,000 shares of common stock. Excludes unvested options to purchase 6,000 shares of common stock. (10) Includes options to purchase 100,000 shares of common stock. Excludes unvested options to purchase 6,000 shares of common stock. (11) Includes options to purchase 16,000 shares of common stock. Excludes unvested options to purchase 26,000 shares of common stock. (12) Includes options to purchase 275,000 shares of common stock and 8,665 shares of restricted common stock. Excludes deferred performance stock awards of 150,000 shares and unvested restricted stock awards of 100,000 shares granted to Mr. Schiller over which Mr. Schiller does not have voting or dispositive power. Excludes unvested options to purchase 350,000 shares of common stock. (13) Includes options to purchase 250,000 shares of common stock. Excludes unvested options to purchase 100,000 shares of common stock and unvested restricted stock award of 2,089 shares granted to Mr. Croskrey over which Mr. Croskrey does not have voting or dispositive power. (14) Includes of options to purchase 16,666 shares of common stock. Excludes unvested restricted stock awards of 4,200 shares over which Mr. Mecredy does not have voting or dispositive power. Excludes unvested options to acquire 108,334 shares of common stock. (15) See footnotes (4) and (7-14). (16) Percent is based on 28,269,145 shares of common stock outstanding as of December 30, 2003. 75 THE EXCHANGE OFFER PURPOSE OF THE EXCHANGE OFFER We issued the old notes on August 12, 2003 to Wachovia Capital Markets, LLC, the initial purchaser, pursuant to a purchase agreement, dated August 6, 2003, among Armor Holdings, the subsidiary guarantors listed on the signature pages thereto, and the initial purchaser. The initial purchaser subsequently sold the old notes to "qualified institutional buyers", as defined in Rule 144A under the Securities Act, in reliance on Rule 144A, and outside the United States under Regulation S of the Securities Act. As a condition to the sale of the old notes, we entered into a registration rights agreement with the initial purchaser on August 12, 2003. Pursuant to the registration rights agreement, we agreed that we would: o file a registration statement with the Commission with respect to the new notes no later than 150 days after the date of initial issuance of the old notes; o use our reasonable best efforts to cause the registration statement to be declared effective by the Commission no later than 195 days after the date of initial issuance of the old notes; o consummate the exchange offer no later than 225 days after the date of initial issuance of the old notes; o file a shelf registration statement for the resale of the new notes if we cannot effect an exchange offer or in certain other circumstances; o use our reasonable best efforts to cause the shelf registration statement, if necessary, to be declared effective; and o use our reasonable best efforts to keep the shelf registration statement continuously effective for a period of at least two years subject to certain provisions of the registration rights agreement. Upon the effectiveness of the registration statement, we will offer the new notes in exchange for the old notes. RESALE OF THE NEW NOTES Based upon an interpretation by the staff of the Commission contained in no-action letters issued to third parties, we believe that you may exchange old notes for new notes in the ordinary course of business. For further information on the Commission's position, see Exxon Capital Holdings Corporation, available April 13, 1989, Morgan Stanley & Co. Incorporated, available June 5, 1991 and Shearman & Sterling, available July 2, 1993, and other interpretive letters to similar effect. You will be allowed to resell new notes to the public without further registration 76 under the Securities Act and without delivering to purchasers of the new notes a prospectus that satisfies the requirements of Section 10 of the Securities Act so long as you do not participate, do not intend to participate, and have no arrangement with any person to participate, in a distribution of the new notes. However, the foregoing does not apply to you if you are: o a broker-dealer who receives the new notes directly from us to resell pursuant to Rule 144A or any other available exemption under the Securities Act; or o an "affiliate" of ours within the meaning of Rule 405 under the Securities Act. In addition, if: o you are a broker-dealer; or o you acquire new notes in the exchange offer for the purpose of distributing or participating in the distribution of the new notes, you cannot rely on the position of the staff of the Commission contained in the no-action letters mentioned above and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction, unless an exemption from registration is otherwise available. Each broker-dealer that receives new notes for its own account in exchange for old notes, which the broker-dealer acquired as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. See "Plan of Distribution." The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. A broker-dealer may use this prospectus, as it may be amended or supplemented from time to time, in connection with resales of new notes received in exchange for old notes which the broker-dealer acquired as a result of market-making or other trading activities. TERMS OF THE EXCHANGE OFFER Upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal, we will accept any and all outstanding old notes validly tendered and not withdrawn before the expiration date for an equal amount of new notes which are registered under the Securities Act, subject to the satisfaction of certain conditions. We will issue $1,000 principal amount of new notes in exchange for each $1,000 principal amount of outstanding old notes surrendered pursuant to the exchange offer. You may tender old notes only in integral multiples of $1,000. The form and terms of the new notes are the same as the form and terms of the old notes except that we have registered the new notes under the Securities Act and, therefore, the new notes will not bear legends restricting their transfer. 77 The new notes will evidence the same debt as the old notes and will be issued under the same indenture, so the new notes and the old notes will be treated as a single class of debt securities under the indenture. As of the date of this prospectus, $150,000,000 in aggregate principal amount of the old notes is outstanding. Only registered holders of the old notes, or their legal representative or attorney-in-fact, as reflected on the records of the trustee under the indenture, may participate in the exchange offer. We will not set a fixed record date for determining registered holders of the old notes entitled to participate in the exchange offer. You do not have any appraisal or dissenters' rights under the indenture in connection with the exchange offer. We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement and the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations of the Commission. We will be deemed to have accepted validly tendered old notes when, as and if we had given oral or written notice of acceptance to the exchange agent. The exchange agent will act as your agent for the purposes of receiving the new notes from us. If you tender old notes in the exchange offer, you will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of outstanding notes. We will pay all charges and expenses, other than applicable taxes, in connection with the exchange offer. Expiration Date; Extensions; Amendments The term "expiration date" will mean 5:00 p.m., New York City time, on ________, 2004, unless we, in our sole discretion, extend the exchange offer, in which case the term "expiration date" will mean the latest date and time to which we extend the exchange offer. To extend the exchange offer, we will: o notify the exchange agent of any extension orally or in writing; and o notify the registered holders of the old notes by means of a press release or other public announcement, each before 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. We reserve the right, in our reasonable discretion: o to delay accepting any old notes until such time as the conditions listed under "-Conditions" are satisfied or waived; o to extend the exchange offer; o if any conditions listed below under "-Conditions" are not satisfied, to terminate the exchange offer by giving oral or written notice to the exchange agent; or 78 o to waive any conditions in any respect, by giving oral or written notice to the exchange agent. If we terminate the exchange offer, we will return the old notes deposited by the holder of the old notes in accordance with the procedures described in this prospectus under "-Return of Notes." Any delay in acceptance, extension, or termination will be followed as soon as practicable by a press release or other public announcement or post-effective amendment. If the exchange offer is amended in a manner determined by us to constitute a material change, we will promptly disclose that amendment by means of a prospectus supplement or post-effective amendment that will be distributed to the holders. We will also extend the exchange offer for a period of five to ten business days, depending upon the significance of the amendment and the manner of disclosure to the holders, if the exchange offer would otherwise expire during the five to ten business day period. INTEREST ON THE NEW NOTES The new notes will each accrue interest on the same terms as the old notes. Interest on the notes will accrue at the rate of 8 1/4% per annum and will be payable semi-annually in arrears on February 15 and August 15, commencing on February 15, 2004. We will make each interest payment to the Holders of record on the immediately preceding February 1 and August 1. Old notes accepted for exchange will not receive accrued interest thereon at the time of exchange. However, each new note will bear interest from the most recent date to which interest has been paid on the old notes, or if no interest has been paid on the old notes or the new notes, from August 12, 2003. PROCEDURES FOR TENDERING You may tender old notes in the exchange offer only if you are a registered holder of old notes. To tender in the exchange offer, you must: o complete, sign and date the letter of transmittal or a facsimile of the letter of transmittal; o have the signatures guaranteed if required by the letter of transmittal; and o mail or otherwise deliver the letter of transmittal or the facsimile of the letter of transmittal to the exchange agent at the address listed below under "-Exchange Agent" for receipt before the expiration date. 79 In addition, either: o the exchange agent must receive certificates for the old notes along with the letter of transmittal into its account at the depositary pursuant to the procedure for book-entry transfer described below before the expiration date; o the exchange agent must receive a timely confirmation of a book-entry transfer of the old notes, if the procedure is available, into its account at the depositary pursuant to the procedure for book-entry transfer described below before the expiration date; or o you must comply with the guaranteed delivery procedures described below. Your tender, if not withdrawn before the expiration date, will constitute an agreement between you and us in accordance with the terms and subject to the conditions described in this prospectus and in the letter of transmittal. The method of delivery of old notes and the letter of transmittal and all other required documents to the exchange agent is at your election and risk. We recommend that instead of delivery by mail, you use an overnight or hand delivery service, properly insured. In all cases, you should allow sufficient time to assure delivery to the exchange agent before the expiration date. You should not send letters of transmittal or old notes to us. You may request your respective brokers, dealers, commercial banks, trust companies or nominees to effect the transactions described above for you. If you are a beneficial owner of old notes whose old notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your old notes, you should contact the registered holder promptly and instruct the registered holder to tender on your behalf. If you wish to tender on your own behalf, before completing and executing the letter of transmittal and delivering the old notes you must either: o make appropriate arrangements to register ownership of the old notes in your name; or o obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time. Unless the old notes are tendered: o by a registered holder who has not completed the box entitled "Special Issuance Instructions" or the box entitled "Special Delivery Instructions" on the letter of transmittal; or o for the account of: o a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc.; 80 o a commercial bank or trust company located or having an office or correspondent in the United States; or o an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act that is a member of one of the recognized signature guarantee programs identified in the letter of transmittal, an eligible guarantor institution must guarantee the signatures on a letter of transmittal or a notice of withdrawal described below under "-Withdrawal of Tenders". If the letter of transmittal is signed by a person other than the registered holder, the old notes must be endorsed or accompanied by a properly completed bond power, signed by the registered holder as the registered holder's name appears on the old notes. If the letter of transmittal or any old notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, they should so indicate when signing, and unless waived by us, they must submit evidence satisfactory to us of their authority to so act with the letter of transmittal. The exchange agent and the depositary have confirmed that any financial institution that is a participant in the depositary's system may utilize the depositary's Automated Tender Offer Program ("ATOP") to tender notes. Holders of old notes utilizing the ATOP system must transmit to the exchange agent, on or before the expiration date, a computer-generated message through the ATOP system that is received by the exchange agent and which forms a part of a confirmation of book-entry transfer in which you acknowledge and agree to be bound by the terms of the letter of transmittal. We will determine in our sole discretion all questions as to the validity, form, eligibility, including time of receipt, acceptance and withdrawal of tendered old notes, which determination will be final and binding. We reserve the absolute right to reject any and all old notes not properly tendered or any old notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular old notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, you must cure any defects or irregularities in connection with tenders of old notes within the time we determine. Although we intend to notify you of defects or irregularities with respect to tenders of old notes, neither we, the exchange agent nor any other person will incur any liability for failure to give you that notification. Unless waived, we will not deem tenders of old notes to have been made until you cure the defects or irregularities. While we have no present plan to acquire any old notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any old notes that are not tendered in the exchange offer, we reserve the right in our sole discretion to purchase or make offers for any old notes that remain outstanding after the expiration date. We also reserve the right to terminate the exchange offer, as described below under "-Conditions", and, to the extent permitted by applicable 81 law, purchase old notes in the open market, in privately negotiated transactions or otherwise. The terms of any of those purchases or offers could differ from the terms of the exchange offer. If you wish to tender old notes in exchange for new notes in the exchange offer, we will require you to represent that: o you are not an affiliate of ours; o you are not a broker-dealer tendering old notes acquired for your own account directly from us; o you will acquire any new notes in the ordinary course of your business; and o you are not engaged in, and do not intend to engage in, and have no arrangement or understanding to participate in, a distribution of the new notes to be issued in the exchange offer. In addition, in connection with the resale of new notes, any participating broker-dealer who acquired the old notes for its own account as a result of market-making or other trading activities must deliver a prospectus meeting the requirements of the Securities Act. The Commission has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to the new notes, other than a resale of an unsold allotment from the original sale of the old notes, with the prospectus contained in the registration statement. RETURN OF NOTES If we do not accept any tendered old notes for any reason described in the terms and conditions of the exchange offer or if you withdraw any tendered old notes or submit old notes for a greater principal amount than you desire to exchange, we will return the unaccepted, withdrawn or non-exchanged old notes without expense to you as promptly as practicable after the expiration or termination of the exchange offer. In the case of old notes tendered by book-entry transfer into the exchange agent's account at the depositary pursuant to the book-entry transfer procedures described below, we will credit the old notes to an account maintained with the depositary as promptly as practicable. BOOK-ENTRY TRANSFER The exchange agent will make a request to establish an account with respect to the old notes at the depositary for purposes of the exchange offer within two business days after the date of this prospectus, and any financial institution that is a participant in the depositary's systems may make book-entry delivery of old notes by causing the depositary to transfer the old notes into the exchange agent's account at the depositary in accordance with the depositary's procedures for transfer. However, although delivery of old notes may be effected through book-entry transfer at the depositary, you must transmit and the exchange agent must receive, the letter of transmittal or a facsimile of the letter of transmittal, with any required signature guarantees and any other required 82 documents, at the address below under "-Exchange Agent" on or before the expiration date or pursuant to the guaranteed delivery procedures described below. GUARANTEED DELIVERY PROCEDURES If you wish to tender your old notes, but time will not permit a letter of transmittal, certificates representing the old notes to be tendered or other required documents to reach the exchange agent before the expiration date, or if the procedure for book-entry transfer cannot be completed on or before the expiration date, you may effect a tender if: o the tender is made by or through an eligible guarantor institution; o before the expiration date, the exchange agent receives from the eligible guarantor institution a properly completed and duly executed notice of guaranteed delivery, substantially in the form provided by us, that: o states the name and address of the holder of the old notes, the name(s) in which the old notes are registered and the principal amount of old notes tendered, o states that the tender is being made by that notice of guaranteed delivery, and o guarantees that, within three New York Stock Exchange trading days after the expiration date, the eligible guarantor institution will deposit with the exchange agent the letter of transmittal, together with the certificates representing the old notes in proper form for transfer or a confirmation of a book-entry transfer, as the case may be, and any other documents required by the letter of transmittal; and o within three New York Stock Exchange trading days after the expiration date, the exchange agent receives a properly executed letter of transmittal, as well as the certificates representing all tendered old notes in proper form for transfer or a book-entry confirmation, as the case may be, and all other documents required by the letter of transmittal. Upon request, the exchange agent will send to you a notice of guaranteed delivery if you wish to tender your old notes according to the guaranteed delivery procedures described above. WITHDRAWAL OF TENDERS Except as otherwise provided in this prospectus, you may withdraw tenders of old notes at any time before 5:00 p.m., New York City time, on the expiration date. To withdraw a tender of old notes in the exchange offer, the exchange agent must receive a written or facsimile transmission notice of withdrawal at its address listed in this prospectus before the expiration date. Any notice of withdrawal must: o specify the name of the person who deposited the old notes to be withdrawn; 83 o identify the old notes to be withdrawn, including the principal amount of the old notes; and o be signed in the same manner as the original signature on the letter of transmittal by which the old notes were tendered, including any required signature guarantees. We will determine in our sole discretion all questions as to the validity, form and eligibility of the notices, and our determination will be final and binding on all parties. We will not deem any properly withdrawn old notes to have been validly tendered for purposes of the exchange offer, and we will not issue new notes with respect to those old notes, unless you validly re-tender the withdrawn old notes. You may re-tender properly withdrawn old notes by following one of the procedures described above under "-Procedures for Tendering" at any time before the expiration date. CONDITIONS Notwithstanding any other term of the exchange offer, we will not be required to accept for exchange, or exchange the new notes for, any old notes, and may terminate the exchange offer as provided in this prospectus before the acceptance of the old notes, if: o the exchange offer violates applicable law, rules or regulations or an applicable interpretation of the staff of the Commission; o an action or proceeding has been instituted or threatened in any court or by any governmental agency which might materially impair our ability to proceed with the exchange offer (the term "threatened" means a written demand or statement has been made, or a written notice has been given, that would lead a prudent person to conclude that such an action or proceeding is likely to be asserted, commenced, taken, or otherwise pursued in the future); or o all governmental approvals which we deem necessary for the completion of the exchange offer have not been obtained. If we determine in our reasonable discretion that any of these conditions are not satisfied, we may: o refuse to accept any old notes and return all tendered old notes to you; o extend the exchange offer and retain all old notes tendered before the exchange offer expires, subject, however, to your rights to withdraw the old notes; or o waive the unsatisfied conditions with respect to the exchange offer and accept all properly tendered old notes that have not been withdrawn. 84 If the waiver constitutes a material change to the exchange offer, we will promptly disclose the waiver by means of a prospectus supplement that we will distribute to the registered holders of the old notes. SHELF REGISTRATION Pursuant to the registration rights agreement, in the event that: o we are not permitted to file a registration statement or permitted to consummate the exchange offer because the exchange offer is not permitted by applicable law or Commission policy; o the exchange offer is not consummated within 225 days of the date the old notes were issued; or o a holder of old notes so requests under certain circumstances, we will file with the Commission a shelf registration statement to register for public resale the old notes held by you if you provide us with the necessary information for inclusion in the shelf registration statement. LIQUIDATED DAMAGES Pursuant to the registration rights agreement, if: o we do not file the registration statement with the Commission on or prior to the 150th day following the date of initial issuance of the old notes; o we do not cause the registration statement to become effective on or prior to the 195th day following the date of initial issuance of the old notes; o we do not complete the exchange offer on or prior to the 225th day following the date of initial issuance of the old notes; or o the Commission shall have issued a stop order suspending the effectiveness of the registration statement of which this prospectus is a part or our shelf registration statement, as the case may be, or proceedings have been initiated with respect to such registration statement. with each of the items above constituting a "registration default", we agreed to pay liquidated damages to the holders, with respect to the first 90-day period immediately following the occurrence of the first registration default in an amount equal to 0.5% per annum per $1,000 principal amount of old notes held by such holder. The amount of the liquidated damages will increase by an additional 0.5% per annum per $1,000 principal amount of old notes with respect to each subsequent 90-day period until all registration defaults have been cured, up to a maximum amount of liquidated damages for all registration defaults of 1.0% per annum per $1,000 principal 85 amount of old notes. Following the cure of all registration defaults, the accrual of liquidated damages will cease. EXCHANGE AGENT We have appointed Wachovia Bank, National Association, as exchange agent for the exchange offer. You should direct questions and requests for assistance, requests for additional copies of this prospectus or the letter of transmittal and requests for a notice of guaranteed delivery to the exchange agent addressed as follows: By Registered or Certified Mail: Wachovia Bank, National Association Corporate Trust Operations 1525 West W. T. Harris Boulevard Charlotte, North Carolina 28288 Attn.: Marsha Rice Telephone # (704) 490-7413 Fax # (704) 590-7628 By Hand/Overnight Delivery: Wachovia Bank, National Association Corporate Trust Operations 1525 West W.T. Harris Boulevard Charlotte, North Carolina 28262 Attn.: Marsha Rice Delivery to an address other than the one stated above or transmission via a facsimile number other than the one stated above will not constitute a valid delivery. FEES AND EXPENSES We will bear all expenses incident to our or the guarantors' performance of or compliance with the registration rights agreement, regardless of whether the registration statement becomes effective, including without limitation: o all registration and filing fees and expenses (including filings made by the initial purchaser or holder of notes with the National Association of Securities Dealers, Inc. (and, if applicable, the fees and expenses of any "qualified independent underwriter" and its counsel that may be required by the rules and regulations of the NASD)); o all fees and expenses for compliance with Federal and state securities laws; 86 o all expenses of printing (including printing certificates for the new notes to be issued in the exchange offer and printing of prospectuses), messenger and delivery services and telephone; o all fees and disbursements of counsel for us, the guarantors and, as discussed below, the holders of old notes; and o all fees and disbursements of our and the guarantors' independent certified public accountants. We will bear our and the guarantors' internal expenses (including, without limitation, all salaries and expenses of officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any person, including special experts, retained by us or the guarantors. In connection with any registration statement required by the registration rights agreement, we and the guarantors will reimburse the initial purchaser and the holders of old notes being tendered in the exchange offer and/or resold pursuant to the "Plan of Distribution" contained in the prospectus or registered pursuant to a shelf registration statement, as applicable, for the reasonable fees and disbursements of not more than one counsel. CONSEQUENCE OF FAILURE TO EXCHANGE Participation in the exchange offer is voluntary. We urge you to consult your financial and tax advisors in making your decisions on what action to take. Old notes that are not exchanged for new notes pursuant to the exchange offer will remain restricted securities. Accordingly, those old notes may be resold only: o to a person whom the seller reasonably believes is a qualified institutional buyer in a transaction meeting the requirements of Rule 144A under the Securities Act; o in a transaction meeting the requirements of Rule 144 under the Securities Act; o outside the United States to a foreign person in a transaction meeting the requirements of Rule 903 or 904 of Regulation S under the Securities Act; o in accordance with another exemption from the registration requirements of the Securities Act and based upon an opinion of counsel if we so request; o to us; or o pursuant to an effective registration statement. In each case, the old notes may be resold only in accordance with any applicable blue sky or securities laws of any state of the United States or any other applicable jurisdiction. 87 The foregoing description of the exchange offer contained a summary of certain provisions of the registration rights agreement, which is incorporated herein by reference. It does not restate that agreement in its entirety. We urge you to read the registration rights agreement in its entirety because it, and not this description, defines your registration rights as holders of the old notes. DESCRIPTION OF THE NEW NOTES The form and terms of the new notes and the old notes are identical in all material respects, except that the transfer restrictions applicable to the old notes do not apply to the new notes. The old notes were, and the new notes will be, issued under an indenture, dated as of August 12, 2003, as supplemented by the First Supplemental Indenture dated as of September 30, 2003 and as further supplemented by the Second Supplemental Indenture dated as of December 9, 2003 (collectively, the "Indenture"), among Armor Holdings, Inc., the subsidiary guarantors listed as signatories thereto and the Wachovia Bank, National Association, as trustee (the "Trustee"). The terms of the new notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. The following description is a summary of the material provisions of the Indenture. It does not restate the agreement in its entirety. We urge you to read the Indenture because it, and not this description, defines your rights as holders of the notes. Copies of the Indenture are available as set forth below under "Where You Can Find More Information." You can find the definitions of certain terms used in this description under the subheading "--Certain Definitions." Certain defined terms used in this description but not defined below under "--Certain Definitions" have the meanings assigned to them in the Indenture. In this description, the word "Armor Holdings" refers only to Armor Holdings and not to any of its subsidiaries. The registered holder of a note will be treated as the owner of it for all purposes. Only registered holders will have rights under the Indenture. GENERAL THE NEW NOTES The notes will mature on August 15, 2013 and were issued in an aggregate principal amount of $150,000,000. We may issue additional notes (the "Additional Notes") from time to time after this offering, subject to the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant. The notes and any Additional Notes subsequently issued under the Indenture would be treated as a single class for all purposes under the Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. We will issue Additional Notes in denominations of $1,000 and integral multiples of $1,000. Interest on the notes is accruing at the rate of 8.25% per annum from August 12, 2003 and will be payable semi-annually in arrears on February 15 and August 15 of each year, commencing on February 15, 2004. We will make each interest payment to the Holders of record on the immediately preceding February 1 and August 1. 88 Interest on the notes will accrue from the date of original issuance or, if interest has already been paid, from the most recent interest payment date to which interest has been paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The notes are: o general unsecured obligations of Armor Holdings; o subordinated in right of payment to all existing and future Senior Debt of Armor Holdings; o pari passu in right of payment with any future senior subordinated Indebtedness of Armor Holdings; and o guaranteed by the Subsidiary Guarantors. The Subsidiary Guarantees The notes are guaranteed, jointly and severally, by all of the existing and future Domestic Subsidiaries of Armor Holdings that are Restricted Subsidiaries, other than USDS, Inc. Each Subsidiary Guarantee of the notes are: o a general unsecured obligation of the Subsidiary Guarantor; o subordinated in right of payment to all existing and future Senior Debt of the Subsidiary Guarantor; and o pari passu in right of payment with any future senior subordinated Indebtedness of the Subsidiary Guarantor. As of the date hereof, all of our domestic subsidiaries, except for USDS, Inc., will be "Restricted Subsidiaries." However, under the circumstances described below under the "Designation of Restricted and Unrestricted Subsidiaries" covenant we will be permitted to designate certain of our subsidiaries as "Unrestricted Subsidiaries." Any Unrestricted Subsidiaries will not be subject to any of the restrictive covenants in the Indenture and will not guarantee the notes. Each Subsidiary Guarantee will be subordinated to the prior payment in full in cash of all Senior Debt of that Subsidiary Guarantor. The obligations of each Subsidiary Guarantor under its Subsidiary Guarantee will be limited as necessary to prevent that Subsidiary Guarantee from constituting a fraudulent conveyance under applicable law. See "Risk Factors--Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors." Methods Of Receiving Payments On The Notes If a Holder has given wire transfer instructions to Armor Holdings, it will pay all principal, 89 interest and premium and additional interest, if any, on that Holder's notes in accordance with those instructions. All other payments on notes will be made at the office or agency of the Paying Agent and Registrar within New York, New York or Charlotte, North Carolina unless Armor Holdings elects to make interest payments by check mailed to the Holders at their addresses set forth in the register of Holders. Paying Agent And Registrar For The Notes The Trustee will initially act as Paying Agent and Registrar. We may change the Paying Agent or Registrar without prior notice to the Holders, and we or any of our Subsidiaries may act as Paying Agent or Registrar. Transfer And Exchange A Holder may transfer or exchange notes in accordance with the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the we may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. We are not required to transfer or exchange any note selected for redemption. Also, we are not required to transfer or exchange any note for a period of 15 days before a selection of notes to be redeemed. The registered Holder of a note will be treated as the owner of it for all purposes. SUBORDINATION The payment of principal, interest and premium and additional interest, if any, on (or any other obligations relating to) the notes is subordinated to the prior payment in full in cash of all of our Senior Debt, including our Senior Debt incurred after the date of the Indenture. The holders of our Senior Debt are entitled to receive payment in full in cash of all Obligations due in respect of our Senior Debt (including interest after the commencement of any bankruptcy proceeding at the rate specified in our applicable Senior Debt) before the Holders of notes will be entitled to receive any payment with respect to (or any other Obligations relating to) the notes or any distribution of assets or proceeds (except that Holders of notes may receive and retain Permitted Junior Securities and payments made from the trust described under "--Legal Defeasance and Covenant Defeasance"), in the event of any distribution to our creditors in connection with: (1) our liquidation or dissolution, whether voluntary or involuntary; (2) our bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to us or our property, whether voluntary or involuntary; (3) any assignment for the benefit of creditors; or (4) any marshaling of our assets and liabilities. 90 We also may not make any payment in respect of the notes or any distribution of assets or proceeds (except in Permitted Junior Securities or from the trust described under "--Legal Defeasance and Covenant Defeasance") if: (1) a payment default on our Designated Senior Debt occurs and is continuing beyond any applicable grace period; or (2) any other default occurs and is continuing on any series of our Designated Senior Debt that permits holders of that series of our Designated Senior Debt to accelerate its maturity and the Trustee receives a notice of such default (a "Payment Blockage Notice") from us or any agent or representative with respect to such Designated Senior Debt (a "nonpayment default"). Payments on the notes may and shall be resumed: (1) in the case of a payment default on our Designated Senior Debt, upon the date on which such default is cured or waived; and (2) in case of a nonpayment default, the earlier of the date on which such default is cured or waived or 179 days after the date on which the applicable Payment Blockage Notice is received by the Trustee, unless the maturity of our Designated Senior Debt has been accelerated. No new Payment Blockage Notice may be delivered unless and until 360 days have elapsed since the delivery of the immediately prior Payment Blockage Notice. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice unless such default has been cured or waived for a period of not less than 90 days. If the Trustee or any Holder of the notes receives a payment in respect of the notes (except in Permitted Junior Securities or from the trust described under "--Legal Defeasance and Covenant Defeasance") when: (1) the payment is prohibited by these subordination provisions; and (2) the Trustee or the Holder has actual knowledge that the payment is prohibited; the Trustee or the Holder, as the case may be, shall hold the payment in trust for the benefit of the holders of our Senior Debt and shall deliver notice thereof to the agent or representative of the holders of Senior Debt. Upon the proper written request of the agent or representative of the holders of our Designated Senior Debt, or, if no such Designated Senior Debt exists, the holders of our Senior Debt, the Trustee or the Holder, as the case may be, shall deliver the amounts in trust to the holders of our Senior Debt or their proper representative. We must promptly notify holders of our Senior Debt and any agent or representative with respect to such Senior Debt if payment of the notes is accelerated because of an Event of Default. 91 As a result of the subordination provisions described above, in the event of our bankruptcy, liquidation or reorganization, Holders of notes may recover less ratably than our creditors who are holders of our Senior Debt. In addition, because the subordination provisions of the Indenture require that amounts otherwise payable, or assets distributable, to Holders of the notes in a bankruptcy or similar proceeding be paid to holders of Senior Debt instead, Holders of the notes may receive less ratably than our other creditors, including holders of trade payables in any such proceeding. Payments under the Subsidiary Guarantee by each Subsidiary Guarantor will be subordinated to the prior payment in full in cash of all Senior Debt of such Subsidiary Guarantor, including Senior Debt of such Subsidiary Guarantor incurred after the date of the Indenture, on the same basis as provided above with respect to the subordination of payments on the notes by Armor Holdings to the prior payment in full in cash of Senior Debt of Armor Holdings. See "Risk Factors--Risks Relating to the New Notes--Your right to receive payments on the notes is junior to our existing senior indebtedness and possibly all of our future borrowings. Further, the guarantees of the new notes are junior to all of the guarantors' existing senior indebtedness and possibly to all their future borrowings." "Designated Senior Debt" means: (1) any Indebtedness outstanding under the Credit Facilities; and (2) after payment in full of all Obligations under the Credit Facilities, any other Senior Debt permitted under the Indenture the principal amount of which is $25.0 million or more and that has been designated by Armor Holdings as "Designated Senior Debt." "Permitted Junior Securities" means: (1) Equity Interests in Armor Holdings or any Subsidiary Guarantor or any other business entity provided for by a plan of reorganization; or (2) debt securities of Armor Holdings or any Subsidiary Guarantor or any other business entity provided for by a plan of reorganization, in each case, that are subordinated to all Senior Debt and any debt securities issued in exchange for Senior Debt to substantially the same extent as, or to a greater extent than, the notes and the Subsidiary Guarantees are subordinated to Senior Debt under the Indenture. "Senior Debt" means: (1) all Indebtedness of Armor Holdings or any Subsidiary Guarantor outstanding under the Credit Facilities and all Hedging Obligations with respect thereto; (2) any other Indebtedness (including, without limitation, Hedging Obligations) of Armor Holdings or any Subsidiary Guarantor permitted to be incurred under the terms of the Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the notes or any Subsidiary Guarantee; and 92 (3) all other Obligations with respect to the items listed in the preceding clauses (1) and (2). Notwithstanding anything to the contrary in the preceding, Senior Debt will not include: (1) any liability for federal, state, local or other taxes owed or owing by Armor Holdings or any Subsidiary Guarantor; (2) any Indebtedness of Armor Holdings or any Subsidiary Guarantor to any Subsidiaries or other Affiliates of Armor Holdings or any Subsidiary Guarantor or, in the case of Indebtedness of any Subsidiary Guarantor, to Armor Holdings; (3) any trade payables; (4) the portion of any Indebtedness that is incurred in violation of the Indenture; (5) any Indebtedness of Armor Holdings or any Subsidiary Guarantor that, when incurred, was without recourse to Armor Holdings or such Subsidiary Guarantor; (6) any repurchase, redemption or other Obligation in respect of Disqualified Stock or any rights with respect thereto; or (7) any Indebtedness owed to any employee of Armor Holdings or any of its Subsidiaries. OPTIONAL REDEMPTION Except as provided below, the notes are not redeemable at our option prior to August 15, 2008. After August 15, 2008, we may redeem all or a part of the notes, subject to any restriction or other provisions relating thereto contained in any Senior Debt, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and additional interest, if any, thereon, to the applicable redemption date, if redeemed during the twelve-month period beginning on August 15 of the years indicated below: YEAR PERCENTAGE - ---- ---------- 2008.............................................. 104.125% 2009.............................................. 102.750% 2010.............................................. 101.375% 2011 and thereafter............................... 100.000% Notwithstanding the foregoing, at any time prior to August 15, 2006, we may redeem up to 93 35% of the aggregate principal amount of notes issued under the Indenture, subject to any restriction or other provisions relating thereto contained in any Senior Debt, at a redemption price of 108.25% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, to the redemption date, with the net cash proceeds of one or more Public Equity Offerings; provided that: (1) at least 65% of the aggregate principal amount of notes originally issued under the Indenture remains outstanding immediately after the occurrence of each such redemption (excluding notes held by Armor Holdings and its Subsidiaries); and (2) such redemption must occur within 60 days of the date of the closing of each such Public Equity Offering. If less than all of the notes are to be redeemed at any time, the Trustee will select notes for redemption on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate. The notes may only be redeemed in integral multiples of $1,000. Notices of redemption shall be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each Holder of notes to be redeemed at its registered address. Notices of redemption may not be conditional. If any note is to be redeemed in part only, the notice of redemption that relates to that note shall state the portion of the principal amount thereof (which must be an integral multiple of $1,000) to be redeemed. A new note in principal amount equal to the unredeemed portion of the original note will be issued in the name of the Holder thereof upon cancellation of the original note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on notes or portions of them called for redemption. The Credit Agreement will contain provisions that prohibit or otherwise limit Armor Holdings from exercising any such option. MANDATORY REDEMPTION We are not required to make mandatory redemption or sinking fund payments with respect to the notes. REPURCHASE AT THE OPTION OF HOLDERS Change Of Control If a Change of Control occurs, each Holder of notes will have the right to require us to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that Holder's notes pursuant to a Change of Control Offer on the terms set forth in the Indenture. In the Change of Control Offer, we will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of notes repurchased plus accrued and unpaid interest and additional interest, if any, thereon, to the date of purchase. Within 30 days following any Change of Control, we will mail a notice to each Holder describing the transaction or transactions that constitute the Change of 94 Control and offering to repurchase notes on the Change of Control Payment Date specified in such notice, which date shall be no earlier than 30 days and no later than 90 days from the date such notice is mailed, pursuant to the procedures required by the Indenture and described in such notice. We will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture, we will comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations under the Change of Control provisions of the Indenture by virtue of such compliance. On the Change of Control Payment Date, we will, to the extent lawful: (1) accept for payment all notes or portions thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all notes or portions thereof so tendered; and (3) deliver or cause to be delivered to the Trustee the notes so accepted together with an Officers' Certificate stating the aggregate principal amount of notes or portions thereof being purchased by us. The Paying Agent will promptly mail or wire transfer to each Holder of notes so tendered the Change of Control Payment for such notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided that each such new note will be in a principal amount of $1,000 or an integral multiple thereof. Prior to accepting notes for payment as provided in this "Change of Control" covenant, but in any event within 60 days following a Change of Control, we will either repay all outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of notes required by this covenant. We will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The agreements governing our outstanding Designated Senior Debt and certain of our other outstanding Senior Debt currently prohibit us from purchasing any notes and also provide that certain change of control events (including, without limitation, a Change of Control under the Indenture) with respect to us would constitute a default under these agreements. Any future credit agreements or other agreements relating to Senior Debt to which we become a party may contain similar restrictions and provisions. In the event a Change of Control occurs at a time when we are prohibited from purchasing notes, we could seek the consent of the holders of such Senior Debt to the purchase of notes or could attempt to refinance any such Senior Debt that contain such prohibition. If we do not obtain such a consent or repay such Senior Debt, we will remain prohibited from purchasing notes. In such case, our failure to purchase tendered notes would constitute an 95 Event of Default under the Indenture which would, in turn, constitute a default under such Senior Debt. In any of the foregoing circumstances, the subordination provisions in the Indenture would likely prohibit payments to the Holders of notes. The provisions described above that require us to make a Change of Control Offer following a Change of Control will be applicable regardless of whether any other provisions of the Indenture are applicable. This "Change of Control" covenant will not apply to any Qualifying Services Division Sale. Except as described above with respect to a Change of Control, the Indenture does not contain provisions that permit the Holders of the notes to require that we repurchase or redeem the notes in the event of a takeover, recapitalization or similar transaction. We will not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by us and purchases all notes validly tendered and not withdrawn under such Change of Control Offer or (ii) we effect Legal Defeasance or Covenant Defeasance of the notes under the Indenture prior to the occurrence of such Change of Control. The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the properties or assets of Armor Holdings and its Subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of notes to require us to repurchase such notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of our and our Subsidiaries' assets taken as a whole to another Person or group may be uncertain. Asset Sales We will not, and will not permit any of our Restricted Subsidiaries to, consummate an Asset Sale unless: (1) we (or our Restricted Subsidiary, as the case may be) receive consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (2) such fair market value is determined by our Board of Directors and evidenced by a resolution of our Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and (3) at least 75% of the consideration therefor received by us or our Restricted Subsidiary is in the form of cash, cash equivalents, promissory notes or Replacement Assets or a combination thereof; provided that, for purposes of this provision, each of the following shall be deemed to be cash: (a) our liabilities (as shown on our or our Restricted Subsidiary's most recent balance sheet) or the liabilities of any of our Restricted Subsidiaries (other than contingent 96 liabilities and liabilities that are by their terms pari passu or subordinated to the notes or any Subsidiary Guarantee and liabilities that are owed to us or any of our Affiliates) that are assumed by the transferee of any such assets pursuant to a customary written novation agreement that releases us or such Restricted Subsidiary from further liability; and (b) any securities or other obligations (other than promissory notes) received by us or any of our Restricted Subsidiaries from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by us or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, we may apply an amount equal to such Net Proceeds at our option: (1) to prepay, repay or repurchase Senior Debt and, if (i) the Senior Debt repaid is revolving credit Indebtedness and (ii) at the time of such Asset Sale and at the time of such repayment, we are not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant, correspondingly reduce commitments with respect thereto; or (2) to purchase Replacement Assets or to make a capital expenditure in or that is used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, we may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0 million, we will make an Asset Sale Offer to all Holders of notes, and all holders of other Indebtedness that is pari passu with the notes or any Subsidiary Guarantee containing provisions similar to those set forth in the Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and additional interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, we may use such Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. We will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in 97 connection with each repurchase of notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of the Indenture, we will comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations under the Asset Sale provisions of the Indenture by virtue of such compliance. The agreements governing our outstanding Designated Senior Debt currently prohibit us from purchasing any notes, and also provides that certain asset sale events with respect to us would constitute a default under these agreements. Any future credit agreements or other agreements relating to Senior Debt to which we become a party may contain similar restrictions and provisions. In the event an Asset Sale occurs at a time when we are prohibited from purchasing notes, we could seek the consent of the holders of our Senior Debt to the purchase of notes or could attempt to refinance any such Senior Debt that contain such prohibition. If we do not obtain such a consent or repay such Senior Debt, we will remain prohibited from purchasing notes. In such case, our failure to purchase tendered notes would constitute an Event of Default under the Indenture which would, in turn, constitute a default under such Senior Debt. In any of the foregoing circumstances, the subordination provisions in the Indenture would likely prohibit payments to the Holders of notes. CERTAIN COVENANTS Restricted Payments (A) Armor Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any dividend or make any other payment or distribution on account of its or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Armor Holdings or any of its Restricted Subsidiaries) or to the direct or indirect holders of its or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Armor Holdings or dividends or distributions payable to Armor Holdings or a Wholly Owned Restricted Subsidiary of Armor Holdings); (2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Armor Holdings) any Equity Interests of Armor Holdings or any Subsidiary of Armor Holdings (other than a Wholly Owned Restricted Subsidiary of Armor Holdings) or any direct or indirect parent of Armor Holdings; (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the notes or any Subsidiary Guarantee, except a payment of interest or principal at the Stated Maturity thereof; or 98 (4) make any Restricted Investment (all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (2) Armor Holdings would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant; and (3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Armor Holdings and its Restricted Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (2), (3) and (5) of the next succeeding paragraph (B)), is less than the sum, without duplication, of: (a) 50% of Armor Holdings' Consolidated Net Income for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of its most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds received by Armor Holdings since the date of the Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of Armor Holdings (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of Armor Holdings that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of Armor Holdings); plus (c) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus 99 (d) $10.0 million. (B) So long as no Default or Event of Default has occurred and is continuing at the date of a Restricted Payment or would be caused thereby, the preceding provisions will not prohibit: (1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of the Indenture; (2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of Armor Holdings or any Subsidiary Guarantor or of any Equity Interests of Armor Holdings in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of Armor Holdings) of, Equity Interests of Armor Holdings (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (3) (b) of the preceding paragraph (A); (3) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of Armor Holdings or any Subsidiary Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (4) the payment of any dividend by a Restricted Subsidiary of Armor Holdings to the holders of its common Equity Interests on a pro rata basis; (5) Investments acquired as a capital contribution to, or in exchange for, or out of the net cash proceeds of a substantially concurrent offering of, Capital Stock (other than Disqualified Stock) of Armor Holdings; provided that the amount of any such net cash proceeds that are utilized for any such acquisition or exchange shall be excluded from clause (3)(b) of the preceding paragraph (A); (6) the repurchase of Capital Stock deemed to occur upon the exercise of options or warrants if such Capital Stock represents all or a portion of the exercise price thereof; (7) dividends paid on shares of Disqualified Stock of Armor Holdings issued in accordance with the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant; (8) the repurchase or redemption of shares of Equity Interests (other than Disqualified Stock) of Armor Holdings or any Restricted Subsidiary; provided, however, that the aggregate amount of such repurchases shall not exceed $5.0 million in any calendar year unless the aggregate amount of such 100 repurchases in any prior calendar year was less than $5.0 million in which case (x) the difference, up to an aggregate amount of $5.0 million, may be carried forward and (y) the aggregate amount of such repurchases in any subsequent calendar year may not exceed $5.0 million plus the then remaining balance of such carry forward amount (after giving effect to all prior repurchases utilizing such carry forward amount); provided further, however, that such repurchases shall be excluded from the calculation of the amount of Restricted Payments; or (9) Restricted Payments in an aggregate amount not to exceed $25.0 million. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by Armor Holdings or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount and the fair market value of any assets, securities or other non-cash Restricted Payment that are required to be valued pursuant to this covenant shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an independent accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10.0 million, provided, however that such opinion or appraisal shall not be required for any repurchase or redemption of shares of Equity Interests of Armor Holdings at Current Trading Prices. Not later than the date of making any Restricted Payment, Armor Holdings shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this "Restricted Payments" covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture. Incurrence Of Indebtedness And Issuance Of Preferred Stock Armor Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness (including Acquired Debt), and Armor Holdings will not permit any of its Restricted Subsidiaries to issue any preferred stock; provided, however, that Armor Holdings and any Subsidiary Guarantor may incur Indebtedness or issue preferred stock, if the Fixed Charge Coverage Ratio for its most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 2.00 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or such preferred stock had been issued at the beginning of such four-quarter period. So long as no Default or Event of Default shall have occurred and be continuing as of the date such Indebtedness is incurred (or, as applicable, the date such preferred stock is issued) or would be caused thereby, the first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"): (1) the incurrence by Armor Holdings or any Subsidiary Guarantor of 101 Indebtedness under Credit Facilities in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of Armor Holdings and its Restricted Subsidiaries thereunder) not to exceed $70.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by Armor Holdings or any Restricted Subsidiary to permanently repay any such Indebtedness (and, in the case of any revolving credit Indebtedness, to effect a corresponding commitment reduction thereunder) pursuant to the "Asset Sales" covenant; (2) Existing Indebtedness; (3) the incurrence by Armor Holdings and its Subsidiary Guarantors of Indebtedness represented by the notes and the related Subsidiary Guarantees to be issued on the date of the Indenture and the Exchange Notes and the related Subsidiary Guarantees to be issued pursuant to the Registration Rights Agreement and the Indenture; (4) the incurrence by Armor Holdings or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment (whether through the direct purchase of such assets or the Capital Stock of any Person owning such assets) used in its business or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed $10.0 million at any time outstanding; (5) the incurrence by Armor Holdings or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by the Indenture to be incurred under the first paragraph of this covenant or clauses (2), (3), (4), (5) or (8) of this paragraph; (6) the incurrence by Armor Holdings or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by Armor Holdings or any of its Wholly Owned Restricted Subsidiaries; provided, however, that: (a) if Armor Holdings or any Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the notes, in the case of Armor Holdings, or the Subsidiary Guarantee, in the case of a Subsidiary Guarantor; 102 (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Armor Holdings or its Wholly Owned Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Armor Holdings or its Wholly Owned Restricted Subsidiary, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Armor Holdings or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6); and (c) Indebtedness owed to Armor Holdings or any Subsidiary Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is Armor Holdings or a Subsidiary Guarantor; (7) the incurrence by Armor Holdings or any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (7), not to exceed $20.0 million; (8) (i) Indebtedness of Armor Holdings or any of its Restricted Subsidiaries under agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of Armor Holdings or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business or assets, so long as the principal amount does not exceed the gross proceeds actually received by Armor Holdings or any Restricted Subsidiary in connection with such disposition, and (ii) Indebtedness of Armor Holdings or any of its Restricted Subsidiaries represented by letters of credit for the account of Armor Holdings or such Restricted Subsidiary, as the case may be, issued in the ordinary course of Armor Holdings' business or such Restricted Subsidiary, including, without limitation, in order to provide security for workers' compensation claims or payment obligations in connection with self-insurance or similar requirements in the ordinary course of business and other Indebtedness with respect to worker's compensation claims, self-insurance obligations, performance, surety and similar bonds and completion guarantees provided by Armor Holdings or any of its Restricted Subsidiaries in the ordinary course of business; (9) Indebtedness of Simula, Inc. incurred and outstanding on the date it is acquired by Armor Holdings (other than any Indebtedness incurred (i) to provide all or any portion of the funds utilized to consummate such acquisition or (ii) otherwise in connection with, or in contemplation of, such acquisition); provided, however, that (a) Simula, Inc. is designated a Restricted Subsidiary and executes and delivers to the Trustee a supplemental 103 indenture providing for its Guarantee of the notes on the date on which such acquisition is consummated, and (b) all such Indebtedness is prepaid, repaid, redeemed or repurchased within 90 days of such date of consummation; (10) the incurrence by Armor Holdings or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing, swapping or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding; and (11) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of the first paragraph of this covenant; provided, in each such case, that the amount thereof is included in Armor Holdings' Fixed Charges as accrued. For purposes of determining compliance with this "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (11) of the preceding paragraph, or is entitled to be incurred pursuant to the first paragraph of this covenant, subject to the following sentence, Armor Holdings will be permitted to classify on the date of its incurrence, and from time to time to reclassify all or a portion of, such item of Indebtedness in any manner that complies with this covenant. Indebtedness under the Credit Agreement outstanding on the date on which notes are first issued under the Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt and Armor Holdings will not be permitted to reclassify any Indebtedness incurred pursuant to such clause (1). Notwithstanding any other provision of this "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant, the maximum amount of Indebtedness that may be Incurred pursuant to this "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant will not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies. Limitation On Senior Subordinated Debt Armor Holdings will not incur any Indebtedness that is subordinate or junior in right of payment to any of its Senior Debt unless it is pari passu or subordinate in right of payment to the notes. No Subsidiary Guarantor will incur any Indebtedness that is subordinate or junior in right of payment to the Senior Debt of such Subsidiary Guarantor unless it is pari passu or subordinate in right of payment to such Subsidiary Guarantor's Subsidiary Guarantee. Liens Armor Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly or 104 indirectly, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind securing Indebtedness (other than Permitted Liens) upon any of its or their property or assets, now owned or hereafter acquired, unless all payments due under the Indenture and the notes are secured on an equal and ratable basis with the obligations so secured until such time as such obligations are no longer secured by a Lien. Dividend And Other Payment Restrictions Affecting Restricted Subsidiaries Armor Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions to Armor Holdings or any of its Restricted Subsidiaries with respect to its Capital Stock or any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Armor Holdings or any of its Restricted Subsidiaries; (2) make loans or advances to Armor Holdings or any of its Restricted Subsidiaries; or (3) transfer any of its properties or assets to Armor Holdings or any of its Restricted Subsidiaries. However, the preceding restrictions will not apply to encumbrances or restrictions existing under, by reason of or with respect to: (1) the Credit Agreement, Existing Indebtedness or any other agreements in effect on the date of the Indenture and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacement or refinancings are not materially more restrictive, taken as a whole, than those in effect on the date of the Indenture; (2) the Indenture, the notes and the Subsidiary Guarantees; (3) applicable law, rule or regulation; (4) any Person, or the property or assets of such Person, acquired by Armor Holdings or any of its Restricted Subsidiaries, existing at the time of such acquisition and not incurred in connection with or in contemplation of such acquisition, which encumbrance or restriction is not applicable to any Person or the properties or assets of any Person, other than the Person, or the property or assets of such Person, so acquired and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances and 105 restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, than those in effect on the date of the acquisition; (5) in the case of clause (3) of the first paragraph of this covenant: (a) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or similar contract, (b) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of Armor Holdings or any Restricted Subsidiary not otherwise prohibited by the Indenture, or (c) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of Armor Holdings or any Restricted Subsidiary in any manner material to Armor Holdings or any Restricted Subsidiary; (6) any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, a Restricted Subsidiary pending closing of such sale or disposition; (7) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; (8) contained in the terms of any Indebtedness permitted under the Indenture or any agreement pursuant to which such Indebtedness was issued if: (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (b) the encumbrance or restriction is not materially more disadvantageous to the Holders of the notes than is customary in comparable financings (as determined by Armor Holdings in good faith), and (c) Armor Holdings determines in good faith that any such encumbrance or restriction will not materially affect its ability to make principal or interest payments on the notes. 106 Merger, Consolidation Or Sale Of All Or Substantially All Assets Armor Holdings will not: (1) consolidate or merge with or into another Person (whether or not we are the surviving corporation) or (2) directly or indirectly, sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of its properties and assets and its Subsidiaries taken as a whole, in one or more related transactions, to another Person or Persons, unless: (1) either: (a) Armor Holdings is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than Armor Holdings) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made (i) is a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia and (ii) expressly assumes, by a supplemental indenture executed and delivered to the Trustee, in form satisfactory to the Trustee, all of Armor Holdings' obligations under the notes, the Indenture and the Registration Rights Agreement; (2) immediately after giving effect to such transaction, no Default or Event of Default exists; (3) immediately after giving effect to such transaction on a pro forma basis, Armor Holdings or the Person formed by or surviving any such consolidation or merger (if other than Armor Holdings), or to which such sale, assignment, transfer, conveyance or other disposition shall have been made: (a) will have Consolidated Net Worth immediately after the transaction equal to or greater than Armor Holdings' Consolidated Net Worth immediately preceding the transaction; and (b) will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described above under the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant; (4) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the Person with which Armor Holdings has entered into a transaction under this "Consolidation, Merger or Sale of Assets" covenant, shall have by supplemental indenture to its Subsidiary Guarantee confirmed that its Subsidiary Guarantee shall apply to Armor Holdings' obligations or the Surviving Person in accordance with the notes and the Indenture and its obligations under the Registration Rights Agreement shall continue to be in effect; and (5) Armor Holdings shall have delivered to the Trustee an Officers' Certificate 107 and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, conveyance or lease and such supplemental indenture (if any) comply with the Indenture. This "Merger, Consolidation or Sale of All or Substantially All Assets" covenant will not apply to any Qualifying Services Division Sale or any merger, consolidation or sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Armor Holdings and any of its Subsidiary Guarantors. For purposes of this covenant, the sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties and assets of one or more of Armor Holdings' Subsidiaries, which properties and assets, if held by Armor Holdings instead of such Subsidiaries, would constitute all or substantially all of its properties and assets on a consolidated basis, shall be deemed to be the transfer of all or substantially all of Armor Holdings' properties and assets. Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve "all or substantially all" of the property or assets of a Person. Transactions With Affiliates Armor Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its or their properties or assets to, or purchase any property or assets from, or enter into, make, amend, renew or extend any transaction, contract, agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any Affiliate (each, an "Affiliate Transaction"), unless: (1) such Affiliate Transaction is on terms that are no less favorable to Armor Holdings or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by Armor Holdings or such Restricted Subsidiary at the time of such transaction in arm's-length dealings with a Person that is not an Affiliate of Armor Holdings; and (2) Armor Holdings delivers to the Trustee: (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $2.5 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this covenant and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors; and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an 108 opinion as to the fairness to Armor Holdings or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an independent accounting, appraisal or investment banking firm of national standing. The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph: (1) transactions between or among Armor Holdings and/or its Restricted Subsidiaries; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans and other reasonable and customary fees, compensation, benefits and indemnities paid or entered into by Armor Holdings or its Restricted Subsidiaries in the ordinary course of business consistent with past practices to or with its officers, directors, employees or consultants and its Restricted Subsidiaries; (3) Restricted Payments that are permitted by the provisions of the Indenture described above under the "Restricted Payments" covenant; and (4) any sale of Armor Holdings' Equity Interests (other than Disqualified Stock). Designation Of Restricted And Unrestricted Subsidiaries Armor Holdings' Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary; provided that: (1) any Guarantee by Armor Holdings or any Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by Armor Holdings or such Restricted Subsidiary (or both, if applicable) at the time of such designation, and such incurrence of Indebtedness would be permitted under the covenant described above under the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant; (2) the aggregate fair market value of all outstanding Investments owned by Armor Holdings and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by Armor Holdings or any Restricted Subsidiary of any Indebtedness of such Subsidiary) will be deemed to be a Restricted Investment made as of the time of such designation and that such Investment would be permitted under the covenant described above under the "Restricted Payments" covenant; (3) such Subsidiary does not own any Equity Interests of, or hold any Liens on any property of, Armor Holdings or any Restricted Subsidiary; (4) the Subsidiary being so designated: 109 (a) is not party to any agreement, contract, arrangement or understanding with Armor Holdings or any Restricted Subsidiary of Armor Holdings unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to Armor Holdings or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of Armor Holdings; and (b) is a Person with respect to which neither Armor Holdings nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results; and (5) no Default or Event of Default would be in existence following such designation. Any designation of a Restricted Subsidiary of Armor Holdings as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by the Indenture. The Board of Directors of Armor Holdings may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that: (1) such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Armor Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if such Indebtedness is permitted under the covenant described under the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; (2) all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such designation and such Investments shall only be permitted if such Investments would be permitted under the covenant described above under the "Restricted Payments" covenant; (3) all Liens of such Unrestricted Subsidiary existing at the time of such designation would be permitted under the "Liens" covenant; and (4) no Default or Event of Default would be in existence following such designation. Sale And Leaseback Transactions Armor Holdings will not, and will not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction; provided that Armor Holdings or any Restricted Subsidiary may enter into a sale and leaseback transaction if: 110 (1) Armor Holdings or that Restricted Subsidiary, as applicable, could have incurred Indebtedness in an amount equal to the Attributable Debt relating to such sale and leaseback transaction under the Fixed Charge Coverage Ratio test in the first paragraph of the covenant described above under the "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant; (2) the gross cash proceeds of that sale and leaseback transaction are at least equal to the fair market value, as determined in good faith by the Board of Directors of Armor Holdings and set forth in an Officers' Certificate delivered to the Trustee, of the property that is the subject of that sale and leaseback transaction; and (3) the transfer of assets in that sale and leaseback transaction is permitted by, and Armor Holdings applies the proceeds of such transaction in compliance with, the covenant described above under the "Asset Sales" covenant. LIMITATION ON ISSUANCE AND SALE OF EQUITY INTERESTS OF RESTRICTED SUBSIDIARIES Armor Holdings will not transfer, convey, sell, lease or otherwise dispose of, and will not permit any of its Restricted Subsidiaries to issue, transfer, convey, sell, lease or otherwise dispose of, any Equity Interests in any Restricted Subsidiary of Armor Holdings to any Person (other than Armor Holdings or a Wholly Owned Restricted Subsidiary of Armor Holdings or, if necessary, shares of its Capital Stock constituting directors' qualifying shares or issuances of shares of Capital Stock of foreign Restricted Subsidiaries to foreign nationals, to the extent required by applicable law), except: (1) if, immediately after giving effect to such issuance, transfer, conveyance, sale, lease or other disposition, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary and any Investment in such Person remaining after giving effect to such issuance or sale would have been permitted to be made under the "Restricted Payments" covenant if made on the date of such issuance or sale; and (2) Armor Holdings or such Restricted Subsidiary complies with the "Asset Sale" covenant. Limitations On Issuances Of Guarantees By Restricted Subsidiaries Armor Holdings will not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee or pledge any assets to secure the payment of any other Indebtedness of Armor Holdings, unless such Restricted Subsidiary is a Subsidiary Guarantor or simultaneously executes and delivers a supplemental indenture providing for the Guarantee of the payment of the notes by such Restricted Subsidiary, which Subsidiary Guarantee shall be senior to or pari passu with such Subsidiary's Guarantee of or pledge to secure such other Indebtedness unless such other Indebtedness is Senior Debt, in which case the Subsidiary Guarantee of the notes may be subordinated to the Guarantee of such Senior Debt to the same extent as the notes are subordinated to such Senior Debt. 111 A Subsidiary Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person), another Person, other than Armor Holdings or another Subsidiary Guarantor, unless: (1) immediately after giving effect to that transaction, no Default or Event of Default exists; and (2) either: (a) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia and assumes all the obligations of such Subsidiary Guarantor under the Indenture, its Subsidiary Guarantee and the Registration Rights Agreement pursuant to a supplemental indenture satisfactory to the Trustee; or (b) such sale or other disposition complies with the "Asset Sale" covenant, including the application of the Net Proceeds therefrom. The Subsidiary Guarantee of a Subsidiary Guarantor will be released: (1) in connection with any sale or other disposition of all of the capital stock of a Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) an Affiliate of Armor Holdings, if the sale or other disposition complies with the "Asset Sale" covenant; (2) in connection with the release or discharge of the Guarantee which resulted in the creation of such Subsidiary Guarantee pursuant to this covenant, except a discharge or release by, or as a result of, a payment under such Guarantee; (3) if Armor Holdings properly designates any Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary; or (4) in connection with the liquidation, dissolution or winding up of a Subsidiary Guarantor. In addition, each Discontinued Domestic Subsidiary on the date the Notes are originally issued which thereafter becomes a Subsidiary Guarantor will be released from its Subsidiary Guarantee upon the sale, transfer or other disposition of all or substantially all of its assets, unless and until such Subsidiary Guarantor thereafter becomes part of the continuing operations of Armor Holdings on a consolidated basis. Business Activities Armor Holdings will not, and will not permit any Restricted Subsidiary to, engage in any 112 business other than Permitted Business, except to such extent as would not be material to Armor Holdings and its Restricted Subsidiaries taken as a whole. Payments For Consent Armor Holdings will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the notes unless such consideration is offered to all Holders of the notes and is paid to all Holders of the notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Reports Whether or not required by the Commission, so long as any notes are outstanding, Armor Holdings will furnish to the Holders of notes, within the time periods specified in the Commission's rules and regulations: (1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if Armor Holdings were required to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by Armor Holdings' certified independent accountants; and (2) all current reports that would be required to be filed with the Commission on Form 8-K if Armor Holdings were required to file such reports. In addition, whether or not required by the Commission, Armor Holdings will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission's rules and regulations (unless the Commission will not accept such a filing) and make such information available to prospective investors upon request. In addition, Armor Holdings and the Subsidiary Guarantors have agreed that, for so long as any notes remain outstanding, they will furnish to the Holders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. EVENTS OF DEFAULT AND REMEDIES Each of the following is an Event of Default: (1) default for 30 days in the payment when due of interest (including any additional interest) on the notes whether or not prohibited by the subordination provisions of the Indenture; (2) default in payment when due (whether at maturity, upon acceleration, redemption 113 or otherwise, including the failure to repurchase notes tendered pursuant to a Change of Control Offer or an Asset Sale Offer on the date specified for such payment in the applicable offer to purchase) of the principal of, or premium, if any, on the notes, whether or not prohibited by the subordination provisions of the Indenture; (3) failure (other than a default described in clause (2) above) by Armor Holdings or any of its Restricted Subsidiaries to comply with the provisions described under the captions "--Repurchase at the Option of Holders--Change of Control," "--Repurchase at the Option of Holders--Asset Sales" or the "Merger, Consolidation or Sale of All or Substantially All Assets" covenant for 45 days after written notice by the Trustee or Holders representing 25% or more of the aggregate principal amount of notes outstanding to comply with such provisions; (4) failure by Armor Holdings or any of its Restricted Subsidiaries for 60 days after written notice by the Trustee or Holders representing 25% or more of the aggregate principal amount of notes outstanding to comply with any of the other agreements in the Indenture; (5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Armor Holdings or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by Armor Holdings or any of its Restricted Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created after the date of the Indenture, if that default: (a) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness at final maturity thereof; or (b) results in the acceleration of such Indebtedness prior to its final maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a similar default aggregates $5.0 million or more unless the obligation of Armor Holdings or such Restricted Subsidiary to pay such Indebtedness is being disputed in good faith through proper proceedings and such proceedings have not been determined against Armor Holdings or such Restricted Subsidiary; (6) failure by Armor Holdings or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $5.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; (7) except as permitted by the Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee; and (8) certain events of bankruptcy or insolvency with respect to Armor Holdings or any 114 Significant Subsidiary of Armor Holdings (or any Subsidiaries that together would constitute a Significant Subsidiary). In the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to Armor Holdings or any Significant Subsidiary of Armor Holdings (or any Subsidiaries that together would constitute a Significant Subsidiary), all outstanding notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding notes may declare all the notes to be due and payable by notice in writing to Armor Holdings specifying the respective Event of Default in accordance with the provisions of the Indenture; provided, however, that so long as any Obligations under any Credit Facilities shall be outstanding, the acceleration shall not be effective until the earlier of (1) an acceleration of Indebtedness under such Credit Facilities or (2) five business days after receipt by Armor Holdings and the agent under such Credit Facilities of written notice of such declaration of acceleration of the notes. Holders of the notes may not enforce the Indenture or the notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the notes notice of any Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or additional interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the notes waive any existing Default or Event of Default and its consequences under the Indenture, or rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Defaults or Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived, in each case, except a continuing Default or Event of Default in the payment of interest or additional interest, if any, on, or the principal of, the notes. The Holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of notes. A Holder may not pursue any remedy with respect to the Indenture or the notes unless: (1) the Holder gives the Trustee written notice of a continuing Event of Default; (2) the Holders of at least 25% in aggregate principal amount of outstanding notes make a written request to the Trustee to pursue the remedy; (3) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; 115 (4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (5) during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding notes do not give the Trustee a direction that is inconsistent with the request. However, such limitations do not apply to the right of any Holder of a note to receive payment of the principal of, premium or additional interest, if any, or interest on, such note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the notes, which right shall not be impaired or affected without the consent of the Holder. In the case of any Event of Default occurring by reason of any willful action or inaction taken or not taken by or on behalf of Armor Holdings with the intention of avoiding payment of the premium that Armor Holdings would have had to pay if Armor Holdings then had elected to redeem the notes pursuant to the optional redemption provisions of the Indenture, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the notes. If an Event of Default occurs during any time that the notes are outstanding, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of Armor Holdings with the intention of avoiding the prohibition on redemption of the notes, then the premium specified in the Indenture shall also become immediately due and payable to the extent permitted by law upon the acceleration of the notes. Armor Holdings is required to deliver to the Trustee annually within 90 days after the end of each fiscal year a statement regarding compliance with the Indenture. Upon becoming aware of any Default or Event of Default, Armor Holdings is required to deliver to the Trustee a statement specifying such Default or Event of Default. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS No director, officer, employee, incorporator or stockholder of Armor Holdings or any Subsidiary Guarantor, as such, shall have any liability for any obligations of Armor Holdings or the Subsidiary Guarantors under the notes, the Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. The waiver may not be effective to waive liabilities under the federal securities laws. LEGAL DEFEASANCE AND COVENANT DEFEASANCE Armor Holdings may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding notes and all obligations of the Subsidiary Guarantors discharged with respect to their Subsidiary Guarantees ("Legal Defeasance") except for: (1) the rights of Holders of outstanding notes to receive payments in respect of the 116 principal of, or interest or premium and additional interest, if any, on such notes when such payments are due from the trust referred to below; (2) Armor Holdings obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust; (3) the rights, powers, trusts, duties and immunities of the Trustee, and Armor Holdings' and the Subsidiary Guarantor's obligations in connection therewith; and (4) the Legal Defeasance provisions of the Indenture. In addition, Armor Holdings may, at its option and at any time, elect to have the obligations of Armor Holdings and the Subsidiary Guarantors released with respect to certain covenants that are described in the Indenture ("Covenant Defeasance") and thereafter any omission to comply with those covenants shall not constitute a Default or Event of Default with respect to the notes. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership and insolvency events) described under "Events of Default" will no longer constitute an Event of Default with respect to the notes. In order to exercise either Legal Defeasance or Covenant Defeasance: (1) Armor Holdings must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and premium and additional interest, if any, on the outstanding notes on the stated maturity or on the applicable redemption date, as the case may be, and Armor Holdings must specify whether the notes are being defeased to maturity or to a particular redemption date; (2) in the case of Legal Defeasance, Armor Holdings shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) Armor Holdings has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of the Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) in the case of Covenant Defeasance, Armor Holdings shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax 117 on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (4) no Default or Event of Default shall have occurred and be continuing either: (a) on the date of such deposit; or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 123rd day after the date of deposit; (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument to which Armor Holdings or any of its Subsidiaries is a party or by which Armor Holdings or any of its Subsidiaries is bound; (6) Armor Holdings must have delivered to the Trustee an Opinion of Counsel to the effect that, (1) assuming no intervening bankruptcy of Armor Holdings or any Subsidiary Guarantor between the date of deposit and the 123rd day following the deposit and assuming that no Holder is an "insider" of Armor Holdings under applicable bankruptcy law, after the 123rd day following the deposit, the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or any applicable state bankruptcy, insolvency, reorganization or similar state law affecting creditors and (2) the creation of the defeasance trust does not violate the Investment Company Act of 1940; (7) Armor Holdings must deliver to the Trustee an Officers' Certificate stating that the deposit was not made by Armor Holdings with the intent of preferring the Holders of notes over the other creditors of Armor Holdings with the intent of defeating, hindering, delaying or defrauding creditors of Armor Holdings or others; (8) if the notes are to be redeemed prior to their stated maturity, Armor Holdings must deliver to the Trustee irrevocable instructions to redeem all of the notes on the specified redemption date; and (9) Armor Holdings must deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with. The Credit Agreement will contain provisions that prohibit or otherwise limit Armor Holdings from exercising any such option. AMENDMENT, SUPPLEMENT AND WAIVER Except as provided in the next two succeeding paragraphs, the Indenture or the notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, notes), and any existing default or compliance with any provision of the Indenture or the notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding notes (including, without limitation, consents 118 obtained in connection with a purchase of, or tender offer or exchange offer for, notes). Without the consent of each Holder affected, an amendment or waiver may not (with respect to any notes held by a non-consenting Holder): (1) reduce the principal amount of notes whose Holders must consent to an amendment, supplement or waiver; (2) reduce the principal of or change the fixed maturity of any note or alter the provisions, or waive any payment, with respect to the redemption of the notes; (3) reduce the rate of or change the time for payment of interest on any Note; (4) waive a Default or Event of Default in the payment of principal of, or interest or premium or additional interest, if any, on the notes (except a rescission of acceleration of the notes by the Holders of at least a majority in aggregate principal amount of the notes and a waiver of the payment default that resulted from such acceleration); (5) make any note payable in money other than U.S. dollars; (6) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of notes to receive payments of principal of, or interest or premium or additional interest, if any, on the notes; (7) release any Subsidiary Guarantor from any of its obligations under its Subsidiary Guarantee or the Indenture, except in accordance with the terms of the Indenture; (8) impair the right to institute suit for the enforcement of any payment on or with respect to the notes or the Subsidiary Guarantees; (9) amend, change or modify the obligation of Armor Holdings to make and consummate an Asset Sale Offer with respect to any Asset Sale in accordance with the "Repurchase at the Option of Holders--Asset Sales" covenant or the obligation of Armor Holdings to make and consummate a Change of Control Offer in the event of a Change of Control in accordance with the "Repurchase at the Option of Holders--Change of Control" covenant, including, in each case, amending, changing or modifying any definition relating thereto; (10) except as otherwise permitted under the "Merger, Consolidation and Sale of All or Substantially All Assets" covenant and the "Limitation on Issuance of Guarantees by Restricted Subsidiaries" covenant, consent to the assignment or transfer by Armor Holdings or any Subsidiary Guarantor of any of their rights or obligations under the Indenture; (11) amend or modify any of the provisions of the Indenture or the related definitions affecting the subordination or ranking of the notes or any Subsidiary Guarantee in any manner adverse to the holders of the notes or any Subsidiary Guarantee; or 119 (12) make any change in the preceding amendment and waiver provisions. Notwithstanding the preceding, without the consent of any Holder of notes, Armor Holdings and the Trustee may amend or supplement the Indenture or the notes: (1) to cure any ambiguity, defect or inconsistency; (2) to provide for uncertificated notes in addition to or in place of certificated notes; (3) to provide for the assumption of Armor Holdings' or any Subsidiary Guarantor's obligations to Holders of notes in the case of a merger or consolidation or sale of all or substantially all of Armor Holdings' or such Subsidiary Guarantor's assets; (4) to make any change that would provide any additional rights or benefits to the Holders of notes or that does not adversely affect the legal rights under the Indenture of any such Holder; (5) to comply with requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act; (6) comply with the provision described under the "Limitations on Issuances of Guarantees by Restricted Subsidiaries" covenant; (7) evidence and provide for the acceptance of appointment by a successor Trustee; (8) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date hereof; or (9) to allow any Subsidiary of Armor Holdings or any of its Subsidiaries to execute a supplemental indenture to become a Subsidiary Guarantor or to execute a Subsidiary Guarantee with respect to the notes. SATISFACTION AND DISCHARGE The Indenture will be discharged and will cease to be of further effect as to all notes issued thereunder, when: (1) either: (a) all notes that have been authenticated (except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has theretofore been deposited in trust and thereafter repaid to Armor Holdings) have been delivered to the Trustee for cancellation; or (b) all notes that have not been delivered to the Trustee for cancellation have 120 become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and Armor Holdings or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the notes not delivered to the Trustee for cancellation for principal, premium and additional interest, if any, and accrued interest to the date of maturity or redemption; (2) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which Armor Holdings or any Subsidiary Guarantor is a party or by which Armor Holdings or any Subsidiary Guarantor is bound; (3) Armor Holdings or any Subsidiary Guarantor has paid or caused to be paid all sums payable by it under the Indenture; and (4) Armor Holdings has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money toward the payment of the notes at maturity or the redemption date, as the case may be. In addition, Armor Holdings must deliver an Officers' Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. CONCERNING THE TRUSTEE If the Trustee becomes a creditor of Armor Holdings or any Subsidiary Guarantor, the Indenture limits its right to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the Commission for permission to continue or resign. The Indenture provides that in case an Event of Default shall occur and be continuing, the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any Holder of notes, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense. BOOK-ENTRY, DELIVERY AND FORM The notes are being offered and sold to qualified institutional buyers in reliance on Rule 144A ("Rule 144A Notes"). Notes also may be offered and sold in offshore transactions in reliance 121 on Regulation S ("Regulation S Notes"). Except as set forth below, notes will be issued in registered, global form in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. Notes will be issued at the closing of this offering only against payment in immediately available funds. Rule 144A Notes initially will be represented by one or more notes in registered, global form without interest coupons (collectively, the "Rule 144A Global Notes"). Regulation S Notes initially will be represented by one or more Notes in registered, global form without interest coupons (collectively, the "Regulation S Global Notes" and, together with the Rule 144A Global Notes, the "Global Notes"). The Global Notes will be deposited upon issuance with the Trustee as custodian for The Depository Trust Company ("DTC"), in New York, New York, and registered in the name of DTC or its nominee, in each case for credit to an account of a direct or indirect participant in DTC as described below. Through and including the 40th day after the later of the commencement of this offering and the closing of this offering (such period through and including such 40th day, the "Restricted Period"), beneficial interests in the Regulation S Global Notes must be held solely through the Euroclear Bank S.A./N.A., as operator of the Euroclear System ("Euroclear") and Clearstream Banking, S.A. ("Clearstream") (as indirect participants in DTC), unless transferred to a person that takes delivery through a Rule 144A Global Note in accordance with the certification requirements described below. Beneficial interests in the Rule 144A Global Notes may not be exchanged for beneficial interests in the Regulation S Global Notes at any time except in the limited circumstances described below. See "--Exchanges between Regulation S Notes and Rule 144A Notes." Except as set forth below, the Global Notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes may not be exchanged for notes in certificated form except in the limited circumstances described below. See "--Exchange of Book-Entry Notes for Certificated Notes." Except in the limited circumstances described below, owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of notes in certificated form. Rule 144A Notes (including beneficial interests in the Rule 144A Global Notes) will be subject to certain restrictions on transfer and will bear a restrictive legend. Regulation S Notes will also bear a restrictive legend. In addition, transfers of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of Euroclear and Clearstream), which may change from time to time. Depositary Procedures The following description of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. Armor Holdings takes no responsibility for these operations and procedures and urges investors to contact the system or their participants directly to discuss these matters. DTC has advised Armor Holdings that DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the "Participants") and to facilitate 122 the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including Wachovia Capital Markets, LLC), banks, trust companies, clearing corporations and certain other organizations. Access to DTC's system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the "Indirect Participants"). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants. DTC has also advised Armor Holdings that, pursuant to procedures established by it: (1) upon deposit of the Global Notes, DTC will credit the accounts of Participants designated by the Wachovia Capital Markets with portions of the principal amount of the Global Notes; and (2) ownership of these interests in the Global Notes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interest in the Global Notes). Investors in the Rule 144A Global Notes who are Participants in DTC's system may hold their interests therein directly through DTC. Investors in the Rule 144A Global Notes who are not Participants may hold their interests therein indirectly through organizations (including Euroclear and Clearstream) which are Participants in such system. Investors in the Regulation S Global Notes must initially hold their interests therein through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations that are participants in such systems. After the expiration of the Restricted Period (but not earlier), investors may also hold interests in the Regulation S Global Notes through Participants in the DTC system other than Euroclear and Clearstream. Euroclear and Clearstream will hold interests in the Regulation S Global Notes on behalf of their participants through customers' securities accounts in their respective names on the books of their respective depositories, which are Morgan Guaranty Trust Company of New York, Brussels office, as operator of Euroclear, and Citibank, N.A., as operator of Clearstream. All interests in a Global Note, including those held through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream may also be subject to the procedures and requirements of such systems. The laws of some states require that certain Persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such Persons will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a Person having beneficial interests in a Global Note to pledge such interests to Persons that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests. EXCEPT AS DESCRIBED BELOW, OWNERS OF INTEREST IN THE GLOBAL NOTES WILL NOT HAVE NOTES 123 REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS OR "HOLDERS" THEREOF UNDER THE INDENTURE FOR ANY PURPOSE. Payments in respect of the principal of, and interest and premium and additional interest, if any, on a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered Holder under the Indenture. Under the terms of the Indenture, Armor Holdings and the Trustee will treat the Persons in whose names the notes, including the Global Notes, are registered as the owners thereof for the purpose of receiving payments and for all other purposes. Consequently, neither Armor Holdings, the Trustee nor any agent of Armor Holdings or the Trustee has or will have any responsibility or liability for: (1) any aspect of DTC's records or any Participant's or Indirect Participant's records relating to or payments made on account of beneficial ownership interest in the Global Notes or for maintaining, supervising or reviewing any of DTC's records or any Participant's or Indirect Participant's records relating to the beneficial ownership interests in the Global Notes; or (2) any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants. DTC has advised Armor Holdings that its current practice, upon receipt of any payment in respect of securities such as the notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the Trustee or Armor Holdings. Neither Armor Holdings nor the Trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the notes, and Armor Holdings and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes. Subject to certain transfer restrictions, transfers between Participants in DTC will be effected in accordance with DTC's procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures. Subject to compliance with the transfer restrictions applicable to the notes, cross-market transfers between the Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC's rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the 124 case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositaries for Euroclear or Clearstream. DTC has advised Armor Holdings that it will take any action permitted to be taken by a Holder of notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given such direction. However, if there is an Event of Default under the notes, DTC reserves the right to exchange the Global Notes for legended notes in certificated form, and to distribute such notes to its Participants. Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the Rule 144A Global Notes and the Regulation S Global Notes among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such procedures at any time. Neither Armor Holdings nor the Trustee nor any of their respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations. Exchange Of Global Notes For Certificated Notes A Global Note is exchangeable for definitive notes in registered certificated form ("Certificated Notes") if: (1) DTC (a) notifies Armor Holdings that it is unwilling or unable to continue as depositary for the Global Notes and Armor Holdings fails to appoint a successor depositary or (b) has ceased to be a clearing agency registered under the Exchange Act; (2) Armor Holdings, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Certificated Notes; or (3) there shall have occurred and be continuing a Default or Event of Default with respect to the notes. In addition, beneficial interests in a Global Note may be exchanged for Certificated Notes upon prior written notice given to the Trustee by or on behalf of DTC in accordance with the Indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures) and will bear the applicable restrictive legend, unless such legend is not required by applicable law. 125 Exchange Of Certificated Notes For Global Notes Certificated Notes may not be exchanged for beneficial interests in any Global Note unless the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer will comply with the appropriate transfer restrictions applicable to such notes. Exchanges Between Regulation S Notes And Rule 144A Notes Prior to the expiration of the Restricted Period, beneficial interests in the Regulation S Global Note may be exchanged for beneficial interests in the Rule 144A Global Note only if: (1) such exchange occurs in connection with a transfer of the notes pursuant to Rule 144A; and (2) the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that the notes are being transferred to a Person: (a) that the transferor reasonably believes to be a qualified institutional buyer within the meaning of Rule 144A; (b) purchasing for its own account or the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A; and (c) in accordance with all applicable securities laws of the states of the United States and other jurisdictions. Beneficial interests in a Rule 144A Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if such transfer occurs prior to the expiration of the Restricted Period, the interest transferred will be held immediately thereafter through Euroclear or Clearstream. Transfers involving exchanges of beneficial interests between the Regulation S Global Notes and the Rule 144A Global Notes will be effected in DTC by means of an instruction originated by the Trustee through the DTC Deposit/Withdraw at Custodian system. Accordingly, in connection with any such transfer, appropriate adjustments will be made to reject a decrease in the principal amount of the Regulation S Global Note and a corresponding increase in the principal amount of the Rule 144A Global Note or vice versa, as applicable. Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in the other Global Note will, upon transfer, cease to be an interest in such Global Note and will become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interest in such other Global Note for so long as it remains such an interest. The policies and practices of DTC may prohibit transfers of beneficial interests in 126 the Regulation S Global Note prior to the expiration of the Restricted Period. SAME DAY SETTLEMENT AND PAYMENT Armor Holdings will make payments in respect of the notes represented by the Global Notes (including principal, premium, if any, interest and additional interest, if any) by wire transfer of immediately available funds to the accounts specified by the Global Note Holder. Armor Holdings will make all payments of principal, interest and premium and additional interest, if any, with respect to Certificated Notes by wire transfer of immediately available funds to the accounts specified by the Holders thereof or, if no such account is specified, by mailing a check to each such Holder's registered address. The notes represented by the Global Notes are expected to be eligible to trade in the PORTAL (Trade Mark) Market and to trade in DTC's Same-Day Funds Settlement System, and any permitted secondary market trading activity in such Notes will, therefore, be required by DTC to be settled in immediately available funds. Armor Holdings expects that secondary trading in any Certificated Notes will also be settled in immediately available funds. Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised Armor Holdings that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC's settlement date. CERTAIN DEFINITIONS Set forth below are certain defined terms used in the Indenture. Reference is made to the Indenture for a full disclosure of all such terms, as well as any other capitalized terms used herein for which no definition is provided. "Acquired Debt" means, with respect to any specified Person: (1) Indebtedness of any other Person existing at the time such other Person is merged with or into, or becomes a Subsidiary of, such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. "Affiliate" of any specified Person means (1) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person or (2) any executive officer or director of such specified Person. For purposes of this definition, "control," as used with respect to any Person, shall mean the possession, directly or indirectly, of the 127 power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control. For purposes of this definition, the terms "controlling," "controlled by" and "under common control with" shall have correlative meanings. "Asset Sale" means: (1) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Armor Holdings and its Restricted Subsidiaries taken as a whole will be governed by the provisions of the Indenture described above under the caption "--Repurchase at the Option of Holders --Change of Control" and/or the provisions described above under the caption "--Certain Covenants-- Merger, Consolidation or Sale of All or Substantially All Assets" and not by the provisions of the covenant described above under the caption "--Repurchases at the Option of Holders--Asset Sales;" and (2) the issuance of Equity Interests by any of Armor Holdings' Restricted Subsidiaries or the sale by Armor Holdings or any Restricted Subsidiary of Equity Interests in any of its Subsidiaries. Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales: (1) any Qualifying Services Division Sale, provided that Armor Holdings or any Restricted Subsidiary receives consideration at the time of such Qualifying Services Division Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and such fair market value is determined by Armor Holdings' Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; (2) any Qualifying USDS Sale, provided that Armor Holdings or any Restricted Subsidiary receives consideration at the time of such Qualifying USDS Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and such fair market value is determined by Armor Holdings' Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; (3) any single transaction or series of related transactions that involves assets having a fair market value of less than $5.0 million; (4) a transfer of assets between or among Armor Holdings and its Restricted Subsidiaries; (5) an issuance of Equity Interests by a Restricted Subsidiary to Armor Holdings or to another Restricted Subsidiary; 128 (6) the sale or lease of equipment, inventory, accounts receivable or other assets in the ordinary course of business; (7) the sale or other disposition of Cash Equivalents; (8) a Restricted Payment that is permitted by the covenant described above under the "Restricted Payments" covenant; and (9) any sale or disposition of any property or equipment that has become damaged, worn out, obsolete or otherwise not useful or no longer used by Armor Holdings in connection with the business of Armor Holdings or its Restricted Subsidiaries. "Attributable Debt" in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP. "Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial ownership of all securities that such "person" has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning. "Board of Directors" means: (1) with respect to a corporation, the board of directors of the corporation; (2) with respect to a partnership, the board of directors of the general partner of the partnership; and (3) with respect to any other Person, the board or committee of such Person serving a similar function. "Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. "Capital Stock" means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, 129 participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Cash Equivalents" means: (1) United States dollars; (2) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than six months from the date of acquisition; (3) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers' acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (4) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above; (5) commercial paper having the highest rating obtainable from Moody's Investors Service, Inc. or Standard & Poor's, a division of the McGraw-Hill Companies, Inc. and in each case maturing within six months after the date of acquisition; and (6) money market funds, at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition. "Change of Control" means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of Armor Holdings and its Restricted Subsidiaries, taken as a whole, to any "person" (as that term is used in Section 13(d)(3) of the Exchange Act); (2) the adoption of a plan relating to the liquidation or dissolution of Armor Holdings; (3) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of 130 the Exchange Act) becomes the ultimate Beneficial Owner, directly or indirectly, of 50% or more of the voting power of the Voting Stock of Armor Holdings; (4) the first day on which a majority of the members of the Board of Directors of Armor Holdings are not Continuing Directors; or (5) Armor Holdings consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into Armor Holdings, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of Armor Holdings or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where (A) the Voting Stock of Armor Holdings outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance) and (B) immediately after such transaction, no "person" or "group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the beneficial owner (as defined above) of 50% or more of the voting power of all classes of Voting Stock of Armor Holdings. "Consolidated Cash Flow" means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus: (1) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus (2) Fixed Charges to the extent deducted in computing such Consolidated Net Income; plus (3) depreciation, amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; minus (4) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue consistent with past practice, in each case, on a consolidated basis and determined in accordance with GAAP. Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of Armor Holdings shall be added to Consolidated Net Income to compute Consolidated Cash Flow of Armor Holdings only to the extent that a corresponding amount would be permitted at the date of determination to be paid as a dividend to Armor Holdings by such Restricted Subsidiary without 131 prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders. "Consolidated Net Income" means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that: (1) the Consolidated Net Income of Armor Holdings and its Subsidiaries for any period shall be deemed to exclude any extraordinary integration costs incurred in connection with acquisitions or divestitures and other non-recurring charges or costs to the extent such charges or costs were included in the computation of the Consolidated EBITDA (as defined in the Credit Agreement) of Armor Holdings for such period for the purposes of the Credit Agreement; (2) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Wholly Owned Restricted Subsidiary thereof; (3) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its equityholders; (4) the Net Income of any Person acquired during the specified period for any period prior to the date of such acquisition shall be excluded; (5) the cumulative effect of a change in accounting principles shall be excluded; and (6) the Net Income (but not loss) of any Unrestricted Subsidiary shall be excluded, whether or not distributed to the specified Person or one of its Subsidiaries. "Consolidated Net Worth" means, with respect to any specified Person as of any date, the sum of: (1) the consolidated equity of the common stockholders of such Person and its consolidated Restricted Subsidiaries as set forth on the most recently available quarterly or annual consolidated balance sheet of Armor Holdings and its Restricted Subsidiaries (which shall be as of a date not more than 90 days prior to the date of computation, and which shall not take into account Unrestricted Subsidiaries); plus (2) the respective amounts reported on such Person's balance sheet as of such date with respect to any series of preferred stock (other than Disqualified Stock) that by its terms 132 is not entitled to the payment of dividends unless such dividends may be declared and paid only out of net earnings in respect of the year of such declaration and payment, but only to the extent of any cash received by such Person upon issuance of such preferred stock. "Consolidated Net Tangible Assets" means the total amount of assets of any Person on a consolidated basis, including deferred pension costs, after deducting therefrom (i) all current liabilities (excluding any indebtedness classified as a current liability), (ii) all goodwill, tradenames, trademarks, patents, unamortized debt discount and financing costs and all other like intangible assets and (iii) appropriate adjustments on account of minority interests of other Persons holding shares of the Subsidiaries of such Person, all as set forth in the most recent balance sheet of such Person and its consolidated Subsidiaries (but, in any event, as of a date within 150 days of the date of determination) and computed in accordance with generally accepted accounting principles. "Continuing Directors" means, as of any date of determination, any member of the Board of Directors of Armor Holdings who: (1) was a member of such Board of Directors on the date of the Indenture; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election. "Credit Agreement" means that certain Credit Agreement to be entered into on or within five days after the date of original issuance of the notes by and among Armor Holdings, Bank of America, N.A., as Administrative Agent and Arranger and the other lenders named therein in relation to a $60 million senior secured revolving credit facility, including any related letters of credit, notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time by one or more credit facilities, in which case, the credit agreement or similar agreement together with all other documents and instruments related shall constitute the "Credit Agreement," whether with the same or different agent and lenders. "Credit Facilities" means, one or more debt facilities (including, without limitation, the Credit Agreement (and any hedging arrangements with the lenders thereunder or Affiliates of such lenders, secured by the collateral securing Armor Holdings' Obligations under the Credit Agreement)) or commercial paper facilities, in each case with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time by one or more of such facilities, whether with the same or different banks and lenders. "Current Trading Price" means, with respect to any shares of Equity Interests, any sale price (regular way) quoted on the New York Stock Exchange, or any other national securities exchange or quotation system on which such Equity Interests are listed or quoted, on the applicable date of purchase, repurchase or redemption. 133 "Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default. "Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after the date on which the notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require Armor Holdings to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that Armor Holdings may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the "Restricted Payments" covenant. The term "Disqualified Stock" shall also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, on or prior to the date that is one year after the date on which the notes mature. "Discontinued Domestic Subsidiary" means any of the following Subsidiaries of Armor Holdings (i) ArmorGroup North America, Inc., (ii) Armor Group Services, LLC, (iii) CDR International, Inc., (iv) U.S. Defense Systems, LLC, (v) O'Gara Security Associates, Inc., (vi) ITI Limited Partnership, (vii) International Training, Inc., (viii) Network Audit Systems, Inc., (ix) New Technologies Armor, Inc., (x) The Parvus Company, (xi) Parvus Crisis Management Corporation, and (xii) The Parvus International Information Company. "Domestic Subsidiary" means any Subsidiary of Armor Holdings that was formed under the laws of the United States or any state thereof or the District of Columbia. "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Existing Indebtedness" means the aggregate principal amount of Indebtedness of Armor Holdings and its Subsidiaries (other than Indebtedness under the Credit Agreement and the notes) in existence on the date of the Indenture, until such amounts are repaid. "fair market value" means the price that would be paid in an arm's-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Board of Directors, whose determination shall be conclusive if evidenced by a Board Resolution. "Fixed Charges" means, with respect to any specified Person for any period, the sum, without duplication, of: (1) the consolidated interest expense of such 134 Person and its Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations; plus (2) the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period; plus (3) any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus (4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock or preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of Armor Holdings (other than Disqualified Stock) or to Armor Holdings or a Restricted Subsidiary of Armor Holdings, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP. "Fixed Charge Coverage Ratio" means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any Indebtedness or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of the applicable four-quarter reference period. In addition, for purposes of calculating the Fixed Charge Coverage Ratio: (1) acquisitions and dispositions of business entities or property and assets constituting a division or line of business of any Person that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be given pro forma effect as if they had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be 135 calculated on a pro forma basis in accordance with Regulation S-X under the Exchange Act; (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP shall be excluded; (3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Subsidiaries following the Calculation Date; and (4) consolidated interest expense attributable to interest on any Indebtedness (whether existing or being incurred) computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the Calculation Date (taking into account any interest rate option, swap, cap or similar agreement applicable to such Indebtedness if such agreement has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate for the entire period. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time. "Guarantee" means a guarantee, other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness. The terms "guarantee" and "guaranteed" used as a verb shall have a correlative meaning. "Hedging Obligations" means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and other agreements or arrangements designed to protect such Person against fluctuations in interest rates; (2) commodity swap agreements, commodity option agreements, forward contracts and other agreements or arrangements designed to protect such Person against fluctuations in commodity prices; and (3) foreign exchange contracts, currency swap agreements and other agreements or arrangements designed to protect such Person against fluctuations in foreign currency exchange rates. 136 "incur" means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become directly or indirectly liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness; provided that (1) any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary will be deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and (2) neither the accrual of interest nor the accretion of original issue discount nor the payment of interest in the form of additional Indebtedness (to the extent provided for when the Indebtedness on which such interest is paid was originally issued) shall be considered an incurrence of Indebtedness. "Indebtedness" means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent, in respect of: (1) borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof), but excluding obligations with respect to letters of credit (including trade letters of credit) securing obligations described in clause (5) below entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the third business day following receipt by such Person of a demand for reimbursement; (3) banker's acceptances; (4) Capital Lease Obligations and Attributable Debt; (5) the balance deferred and unpaid of the purchase price of any property which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except any such balance that constitutes an accrued expense or trade payable; (6) Hedging Obligations, other than Hedging Obligations that are incurred for the purpose of protecting Armor Holdings or its Restricted Subsidiaries against fluctuations in interest rates, commodity prices or foreign currency exchange rates, and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder; or (7) Disqualified Stock valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued dividends. In addition, the term "Indebtedness" includes (x) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person), provided that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of determination and (B) the amount of such Indebtedness, and (y) to the extent not otherwise included, the Guarantee by the specified Person of any 137 Indebtedness of any other Person. For purposes hereof, the "maximum fixed repurchase price" of any Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock, such fair market shall be determined in good faith by the Board of Directors of the issuer of such Disqualified Stock. The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, and shall be: (1) the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and (2) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness; provided that the obligation to repay money borrowed and set aside at the time of the incurrence of any Indebtedness in order to pre-fund the payment of the interest on such Indebtedness shall be deemed not to be "Indebtedness" so long as such money is held to secure the payment of such interest. "Investments" means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans or other extensions of credit (including Guarantees or other arrangements, but excluding advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of Armor Holdings or its Restricted Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business), advances (excluding commission, travel and similar advances to officers and employees made consistent with past practices), capital contributions (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If Armor Holdings or any Restricted Subsidiary of Armor Holdings sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of Armor Holdings such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of Armor Holdings, Armor Holdings shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Investment in such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of the above "Restricted Payments" covenant. The acquisition by Armor Holdings or any Restricted Subsidiary of Armor Holdings of a Person that holds an Investment in a third Person shall be deemed to be an Investment by Armor Holdings or such Restricted Subsidiary in such third 138 Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of the "Restricted Payments" covenant. "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction. "Net Income" means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however: (1) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with: (a) any asset sale outside the ordinary course of business; or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and (2) any extraordinary gain (but not loss), together with any related provision for taxes on such extraordinary gain (but not loss). "Net Proceeds" means the aggregate cash proceeds received by Armor Holdings or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness, secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP. "Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Permitted Business" means any business conducted or proposed to be conducted (as described in the offering memorandum) by Armor Holdings and its Restricted Subsidiaries on the date of the Indenture and other businesses reasonably related or ancillary thereto. "Permitted Investments" means: (1) any Investment in Armor Holdings or in a Wholly Owned Restricted Subsidiary 139 of Armor Holdings (including, without limitation, Guarantees of Obligations with respect to any Credit Facilities); (2) any Investment in Cash Equivalents; (3) any Investment by Armor Holdings or any Restricted Subsidiary of Armor Holdings in a Person, if as a result of such Investment: (a) such Person becomes a Wholly Owned Restricted Subsidiary of Armor Holdings; or (b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, Armor Holdings or a Wholly Owned Restricted Subsidiary of Armor Holdings; (4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the covenant described above under the caption "--Repurchase at the Option of Holders--Asset Sales"; (5) Investments acquired solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of Armor Holdings; (6) Hedging Obligations that are incurred for the purpose of protecting Armor Holdings or its Restricted Subsidiaries against fluctuations in interest rates, commodity prices or foreign currency exchange rates, and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnifies and compensation payable thereunder; (7) other Investments in any Person that is not an Affiliate of Armor Holdings (other than a Wholly Owned Restricted Subsidiary of Armor Holdings) having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (7) since the date of the Indenture, not to exceed 5% of Armor Holdings' Consolidated Net Tangible Assets; and (8) stock, obligations or securities received in satisfaction of judgments. "Permitted Liens" means: (1) Liens on the assets of Armor Holdings and any Subsidiary Guarantor securing Senior Debt that was permitted by the terms of the Indenture to be incurred; (2) Liens in favor of Armor Holdings or any Restricted Subsidiary; (3) Liens on property of a Person existing at the time such Person is merged with or 140 into or consolidated with Armor Holdings or any Restricted Subsidiary of Armor Holdings (or any Lien on the proceeds from any sale, liquidation or other disposition of such property); provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with Armor Holdings or the Restricted Subsidiary; (4) Liens on property existing at the time of acquisition thereof by Armor Holdings or any Restricted Subsidiary of Armor Holdings (or any Lien on the proceeds from any sale, liquidation or other disposition of such property), provided that such Liens were in existence prior to the contemplation of such acquisition and do not extend to any property other than the property so acquired by Armor Holdings or the Restricted Subsidiary; (5) Liens existing on the date of the Indenture; (6) In addition to all other Permitted Liens, Liens incurred in the ordinary course of business of Armor Holdings or any Restricted Subsidiary of Armor Holdings with respect to obligations that do not exceed $5.0 million at any one time outstanding; (7) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (4) of the second paragraph of the covenant entitled "Certain Covenants Incurrence of Indebtedness and Issuance of Preferred Stock" covering only the assets acquired with such Indebtedness (or any Lien on the proceeds from any sale, liquidation or other disposition of such assets); (8) statutory and common law Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (9) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person's obligations in respect of bankers' acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (10) Liens securing reimbursement obligations with respect to letters of credit and surety or performance bonds issued in the ordinary course of business, provided that such letters of credit or surety or performance bonds do not constitute Indebtedness; (11) Liens for taxes, assessments or other governmental charges not yet subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings provided appropriate reserves required pursuant to GAAP have been made in respect thereof; and (12) encumbrances, easements or reservations of, or rights of others for, licenses, 141 rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially adversely affect the value of the said properties or materially impair their use in the operation of the business of such Person. "Permitted Refinancing Indebtedness" means any Indebtedness of Armor Holdings or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of Armor Holdings or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that: (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest thereon and the amount of any reasonably determined premium necessary to accomplish such refinancing and such reasonable expenses incurred in connection therewith); (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the notes or the Subsidiary Guarantees, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the notes on terms at least as favorable to the Holders of notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (4) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is pari passu in right of payment to the notes or the Subsidiary Guarantees, such Permitted Refinancing Indebtedness is pari passu or subordinated in right of payment to the notes; and (5) such Indebtedness is incurred either by Armor Holdings or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity. "Public Equity Offering" means an offer and sale of Capital Stock (other than Disqualified Stock) of Armor Holdings pursuant to a registration statement that has been declared effective by the Commission pursuant to the Securities Act (other than a registration statement on Form S-8 or 142 otherwise relating to equity securities issuable under any employee benefit plan of Armor Holdings). "Qualifying Services Division Sale" means any single transaction or series of related transactions involving the disposition of any of the Discontinued Domestic Subsidiaries or any other entities classified as held for sale and presented separately as discontinued operations in Armor Holdings' audited financial statements for the year ended and as of December 31, 2002 in accordance with Financial Accounting Standards No. 144, in the case of each such entity for so long as such entity is so held for sale and presented separately as discontinued operations. "Qualifying USDS Sale" means any single transaction or series of related transactions involving the disposition of USDS, Inc. and its respective direct and indirect Subsidiaries as long as the Consolidated Net Income of such entities are excluded from the Consolidated Net Income of Armor Holdings for the purposes of the Indenture, provided that a determination by Armor Holdings to include the Consolidated Net Income of such entities in the Consolidated Net Income of Armor Holdings for the purposes of the Indenture shall be irrevocable. "Replacement Assets" means (1) non-current tangible assets that will be used or useful in a Permitted Business or (2) substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. "sale and leaseback transaction" means, with respect to any Person, any transaction involving any of the assets or properties of such Person whether now owned or hereafter acquired, whereby such Person sells or transfers such assets or properties and then or thereafter leases such assets or properties or any part thereof or any other assets or properties which such Person intends to use for substantially the same purpose or purposes as the assets or properties sold or transferred. "Significant Subsidiary" means any Restricted Subsidiary that would constitute a "significant subsidiary" within the meaning of Article 1 of Regulation S-X under the Exchange Act. "Stated Maturity" means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof. "Subsidiary" means, with respect to any specified Person: (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence 143 of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof). "Subsidiary Guarantee" means the Guarantee by any Subsidiary Guarantor of Armor Holdings' payment obligations under the notes on a senior subordinated basis. "Subsidiary Guarantors" means: (1) each direct or indirect Domestic Subsidiary of Armor Holdings as of the Issue Date that is a Restricted Subsidiary, other than USDS, Inc. and the Discontinued Domestic Subsidiaries; and (2) after the Issue Date, each Discontinued Domestic Subsidiary and any other Subsidiary that executes a Subsidiary Guarantee in accordance with the provisions of the Indenture; and their respective successors and assigns until released from their obligations under their Subsidiary Guarantees and the Indenture in accordance with the terms of the Indenture. "Unrestricted Subsidiary" means any Subsidiary of Armor Holdings that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution in compliance with the "Designation of Restricted and Unrestricted Subsidiaries" covenant and any Subsidiary of such Subsidiary. "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (2) the then outstanding principal amount of such Indebtedness. "Wholly Owned Restricted Subsidiary" of any specified Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which 144 (other than directors' qualifying shares or Investments by foreign nationals mandated by applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries of such Person. DESCRIPTION OF SENIOR INDEBTEDNESS On August 12, 2003, we terminated our prior credit facility and entered into a new secured revolving credit facility with Bank of America, N.A., Wachovia Bank, National Association and a syndicate of other financial institutions arranged by Banc of America Securities LLC. The new credit facility consists of a five-year revolving credit facility and, among other things, provides for (i) total maximum borrowings of $60 million, (ii) a $25 million sub-limit for the issuances of standby and commercial letters of credit, (iii) a $5 million sub-limit for swing-line loans, and (iv) a $5 million sub-limit for multi-currency borrowings. All borrowings under the new credit facility will bear interest at either (i) a rate equal to LIBOR, plus an applicable margin ranging from 1.125% to 1.625%, (ii) an alternate base rate which will be the higher of (a) the Bank of America prime rate and (b) the Federal Funds rate plus ..50%, or (iii) with respect to foreign currency loans, a fronted offshore currency rate, plus an applicable margin ranging from 1.125% to 1.625%, depending on certain conditions. The new credit facility is guaranteed by certain of our direct and indirect domestic subsidiaries and is secured by, among other things (i) a pledge of all of the issued and outstanding shares of stock or other equity interests of certain of our direct and indirect domestic subsidiaries, (ii) a pledge of 65% of the issued and outstanding voting shares of stock or other voting equity interests of certain of our direct and indirect foreign subsidiaries, (iii) a pledge of 100% of the issued and outstanding nonvoting shares of stock or other nonvoting equity interests of certain of our direct and indirect foreign subsidiaries, and (iv) a first priority perfected security interest on certain of our domestic assets and certain domestic assets of certain of our direct and indirect subsidiaries that will become guarantors of our obligations under the new credit facility, including, among other things, accounts receivable, inventory, machinery, equipment, certain contract rights, intellectual property rights and general intangibles. As of the date of this prospectus, we are in compliance with all of our negative and affirmative covenants. FEDERAL INCOME TAX CONSIDERATIONS The following general discussion summarizes the material U.S. Federal income tax consequences of the exchange, ownership and disposition of the notes. This discussion only deals with persons that hold notes as a capital asset within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code"), and that purchase the notes for cash at original issue at the initial offering price. This discussion does not address the U.S. Federal income tax consequences that may be relevant to a particular holder subject to special treatment under certain U.S. Federal income tax laws (for example, persons subject to the alternative minimum tax provisions of the Code). Also, this discussion is not intended to be wholly applicable to all categories of investors, some of which, such as dealers in securities or foreign currency, banks, trusts, insurance companies, tax-exempt organizations (employment, charitable or other), persons that hold notes as part of a hedging or conversion transaction or a straddle, persons deemed to sell notes under the constructive sale provisions of the Code, persons that have a functional currency other than the U.S. dollar and investors in pass-through entities, may be subject to special rules. 145 This discussion is based on the Code, the final, temporary and proposed Treasury regulations promulgated thereunder, administrative pronouncements and judicial decisions, all as in effect on the date hereof and all of which are subject to change, possibly with retroactive effect. We have not requested, and will not request, a ruling from the U.S. Internal Revenue Service (the "IRS") with respect to any of the U.S. Federal income tax consequences described below. There can be no assurance that the IRS will not disagree with or challenge any of the conclusions set forth herein. Holders of the old notes should consult their own tax advisors concerning the application of U.S. Federal income tax laws, as well as the laws of any state, local or foreign taxing jurisdiction, to their particular situations. U.S. HOLDERS The following discussion is limited to persons that are U.S. Holders. For these purposes, "U.S. Holder" means the beneficial owner of a note that for U.S. Federal income tax purposes is (i) an individual who is a citizen or resident of the United States, (ii) a corporation or other entity taxable as a corporation that is created or organized under the laws of the United States or any political subdivision thereof or therein, (iii) an estate the income of which is subject to U.S. Federal income tax regardless of its source, (iv) a trust subject to the primary supervision of a United States court and the control of one or more U.S. persons or (v) a person whose worldwide income or gain is otherwise subject to U.S. Federal income tax on a net income basis. If a partnership or other entity taxable as a partnership holds the notes, the tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. Such partner should consult its tax advisor as to the tax consequences. Exchange Offer The exchange of old notes for the new notes pursuant to the exchange offer should not constitute a taxable event for U.S. Federal income tax purposes. As a result: o a U.S. Holder of notes should not recognize taxable gain or loss as a result of the exchange of old notes for the new notes pursuant to the exchange offer; o the holding period of the new notes should include the holding period of the old notes surrendered in exchange therefor; and o a U.S. Holder's adjusted tax basis in the new notes should be the same as such U.S. Holder's adjusted tax basis in the old notes surrendered in exchange therefor. Interest A U.S. Holder must generally include interest on a note in its ordinary income at the time such interest is received or accrued, in accordance with such U.S. Holder's method of accounting for U.S. Federal income tax purposes. 146 Sale, Exchange or Redemption of Notes Upon the sale, exchange or redemption of a note, a U.S. Holder generally will recognize taxable gain or loss equal to the difference between (i) the amount realized on such disposition and (ii) such U.S. Holder's adjusted tax basis in the note. Notwithstanding the foregoing, any amounts realized in connection with any sale, exchange or redemption with respect to accrued interest not previously included in income will be treated as ordinary interest income. A U.S. Holder's adjusted tax basis in a note generally will equal the cost of such note less any principal payments received by such holder. Contingent Payments In certain circumstances, we may be obligated to pay you amounts in excess of the stated interest and principal payable on the notes. The obligation to make such payments, including liquidated damages and redemption premiums payable in certain circumstances, may implicate the provisions of Treasury regulations relating to "contingent payment debt instruments". If the notes were deemed to be contingent payment debt instruments, U.S. Holders might, among other things, be required to treat any gain recognized on the sale or other disposition of a note as ordinary income, subject to tax at a maximum Federal rate of 38.6%, rather than as capital gain which may be subject to tax at a maximum Federal rate of 20%. The regulations applicable to contingent payment debt instruments have not been the subject of authoritative interpretation and therefore the scope of the regulations is not certain. Armor Holdings intends to take the position that the likelihood that such payments will be made is remote and therefore the notes are not subject to the rules governing contingent payment debt instruments. This determination will be binding on a holder unless such holder explicitly discloses on a statement attached to the holder's timely filed U.S. Federal income tax return for the taxable year that includes the acquisition date of the note that such holder's determination is different. Purchasers of notes are urged to consult their tax advisors regarding the possible application of the contingent payment debt instrument rules to the notes. Information Reporting and Backup Withholding A U.S. Holder of notes may be subject to backup withholding, currently at a rate of 30%, but subject to gradual reduction to 28% by year 2006 (the "Applicable Backup Withholding Rate"), with respect to "reportable payments," which includes interest and principal paid on or the gross proceeds of a sale, exchange or redemption of the notes. The payor of any reportable payments will be required to deduct and withhold the Applicable Backup Withholding Rate from such payments if (i) the payee fails to establish that it is entitled to an exemption, (ii) the payee fails to furnish its correct Taxpayer Identification Number ("TIN") to the payor in the prescribed manner, (iii) the IRS notifies the payor that the TIN furnished by the payee is incorrect, (iv) the payee has failed properly to report the receipt of reportable payments and the IRS has notified the payor that backup withholding is required or (v) the payee fails to certify under penalties of perjury that such payee is not subject to backup withholding. If any one of these events occurs with respect to a U.S. Holder of notes, Armor Holdings or its paying or other withholding agent will be required to withhold the Applicable Backup Withholding Rate from any payments of principal and interest on a note. 147 Any amount withheld from a payment to a U.S. Holder under the backup withholding rules will be allowed as a refund or credit against such holder's U.S. Federal income tax liability, so long as the required information is provided timely to the IRS. Armor Holdings, its paying agent or other withholding agent generally will report to a U.S. Holder of notes and to the IRS the amount of any reportable payments made in respect of the notes for each calendar year and the amount of tax withheld, if any, with respect to such payments. NON-U.S. HOLDERS If you are a "Non-U.S. Holder," as defined below, this section applies to you. A Non-U.S. Holder means any beneficial owner of a new note that is not a U.S. Holder. The rules governing the United States Federal income and estate taxation of a Non-U.S. Holder are complex, and no attempt will be made herein to provide more than a summary of those rules. Special rules may apply to a Non-U.S. Holder if such holder is a controlled foreign corporation, passive foreign investment company or foreign personal holding company and therefore subject to special treatment under the Code. IF YOU ARE A NON-U.S. HOLDER, YOU SHOULD CONSULT WITH YOUR OWN TAX ADVISORS TO DETERMINE THE EFFECT ON YOU OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS WITH REGARD TO AN INVESTMENT IN THE NEW NOTES, INCLUDING ANY REPORTING REQUIREMENTS. Interest Subject to the discussion of backup withholding below, payments of interest on a note to a Non-U.S. Holder generally will not be subject to U.S. Federal income or withholding tax, provided that (i) the holder does not actually or constructively own 10% or more of the total combined voting power of all classes of stock of Armor Holdings that are entitled to vote, (ii) the holder is not (a) a controlled foreign corporation that is related to Armor Holdings through stock ownership or (b) a bank receiving interest on a loan entered into in the ordinary course of business, (iii) such interest is not effectively connected with the conduct by the Non-U.S. Holder of a trade or business within the United States and (iv) Armor Holdings or its paying agent receives appropriate documentation establishing that the Non-U.S. Holder is not a U.S. person. A Non-U.S. Holder that does not qualify for exemption from withholding under the preceding paragraph generally will be subject to withholding of U.S. Federal income tax at a 30% rate (or lower applicable treaty rate) on payments of interest on the notes. If interest on the notes is effectively connected with the conduct by a Non-U.S. Holder of a trade or business within the United States, such interest will be subject to U.S. Federal income tax on a net income basis at the rate applicable to U.S. persons generally (and, with respect to corporate holders, may also be subject to a 30% branch profits tax). If interest is subject to U.S. Federal income tax on a net income basis in accordance with these rules, such payments will not be subject to U.S. withholding tax so long as the relevant Non-U.S. Holder provides Armor Holdings or its paying agent with the appropriate documentation. Sale, Exchange or Redemption of Notes Subject to the discussion of backup withholding, any gain realized by a Non-U.S. Holder on 148 the sale, exchange or redemption of a note generally will not be subject to U.S. Federal income tax, unless (i) such gain is effectively connected with the conduct by such Non-U.S. Holder of a trade or business within the United States, (ii) the Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of disposition and certain other conditions are satisfied or (iii) the Non-U.S. Holder is subject to tax pursuant to the provisions of U.S. Federal income tax law applicable to certain expatriates. Information Reporting and Backup Withholding Backup withholding and information reporting generally will not apply to interest payments made to a Non-U.S. Holder in respect of the notes if such Non-U.S. Holder furnishes Armor Holdings or its paying agent with appropriate documentation of such holder's non-U.S. status. The payment of proceeds from a Non-U.S. Holder's disposition of notes to or through the U.S. office of any broker, domestic or foreign, will be subject to information reporting and possible backup withholding unless such holder certifies as to its non-U.S. status under penalties of perjury or otherwise establishes an exemption, provided that the broker does not have actual knowledge that such holder is a U.S. person or that the conditions of an exemption are not, in fact, satisfied. The payment of the proceeds from a Non-U.S. Holder's disposition of a note to or through a non-U.S. office of either a U.S. broker or a non-U.S. broker that is a U.S.-related person will be subject to information reporting, but not backup withholding, unless such broker has documentary evidence in its files that such Non-U.S. Holder is not a U.S. person and the broker has no knowledge to the contrary, or the Non-U.S. Holder establishes an exemption. For this purpose, a "U.S.-related person" is (i) a controlled foreign corporation for U.S. Federal income tax purposes, (ii) a foreign person 50% or more of whose gross income from all sources for the three-year period ending with the close of its taxable year preceding payment (or for such part of the period that the broker has been in existence) is derived from activities that are effectively connected with the conduct of a U.S. trade or business or (iii) a foreign partnership that is either engaged in the conduct of a trade or business in the U.S. or of which 50% or more of its income or capital interests are held by U.S. persons. Neither information reporting nor backup withholding will apply to a payment of the proceeds of a Non-U.S. Holder's disposition of notes by or through a non-U.S. office of a non-U.S. broker that is not a U.S.-related person. Copies of any information returns filed with the IRS may be made available by the IRS, under the provisions of a specific treaty or agreement, to the taxing authorities of the country in which the Non-U.S. Holder resides. Any amounts withheld under the backup withholding rules from a payment to a Non-U.S. Holder will be allowed as a refund or a credit against such Non-U.S. Holder's U.S. Federal income tax liability, provided that the requisite procedures are followed. Prospective purchasers of notes are urged to consult their own tax advisors with respect to the application to their particular situations of U.S. Federal income tax laws, as well as the laws of any state, local or foreign taxing jurisdiction. PLAN OF DISTRIBUTION We are not using any underwriters for this exchange offer. 149 Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of these new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for old notes where the old notes were acquired as a result of market-making activities or other trading activities. We and our subsidiary guarantors have agreed to make this Prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. We will not receive any proceeds from any sale of new notes by broker-dealers or any other persons. New notes received by broker-dealers for their own account pursuant the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes, or a combination of these methods of resale, at market prices prevailing at the time of resale, at prices related to the prevailing market prices, or negotiated prices. Any resale of new notes may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any broker-dealer and/or the purchasers of any new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and any broker-dealer that participates in a distribution of the new notes may be deemed to be an "underwriter" within the meaning of the Securities Act, and any profit on any of these resales of new notes or any commissions or concessions received by any of these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. We and our guarantors will use our and their best efforts to keep the registration statement continuously effective, supplemented and amended to the extent necessary to ensure that it is available for resales of notes acquired by broker-dealers for their own accounts as a result of market-making activities or other trading activities, and to ensure that it conforms with the requirements of the registration rights agreement, the Securities Act and the policies, rules and regulations of the Commission, for a period ending on the earlier of o 180 days from the date on which the exchange offer is consummated; and o the date on which all resales of the new notes by the broker-dealers holding the new notes have been made. We and our guarantors will provide sufficient copies of the latest version of this prospectus to broker-dealers promptly upon request at any time during the 180-day (or shorter as provided in the foregoing sentence) period in order to facilitate such resales. We have agreed to pay all expenses incident to the exchange offer, including the expenses of one counsel for the holders of the old notes, other than commissions or concessions of any brokers or dealers, and will indemnify the holders of the old notes, including any broker-dealer, against certain liabilities, including certain liabilities under the Securities Act. 150 By its acceptance of the exchange offer, any broker-dealer that receives new notes pursuant to the exchange offer agrees to notify us before using the prospectus in connection with the sale or transfer of new notes. The broker-dealer further acknowledges and agrees that, upon receipt of notice from us of the happening of any event which makes any statement in the prospectus untrue in any material respect or which requires the making of any changes in the prospectus to make the statements in the prospectus not misleading or which may impose upon us disclosure obligations that may have a material adverse effect on us, which notice we agree to deliver promptly to the broker-dealer, the broker-dealer will suspend use of the prospectus until we have notified the broker-dealer that delivery of the prospectus may resume and have furnished copies of any amendment or supplement to the prospectus to the broker-dealer. 151 ARMOR HOLDINGS, INC. AND SUBSIDIARIES UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS FOR THE QUARTER ENDED SEPTEMBER 30, 2003 ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEET (IN THOUSANDS)
SEPTEMBER 30, 2003 DECEMBER 31, 2002 (UNAUDITED) * -------------------- ------------------- ASSETS CURRENT ASSETS: Cash and cash equivalents $ 154,766 $ 12,913 Accounts receivable (net of allowance for doubtful accounts of $1,269 and $1,428) 59,215 58,513 Costs and earned gross profit in excess of billings 1,088 234 Inventories 60,068 62,330 Prepaid expenses and other current assets 21,321 12,212 Current assets of discontinued operations (Note 2) 47,958 28,825 ------------ ------------ Total current assets 344,416 175,027 PROPERTY AND EQUIPMENT (net of accumulated depreciation of $17,243 and $12,919) 49,531 47,136 GOODWILL (net of accumulated amortization of $4,024 and $4,024) 98,934 98,736 PATENTS, LICENSES AND TRADEMARKS (net of accumulated amortization of $2,366 and $2,169) 7,419 7,521 OTHER ASSETS 21,048 9,048 LONG-TERM ASSETS OF DISCONTINUED OPERATIONS (Note 2) 20,045 30,285 ------------ ------------ TOTAL ASSETS $ 541,393 $ 367,753 ============ ============
* Condensed from audited financial statements. See notes to condensed consolidated financial statements. 152 ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEET (CONTINUED) (IN THOUSANDS, EXCEPT FOR SHARE DATA)
SEPTEMBER 30, 2003 DECEMBER 31, 2002 (UNAUDITED) * ------------------------ ----------------------------- LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES: Current portion of long-term debt $ 765 $ 1,813 Short-term debt 608 599 Accounts payable 22,013 23,770 Accrued expenses and other current liabilities 38,965 25,116 Income taxes payable 3,914 5,913 Current liabilities of discontinued operations (Note 2) 23,942 17,225 ------------ ------------- Total current liabilities 90,207 74,436 LONG-TERM LIABILITIES: Long-term debt, less current portion 159,921 5,072 Discontinued operations (Note 2) 125 168 ------------ ------------- Total liabilities 250,253 79,676 COMMITMENTS AND CONTINGENCIES (NOTE 14) STOCKHOLDERS' EQUITY Preferred stock, $.01 par value, 5,000,000 shares authorized; no shares issued and outstanding - - Common stock, $.01 par value; 50,000,000 shares authorized; 34,207,688 and 33,593,977 issued and 28,147,466 and 29,456,692 outstanding at September 30, 2003 and December 31, 2002, respectively 342 336 Additional paid-in capital 315,148 307,487 Retained earnings 49,871 34,056 Accumulated other comprehensive loss (1,904) (4,169) Treasury stock (72,317) (49,633) ------------ ------------- Total stockholders' equity 291,140 288,077 ------------ ------------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 541,393 $ 367,753 ============ =============
* Condensed from audited financial statements. See notes to condensed consolidated financial statements. 153 ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, 2003 2002 2003 2002 ------------- ------------- ------------- ------------- REVENUES: Products $ 50,786 $ 49,047 $ 144,140 $ 131,049 Mobile Security 40,096 31,510 108,875 90,717 -------- -------- --------- --------- Total Revenues 90,882 80,557 253,015 221,766 -------- -------- --------- --------- COSTS AND EXPENSES: Cost of sales 61,953 55,947 176,396 152,481 Operating expenses 15,977 12,852 44,505 37,046 Amortization 72 62 201 213 Integration and other non-recurring charges 368 1,359 4,565 4,476 -------- -------- --------- --------- OPERATING INCOME 12,512 10,337 27,348 27,550 Interest expense, net 1,475 343 2,291 669 Other expense (income), net 96 (13) 181 (77) -------- -------- --------- --------- INCOME FROM CONTINUING OPERATIONS BEFORE PROVISION FOR INCOME TAXES 10,941 10,007 24,876 26,958 PROVISION FOR INCOME TAXES 4,832 7,043 10,044 13,603 -------- -------- --------- --------- INCOME FROM CONTINUING OPERATIONS 6,109 2,964 14,832 13,355 -------- -------- --------- --------- DISCONTINUED OPERATIONS (NOTE 2): INCOME (LOSS) FROM DISCONTINUED OPERATIONS BEFORE PROVISION FOR INCOME TAXES 1,679 (17,032) 3,593 (17,606) PROVISION FOR INCOME TAXES 1,673 639 2,610 421 -------- -------- --------- --------- INCOME (LOSS) FROM DISCONTINUED OPERATIONS 6 (17,671) 983 (18,027) -------- -------- --------- --------- NET INCOME (LOSS) $ 6,115 $(14,707) $ 15,815 $ (4,672) ======== ========= ========= ========= NET INCOME (LOSS) PER COMMON SHARE - BASIC ======== ========= ========= ========= INCOME FROM CONTINUING OPERATIONS $ 0.22 $ 0.10 $ 0.52 $ 0.44 ======== ========= ========= ========= INCOME (LOSS) FROM DISCONTINUED OPERATIONS 0.00 (0.60) 0.04 (0.59) ======== ========= ========= ========= ======== ========= ========= ========= BASIC EARNINGS (LOSS) PER SHARE $ 0.22 $ (0.50) $ 0.56 $ (0.15) ======== ========= ========= =========
See notes to condensed consolidated financial statements. 154 ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS - CONTINUED (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------ ------------------ ------------------ ------------------ NET INCOME (LOSS) PER COMMON SHARE - DILUTED INCOME FROM CONTINUING OPERATIONS $ 0.22 $ 0.10 $ 0.52 $ 0.43 INCOME (LOSS) FROM DISCONTINUED OPERATIONS 0.00 (0.59) 0.04 (0.58) -------------------- ------------------- ------------------- ------------------- DILUTED EARNINGS (LOSS) PER SHARE $ 0.22 $ (0.49) $ 0.56 $ (0.15) ==================== =================== =================== =================== WEIGHTED AVERAGE SHARES - BASIC 27,811 29,708 28,106 30,639 ==================== =================== =================== =================== WEIGHTED AVERAGE SHARES - DILUTED 28,249 30,037 28,438 31,373 ==================== =================== =================== ===================
See notes to condensed consolidated financial statements. 155 CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS ARMOR HOLDINGS, INC. AND SUBSIDIARIES (UNAUDITED) (IN THOUSANDS)
NINE MONTHS ENDED -------------------------------------------- SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------ ------------------ CASH FLOWS FROM OPERATING ACTIVITIES: Income from continuing operations $ 14,832 $ 13,355 Adjustments to reconcile income from continuing operations to cash used in operating activities: Depreciation and amortization 5,380 4,049 Loss on disposal of fixed assets 167 136 Deferred income taxes 3,676 (680) Non-cash termination charge 2,093 -- Changes in operating assets and liabilities, net of acquisitions: Increase in accounts receivable (1,556) (3,130) Decrease (increase) in inventories 2,173 (10,203) Increase in prepaid expenses and other assets (3,682) (3,569) Increase (decrease) in accounts payable, accrued expenses and other current liabilities 11,808 (6,775) (Decrease) increase in income taxes payable (1,999) 6,345 ----------- ------------ Net cash provided by (used in) operating activities 32,892 (472) ----------- ------------ CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment (5,645) (4,548) Purchase of patents and trademarks (99) (45) Additional consideration for purchased businesses (740) (2,652) Purchase of businesses, net of cash acquired (5,828) (7,411) ----------- ------------ Net cash used in investing activities (12,312) (14,656) ----------- ------------ CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from the exercise of stock options 6,588 4,237 Treasury stock purchases (22,684) (26,054) Cash paid for financing costs (4,020) (326) Proceeds from the issuance of long-term debt 147,504 -- Repayments of long-term debt (1,399) (591) Borrowings under line of credit 31,744 27,763 Repayments under line of credit (32,070) (20,701) ----------- ------------ Net cash provided by (used in) financing activities 125,663 (15,672) ----------- ------------ Effect of exchange rate changes on cash and cash equivalents 478 (872) Net cash (used in) transferred from discontinued operations (4,868) 767 ----------- ------------ NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 141,853 (30,905) CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 12,913 47,489 ----------- ------------ CASH AND CASH EQUIVALENTS, END OF PERIOD $ 154,766 $ 16,584 =========== ============ CASH AND CASH EQUIVALENTS, END OF PERIOD CONTINUING OPERATIONS $ 154,766 $ 16,584 DISCONTINUED OPERATIONS 5,051 4,819 ----------- ------------ $ 159,817 $ 21,403 =========== ============
See notes to condensed consolidated financial statements. 156 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS NOTE 1 - BASIS OF PRESENTATION The accompanying unaudited condensed consolidated financial statements of Armor Holdings, Inc. and its wholly-owned subsidiaries (the "Company", "we", "our", "us") have been prepared in accordance with generally accepted accounting principles for interim information and the instructions to Form 10-Q and Rule 10-01 of Regulation S-X, and do not include all the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of management, all adjustments (consisting only of normal recurring accruals and the elimination of all material intercompany accounts and transactions) considered necessary by management to present a fair presentation have been included. The results of operations for the three and nine-month periods are not necessarily indicative of the results to be expected for the full year and should be read in conjunction with the consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2002. The amounts disclosed in the footnotes are related to continuing operations unless otherwise indicated. As discussed in Note 2 and elsewhere in this prospectus, we announced our intention to sell our ArmorGroup Services Division (the "Services Division"). As a result, the assets and liabilities of the Services Division have been classified as assets and liabilities of discontinued operations on our balance sheet and the results of their operations classified as income from discontinued operations in the accompanying unaudited condensed consolidated financial statements. NOTE 2 - DISCONTINUED OPERATIONS On July 15, 2002, we announced plans to sell the Services Division and the retention of Merrill Lynch & Company to assist in the sale. In accordance with Statement of Financial Accounting Standards No. 144, "Accounting for Impairment or Disposal of Long-Lived Assets," (SFAS 144) the assets and liabilities of the Services Division have been classified as held for sale, with its operating results in the current and prior periods reported in discontinued operations for the three and nine-month periods ended September 30, 2003 and 2002. On April 17, 2003, we announced that we had completed the sale of our ArmorGroup Integrated Systems business through the sale of 100% of the stock of ArmorGroup Integrated Systems, Inc. and Low Voltage Systems Technologies, Inc. to Aerwav Integration Systems, Inc. ("AIS"). AIS is a wholly owned subsidiary of Aerwav Holdings, LLC. As consideration for the integrated systems business, we received a $4.1 million collateralized note due in two years and a warrant for approximately 2.5% of AIS. In accordance with SFAS 144, we have recorded a loss of $366,000 on the sale. For the three months ended September 30, 2003, net income from discontinued operations was $6,000 compared to a net loss of $17.7 million in the comparable period in the prior year. Excluding the ArmorGroup Integrated Systems business net loss of $13.9 million, the net loss was $3.7 million for the three-month period ended September 30, 2002. 157 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) For the nine months ended September 30, 2003, net income from discontinued operations was $983,000 compared to a net loss of $18.0 million in the comparable period in the prior year. Excluding the pre-tax loss of $366,000 (after-tax loss of $238,000) on the sale of ArmorGroup Integrated Systems business, a net loss of $613,000 in the nine-month period ended September 30, 2003 and a net loss of $14.3 million for the nine-month period ended September 30, 2002, net income was $1.8 million and a net loss of $3.7 million for the nine months ended September 30, 2003 and 2002, respectively. Based upon our analysis and discussions with our advisors regarding the estimated realizable value, net of selling costs, of the Services Division, we reduced its carrying value, and recorded net impairment charges of $30.3 million in fiscal 2002 and $1.3 million in the three months ended September 30, 2003. These impairment charges consisted of approximately $6.3 million in estimated disposal costs and a $35.1 million non-cash goodwill reduction, net of an expected $10.0 million income tax benefit. The provision for income taxes for discontinued operations was $1.7 million and $2.6 million for the three and nine-month periods ended September 30, 2003, respectively. The reduction in the carrying value of the Services Division is management's best estimate based upon currently available information, including discussions with our investment bankers. The actual proceeds from the disposal of our Services Division may differ materially from our current estimates and could result in either a gain or a loss upon final disposal. We are actively pursuing a sale of this business. A summary of the operating results of the discontinued operations for the three months and nine months ended September 30, 2003 and 2002 is as follows.
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------ ------------------ ------------------ ------------------ (IN THOUSANDS) (IN THOUSANDS) Revenue $ 26,039 $ 23,747 $ 75,738 $ 74,273 Cost of sales 18,078 19,730 53,447 55,840 Operating expenses 4,882 8,018 16,299 22,582 Charge for impairment of long- lived assets 11,258 11,905 11,258 11,905 Integration and other non-recurring charges 104 836 598 1,225 --------- -------- --------- -------- Operating loss (8,283) (16,742) (5,864) (17,279) Interest expense, net 18 34 71 127 Other expense, net 20 256 472 200 --------- -------- --------- -------- Loss from discontinued operations before (benefit) provision for income taxes (8,321) (17,032) (6,407) (17,606) (Benefit) provision for income taxes (8,327) 639 (7,390) 421 --------- -------- --------- -------- (Loss) income from discontinued operations $ 6 $ (17,671) $ 983 $(18,027) ========= ========= ========= ========
158 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) The following is a summary of the assets and liabilities of our discontinued operations:
SEPTEMBER 30, DECEMBER 31, 2003 2002 ------------- ------------ (IN THOUSANDS) Assets Cash and cash equivalents $ 5,051 $ 3,638 Accounts receivable, net 19,810 16,228 Other current assets 23,097 8,959 --------- --------- Total current assets 47,958 28,825 Property and equipment, net 13,588 12,481 Goodwill, net 1,961 12,995 Other assets 4,496 4,809 --------- --------- Total assets of discontinued operations $ 68,003 $ 59,110 ========= ========= Liabilities Current portion of long-term debt $ 125 $ 186 Short-term debt 6,604 350 Accounts payable 2,115 2,405 Accrued expenses and other current liabilities 15,098 14,284 --------- --------- Total current liabilities 23,942 17,225 Long-term debt 125 168 --------- --------- Total liabilities of discontinued operations $ 24,067 $ 17,393 ========= =========
159 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 3 - COMPREHENSIVE INCOME The components of comprehensive income, net of tax provision (benefit) of $31,000 and ($26,000) for the three months ended September 30, 2003 and 2002, respectively, and $255,000 and ($197,000) for the nine months September 30, 2003 and 2002, respectively, are listed below:
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------ ------------------ ------------------ ------------------ (IN THOUSANDS) (IN THOUSANDS) Net income (loss) $ 6,115 $ (14,707) $ 15,815 $ (4,672) Other comprehensive income (loss): Foreign currency translations, net of tax 34 (617) 2,265 (852) ---------- --------- --------- --------- Comprehensive income (loss): $ 6,149 $ (15,324) $ 18,080 $ (5,524) ========== ========= ========= =========
NOTE 4 - INVENTORIES Inventories are stated at the lower of cost or market using the first-in, first-out (FIFO) method and are summarized as follows: SEPTEMBER 30, 2003 DECEMBER 31, 2002 ------------------ ----------------- (IN THOUSANDS) Raw material $ 34,067 $ 30,211 Work-in-process 12,573 15,733 Finished goods 13,428 16,386 -------- -------- Total inventories $ 60,068 $ 62,330 ======== ======== NOTE 5 - ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES Accrued expenses and other current liabilities are summarized as follows:
SEPTEMBER 30, 2003 DECEMBER 31, 2002 ------------------ ----------------- (IN THOUSANDS) Accrued expenses and other current liabilities $ 25,328 $ 16,988 Deferred consideration for acquisitions 1,310 1,826 Customer deposits 12,327 6,302 -------- --------- Total accrued expenses and other current liabilities $ 38,965 $ 25,116 ======== =========
160 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 6 - DEBT
SEPTEMBER 30, DECEMBER 31, 2003 2002 --------------- ------------- (IN THOUSANDS) Credit facility (a) $ -- $ -- Senior Subordinated Notes (b) 147,538 -- Ontario Industrial Development Authority Variable Rate Demand Industrial Development Revenue Bonds, Series 1989 payable in annual installments of $200 to $300, through August 1, 2014, with interest paid monthly at varying rates 2,600 2,800 Note payable in scheduled installments through 2013, with interest rate of 5% 1,482 1,582 Economic Development Revenue Bonds, payable in scheduled installments through September 2016, with a variable interest rate approximating 85% of the bond equivalent yield of the 13-week U.S. Treasury bills (not to exceed 12%), which was 2.75% at December 31, 2002. -- 1,075 Note to former officer payable in monthly principal and interest installments of $7 through December 31, 2009 with an imputed interest rate of 9.25% 367 399 Minimum guaranteed royalty to former officer payable in monthly principal and interest installments of $4 through August 2005, with an imputed interest rate of 9.2% 85 114 Minimum guaranteed royalty to former officer payable in monthly principal and interest installments of $36 through April 2005, with an imputed interest rate of 7.35% 638 915 Plus fair value of interest rate swaps (c) 7,976 -- --------- --------- $ 160,686 $ 6,885 Less current portion (765) (1,813) --------- --------- Total $ 159,921 $ 5,072 ========= =========
(a) Credit Facility - On August 12, 2003, we terminated our existing credit facility and entered into a new collateralized revolving credit facility with Bank of America N.A., Wachovia Bank, N.A. and Key Bank, N.A. The new credit facility is a five-year revolving credit facility and, among other things, provides for: 1) total maximum borrowings of $60 million; 2) a $25 million sub-limit for the issuances of standby and commercial letters of credit; 3) a $5 million sub-limit for swing-line loans; and 4) a $5 million sub-limit for multi-currency borrowings. All borrowings under the new credit facility will bear interest at either 1) a rate equal to LIBOR, plus an applicable margin ranging from 1.125% to 1.625%; 2) an alternate base rate which will be the higher of (a) the Bank of America prime rate and (b) the Federal Funds rate plus ..50%; or 3) with respect to foreign currency loans, a fronted offshore currency rate, plus an applicable margin ranging from 1.125% to 1.625%, depending on certain conditions. 161 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) (b) Senior Subordinated Notes - On August 12, 2003, we completed a private placement of $150 million aggregate principal amount of 8.25% senior subordinated notes due 2013 (the "Notes"). The Notes are guaranteed by all of our domestic subsidiaries, except USDS, Inc., on a senior subordinated basis (see Note 13). The Notes have been sold to qualified institutional buyers in reliance on Rule 144A of the Securities Act of 1933 and to non-U.S. persons in reliance on Regulation S under the Securities Act of 1933. The Notes were rated B1/B+ by Moody's Investors' Service and Standard & Poor's Rating Services, respectively. We intend to use the net proceeds of the offering to fund future acquisitions, including some or all of the purchase price for our pending acquisition of Simula, Inc., repay a portion of our outstanding debt and for general corporate and working capital purposes, including the funding of capital expenditures. Interest on the Notes is payable semiannually on the fifteenth of February and August of each year. The Notes were issued at a discount of approximately $2.5 million to investors. (c) Fair Value of Interest Rate Swaps - On September 2, 2003, we entered into interest rate swap agreements, designated as a fair value hedge as defined under Statement of Financial Accounting Standard No. 133, "Accounting for Derivative Instruments and Hedge Activities," (SFAS 133) with an aggregate notional amount totaling $150 million. The agreements were entered to exchange the fixed interest rate on the Notes for a variable interest rate equal to six-month LIBOR, set in arrears, plus a spread ranging from 2.735% to 2.75% fixed semi-annually on the fifteenth of February and August. At September 30, 2003, the six-month LIBOR was 1.18%. The agreements are subject to other terms and conditions common to transactions of this type. In accordance with SFAS 133, changes in the fair value of the interest rate swap agreements offset changes in the fair value of the fixed rate debt due to changes in the market interest rate. The fair value of the interest rate swap agreements was approximately $8.0 million at September 30, 2003. The agreements are deemed to be a perfectly effective fair value hedge and therefore qualify for the short-cut method of accounting under SFAS 133. As a result, no ineffectiveness is expected to be recognized in our earnings associated with the interest rate swap agreements on the Notes. NOTE 7 - DERIVATIVE FINANCIAL INSTRUMENTS We account for derivative instruments in accordance with SFAS 133, which requires all freestanding and embedded derivative instruments to be measured at fair value and recognized on the balance sheet as either assets or liabilities. In addition, all derivative instruments used in hedging relationships must be designated, reassessed and accounted for as either fair value hedges or cash flow hedges pursuant to the provisions of SFAS 133. We hedge the fair value of our Notes using interest rate swaps. We enter into these derivative contracts to manage fair value changes which could be caused by our exposure to interest rate changes. On September 2, 2003, we entered into interest rate swap agreements, designated as fair value hedges as defined under SFAS 133 with an aggregate notional amount totaling $150 million. The agreements were entered to exchange the fixed interest rate on the Notes for a variable interest rate equal to six-month LIBOR, set in arrears, plus a spread ranging from 2.735% to 2.75% fixed semi-annually on the fifteenth of February and August. The agreements are subject to other terms and conditions common to transactions of this type. These fair value hedges qualify for hedge accounting using the short-cut method since the swap terms match the critical terms of the Notes. Accordingly, changes in the fair value of the interest rate swap agreements offset changes in 162 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) the fair value of the Notes due to changes in the market interest rate. As a result, no ineffectiveness is expected to be recognized in our earnings associated with the interest rate swap agreements on the Notes. The fair values of our interest rate swap agreements are obtained from dealer quotes and represent the estimated amount we would receive or pay to terminate the agreement, taking into consideration the difference between the contract rate of interest and rates currently quoted for agreements of similar terms and maturities. NOTE 8 - INFORMATION CONCERNING BUSINESS SEGMENTS AND GEOGRAPHICAL SALES We are a leading manufacturer and provider of security products, vehicle armor systems, and security training services. Our products and services are used by military, law enforcement, security and corrections personnel throughout the world, as well as governmental agencies, multinational corporations and non-governmental organizations. Our continuing operations are organized and operated under two business segments: Armor Holdings Products and Armor Mobile Security. Our Services Division has been classified as discontinued operations and is no longer included in this presentation (See Note 2). Armor Holdings Products. Our Armor Holdings Products Division manufactures and sells a broad range of high quality equipment marketed under brand names that are well known and respected in the military and law enforcement communities. Products manufactured by this division include concealable and tactical body armor, hard armor, duty gear, less-lethal munitions, anti-riot products, police batons, emergency lighting products, forensic products, firearms accessories and weapon maintenance products. Armor Mobile Security. Our Armor Mobile Security Division manufactures and installs ballistic and blast protection armoring systems for military vehicles, commercial vehicles, military aircraft and missile components. Under the brand name O'Gara-Hess & Eisenhardt ("O'Gara"), we are the sole-source provider to the U.S. military for the supply of armoring and blast protection systems as well as maintenance services for the High Mobility Multi-purpose Wheeled Vehicle (HMMWV, commonly known as the Humvee). Additionally, we have been subcontracted to develop a ballistically armored and sealed truck cab for the High Mobility Artillery Rocket System (HIMARS) a program currently in low-rate initial production for the U.S. Army. We armor a variety of commercial vehicles including limousines, sedans, sport utility vehicles, commercial trucks and cash-in-transit vehicles, to protect against varying degrees of ballistic and blast threats. The Armor Mobile Security Division was created in connection with our acquisition of O'Gara on August 22, 2001 (the "O'Gara acquisition"). We have invested substantial resources outside of the United States and plan to continue to do so in the future. The Armor Mobile Security Division has invested substantial resources in Europe and South America. These operations are subject to the risk of new and different legal and regulatory requirements in local jurisdictions, tariffs and trade barriers, potential difficulties in staffing and managing local operations, currency risks, potential imposition of restrictions on investments, potentially adverse tax consequences, including imposition or increase of withholding 163 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) and other taxes on remittances and other payments by subsidiaries, and local economic, political and social conditions. Governments of many developing countries have exercised and continue to exercise substantial influence over many aspects of the private sector. Government actions in the future could have a significant adverse effect on economic conditions in a developing country or may otherwise have a material adverse effect on us and our operating companies. We do not have political risk insurance in the countries in which we currently conduct business. Moreover, applicable agreements relating to our interests in our operating companies are frequently governed by foreign law. As a result, in the event of a dispute, it may be difficult for us to enforce our rights. Accordingly, we may have little or no recourse upon the occurrence of any of these developments. Revenues, operating income and total assets for each of our continuing operating segments are as follows (net of intercompany eliminations):
NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 -------------------------- ------------------------- (IN THOUSANDS) Revenues: Products $ 144,140 $ 131,049 Mobile Security 108,875 90,717 ------------ ------------ Total revenues $ 253,015 $ 221,766 ============ ============ Operating income (loss): Products $ 24,619 $ 24,068 Mobile Security 13,491 9,156 Corporate (10,762) (5,674) ------------ ------------ Total operating income $ 27,348 $ 27,550 ============ ============ Total assets: Products $ 177,754 $ 176,951 Mobile Security 115,801 112,136 Corporate 179,835 18,777 ------------ ------------ Total assets $ 473,390 $ 307,864 ============ ============
164 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) The following unaudited information with respect to revenues, operating income from continuing operations (geographic operating income from continuing operations before amortization expense and integration and other non-recurring charges) and total assets to principal geographic areas are as follows:
NINE MONTHS ENDED SEPTEMBER 2003 SEPTEMBER 30, 2002 ------------------------ ------------------------- (IN THOUSANDS) Revenues: North America $ 186,754 $ 157,069 South America 10,547 21,983 Africa 1,578 1,344 Europe/Asia 54,136 41,370 --------- --------- Total revenue $ 253,015 $ 221,766 ========= ========= Geographic operating income: North America $ 24,973 $ 23,928 South America 618 1,690 Africa 377 430 Europe/Asia 6,146 6,191 --------- --------- Total geographic operating income $ 32,114 $ 32,239 ========= ========= Total assets: North America $ 419,966 $ 258,123 South America 6,301 9,856 Africa - - Europe/Asia 47,123 39,885 --------- --------- Total assets $ 473,390 $ 307,864 ========= =========
A reconciliation of consolidated geographic operating income from continuing operations to consolidated operating income from continuing operations follows:
NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------------ ------------------------ (IN THOUSANDS) Consolidated geographic operating income $ 32,114 $ 32,239 Amortization (201) (213) Integration and other non-recurring charges (4,565) (4,476) --------- -------- Operating income $ 27,348 $ 27,550 ========= ========
165 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 9 - EARNINGS PER SHARE The following details the numerators and denominators of the basic and diluted earnings per share computations for net income from continuing operations:
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------ ------------------ ------------------ ------------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) Numerator for basic and diluted earnings per share: Income from continuing operations $ 6,109 $ 2,964 $ 14,832 $ 13,355 -------- ------- -------- -------- Denominator for basic earnings per share - - weighted average shares outstanding: 27,811 29,708 28,106 30,639 Effect of shares issuable under stock option and stock grant plans, based on the treasury stock method 438 329 332 734 -------- ------- -------- -------- Denominator for diluted earnings per share- Adjusted weighted average shares outstanding 28,249 30,037 28,438 31,373 -------- ------- -------- -------- Basic earnings per share from $ 0.22 $ 0.10 $ 0.52 $ 0.44 ======== ======= ======== ======= Diluted earnings per share from continuing operations $ 0.22 $ 0.10 $ 0.52 $ 0.43 ======== ======= ======== =======
166 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 10 - NEW ACCOUNTING PRONOUNCEMENTS In November 2002, the FASB issued FASB Interpretation No. 45 Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others, an Interpretation of FASB Statements No. 5, 57, and 107 and Rescission of FASB Interpretation No. 34 ("FIN 45"). FIN 45 elaborates on the disclosures to be made by a guarantor in its interim and annual financial statements about its obligations under certain guarantees that it has issued. It also clarifies that a guarantor is required to recognize, at the inception of a guarantee, a liability for the fair value of the obligation undertaken in issuing the guarantee. The initial recognition and initial measurement provisions of FIN 45 are applicable on a prospective basis to guarantees issued or modified after December 31, 2002, irrespective of the guarantor's fiscal year-end. We adopted the provisions of this Statement on January 1, 2003, which did not have a significant impact on our consolidated financial statements. In January 2003, the FASB issued FASB Interpretation No. 46, Consolidation of Variable-Interest Entities - an Interpretation of ARB No. 51 ("FIN 46"). FIN 46 addresses consolidation by business enterprises of variable interest entities, which have one or both of the following characteristics: (1) the equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support from other parties, which is provided through other interests that will absorb some or all of the expected losses of the entity and (2) the equity investors lack one or more of the following essential characteristics of a controlling financial interest: o The direct or indirect ability to make decisions about the entity's activities through voting rights or similar rights o The obligation to absorb the expected losses of the entity if they occur, which makes it possible for the entity to finance its activities o The right to receive the expected residual returns of the entity if they occur, which is the compensation for the risk of absorbing the expected losses. This Interpretation applies immediately to variable interest entities created after January 31, 2003, and to variable interest entities in which an enterprise obtains an interest after that date. It applies in the first fiscal year or interim period beginning after June 15, 2003, to variable interest entities in which an enterprise holds a variable interest that it acquired before February 1, 2003. The adoption of FIN 46 did not have a significant impact on our consolidated financial statements. 167 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) In April 2003, the FASB issued Statement of Financial Accounting Standard No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities" (SFAS 149). SFAS 149 amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts and for hedging activities under Statement of Financial Accounting Standard No. 133, "Accounting for Derivative Instruments and Hedging Activities" (SFAS 133). SFAS 149 is effective for contracts entered into or modified and hedging relationships designated after June 30, 2003, except for the provisions of SFAS 149 that relate to SFAS 133 Implementation Issues that have been effective for fiscal quarters that began prior to June 15, 2003, which should continue to be applied in accordance with their respective effective dates. Adoption of this standard had no effect on us. In May 2003, the FASB issued Statement of Financial Accounting Standard No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity" (SFAS 150). SFAS 150 establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability (or an asset in some circumstances). Many of those instruments were previously classified as equity. SFAS 150 is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. Adoption of this standard had no effect on us. In September 2003, the FASB issued FASB Staff Position No. 146-1, Determining Whether a One-Time Termination Benefit Offered in Connection with an Exit or Disposal Activity Is, in Substance, an Enhancement to an Ongoing Benefit Arrangement. This Staff Position states that in order to be considered an enhancement to an ongoing benefit arrangement, the additional termination benefits must represent a revision to the ongoing arrangement that is not limited to a specified termination event or a specified future period. Otherwise the additional termination benefits should be considered one-time termination benefits and accounted for under SFAS 146. The guidance in this Staff Position is effective for exit or disposal activities initiated in interim or annual reporting periods beginning after September 15, 2003. The adoption of this Staff Position is not expected to have a material impact on our consolidated financial statements. In October 2003, the FASB issued FASB Staff Position No. FIN 46-6, Effective Date of FASB Interpretation No. 46, Consolidation of Variable Interest Entities. This Staff Position defers the effective date for applying the provisions of FIN 46 for interests held by public entities in variable interest entities or potential variable interest entities created before February 1, 2003 and non-registered investment companies. This adoption of this Staff Position is not expected to have a material impact on our consolidated financial statements. 168 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 11 - STOCKHOLDERS' EQUITY Statement of Financial Accounting Standard No. 123, "Accounting for Stock-Based Compensation" (SFAS 123), as amended by SFAS 148, "Accounting for Stock-Based Compensation - Transition and Disclosure," establishes a fair value based method of accounting for stock-based employee compensation plans; however, it also allows an entity to continue to measure compensation cost for those plans using the intrinsic value based method of accounting prescribed by Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" (APB 25). Under the fair value based method, compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period. Under the intrinsic value based method, compensation costs is the excess, if any, of the quoted market price of the stock at the grant date or other measurement date over the amount an employee must pay to acquire the stock. We have elected to continue to account for our employee stock compensation plans under APB 25 with pro forma disclosures of net earnings and earnings per share, as if the fair value based method of accounting defined in SFAS 123 had been applied. If compensation cost for stock option grants had been determined based on the fair value on the grant dates for September 30, 2003 and 2002 consistent with the method prescribed by SFAS 123, our net earnings and earnings per share would have been adjusted to the pro forma amounts indicated below:
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 SEPTEMBER 30, 2003 SEPTEMBER 30, 2002 ------------------ ------------------ ------------------ ------------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) Net income (loss) as reported: $ 6,115 $(14,707) $ 15,815 $ (4,672) Deduct: Total stock-based employee compensation expense determined under fair value based method for all awards, net of related tax effects (671) (1,699) (2,985) (3,434) ------- -------- -------- -------- Pro-forma net income (loss) $ 5,444 $(16,406) $ 12,830 $ (8,106) ======= ======== ======== ======== Earnings (loss) per share: Basic - as reported $ 0.22 $ (0.50) $ 0.56 $ (0.15) ======= ======== ======== ======== Basic - pro-forma $ 0.20 $ (0.55) $ 0.46 $ (0.26) ======= ======== ======== ======== Diluted - as reported $ 0.22 $ (0.49) $ 0.56 $ (0.15) ======= ======== ======== ======== Diluted - pro-forma $ 0.19 $ (0.55) $ 0.45 $ (0.26) ======= ======== ======== ========
169 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 12 - LEGAL PROCEEDINGS On or about March 22, 2002, O'Gara-Hess & Eisenhardt Armoring Company (OHEAC), one of our subsidiaries, received a civil subpoena from the Department of Defense (DOD) requesting documents and information concerning various quality control documentation regarding parts delivered by its subcontractors and vendors in support of the HMMWV armored at its Fairfield, Ohio facility for the period October 1, 1999 through May 1, 2001. OHEAC has complied fully with the subpoena. In early 2003, OHEAC was advised that the Department of Justice (DOJ) was also investigating separate claims against OHEAC filed by individuals that involve the same time frame and issues covered by the DOD subpoena. OHEAC has learned that the DOJ investigation relates to a certain unidentified action filed under the federal False Claims Act pursuant to which the United States government may intervene and recover damages. OHEAC has fully responded to, and cooperated with, the government's questions and investigation. The DOJ has since notified OHEAC that it has declined to intervene in the case. On September 30, 2003, the action filed under the federal False Claims Act was voluntarily withdrawn without prejudice. In October 2002, we were sued in the United States District Court for the District of Wyoming. The plaintiffs in that lawsuit asserted various state law tort claims and federal environmental law claims under the Resource Conservation and Recovery Act and the Clean Air Act stemming from one of our subsidiaries' Casper, Wyoming tear gas plant. The plaintiffs have not yet quantified their alleged damages. The plaintiffs filed their suit as a potential class action. On June 19, 2003, the court denied plaintiff's motion for class certification. The alleged actions took place over time periods during which we were covered by different insurance policies. We have notified our insurance carriers of the suit. Our prior insurance carrier has agreed, under a full reservation of rights, including with respect to any liability which relates to the time its policy was in effect, to provide a defense and to address the question of liability indemnification in the future. Our current insurance carrier has declined defense and indemnification coverage. While we do not carry specific environment insurance coverage, we have reserved the right to challenge our insurance carrier's determination. The case is currently pending, and while we are contesting the allegations vigorously, we are unable to predict the outcome of this matter. At this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. Reference is made to Note 10, Commitments and Contingencies, in our Annual Report on Form 10-K for the year ended December 31, 2002, and Note 10, Legal Proceedings in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2003 for a description of other legal proceedings. 170 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 13 -GUARANTOR AND NONGUARANTOR FINANCIAL STATEMENTS On August 12, 2003 we sold $150 million of Senior Subordinated Notes in private placements pursuant to Rule 144A and Regulation S. The Senior Subordinated Notes are uncollateralized obligations and rank junior in right of payment to our existing and future senior debt. The Senior Subordinated Notes are guaranteed, jointly and severally on a senior uncollateralized basis, by all of our domestic subsidiaries, except USDS, Inc. The following consolidated condensed financial information presents the consolidated condensed balance sheet as of September 30, 2003 and December 31, 2002, the related condensed statements of income for each of the three and nine month periods ended September 30, 2003 and September 30, 2002 and the related condensed statements of cash flows for the nine month periods ended September 30, 2003 and September 30, 2002 for: a) Armor Holdings, Inc., the parent, b) the guarantor subsidiaries, c) the nonguarantor subsidiaries, and d) Armor Holdings, Inc. on a consolidated basis The information includes elimination entries necessary to consolidate Armor Holdings, Inc., the parent, with the guarantor and nonguarantor subsidiaries. Investments in subsidiaries are accounted for by the parent using the equity method of accounting. The guarantor and nonguarantor subsidiaries are presented on a combined basis. The principal elimination entries eliminate investments in subsidiaries and intercompany balances and transactions. Separate financial statements for the guarantor and nonguarantor subsidiaries are not presented because management believes such financial statements would not be meaningful to investors. 171 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING BALANCE SHEETS
SEPTEMBER 30, 2003 -------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ------------ --------------- ------------- ------------- (IN THOUSANDS) ASSETS Current Assets: Cash and cash equivalents $144,037 $ 2,620 $ 8,109 $ -- $ 154,766 Accounts receivable, net -- 47,925 11,290 -- 59,215 Costs and earned gross profit in excess of billings -- 1,088 -- -- 1,088 Intercompany receivables 86,614 50,744 5,661 (143,019) -- Inventories -- 45,296 14,772 -- 60,068 Prepaid expenses and other current assets 19,520 12,931 3,271 (14,401) 21,321 Current assets of discontinued operations -- 7,971 39,987 -- 47,958 -------- -------- -------- ---------- --------- Total Current Assets 250,171 168,575 83,090 (157,420) 344,416 Property and equipment, net 2,183 27,742 19,606 -- 49,531 Goodwill, net -- 97,002 1,932 -- 98,934 Patents, licenses and trademarks, net -- 7,233 186 -- 7,419 Other assets 20,903 232 (87) -- 21,048 Long-term assets of discontinued operations -- 7,205 12,840 -- 20,045 Investment in subsidiaries 197,975 10,007 21,734 (229,716) -- -------- -------- -------- ---------- --------- Total Assets $471,232 $317,996 $139,301 $ (387,136) $ 541,393 ======== ======== ======== ========== ========= LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Current portion of long-term debt $ -- $ 765 $ -- $ -- $ 765 Short-term debt -- -- 608 -- 608 Accounts payable 215 15,988 5,810 -- 22,013 Accrued expenses and other current liabilities 8,335 13,102 17,528 -- 38,965 Income taxes payable 2,604 -- 1,310 -- 3,914 Intercompany payables 13,424 99,192 11,658 (124,274) -- Current liabilities of discontinued operations -- 8,047 34,515 (18,745) 23,942 -------- -------- -------- ---------- --------- Total Current Liabilities 24,578 137,094 71,429 (143,019) 90,207 Long-term debt, less current portion 155,514 4,407 -- -- 159,921 Long-term liabilities of discontinued operations -- 2,778 11,873 (14,401) 125 -------- -------- -------- ---------- --------- Total Liabilities 180,092 144,279 83,302 (157,420) 250,253 Stockholders' Equity: Preferred stock -- 1,450 -- (1,450) -- Common stock 342 5,523 26,314 (31,837) 342 Additional paid in capital 315,148 71,816 31,615 (103,431) 315,148 Retained earnings (accumulated deficit) 49,871 94,928 (1,930) (92,998) 49,871 Accumulated other comprehensive loss (1,904) -- -- -- (1,904) Treasury stock (72,317) -- -- -- (72,317) -------- -------- -------- ---------- --------- Total Stockholders' Equity 291,140 173,717 55,999 (229,716) 291,140 -------- -------- -------- ---------- --------- Total Liabilities and Stockholders' Equity $471,232 $317,996 $139,301 $ (387,136) $ 541,393 ======== ======== ======== ========== =========
172 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 2002 -------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ------------ --------------- ------------- ------------- (IN THOUSANDS) ASSETS Current Assets: Cash and cash equivalents $ 7,152 $ 3,556 $ 2,205 $ -- $ 12,913 Accounts receivable, net -- 44,864 13,649 -- 58,513 Costs and earned gross profit in excess of billings -- 234 -- -- 234 Intercompany receivables 123,744 33,165 3,800 (160,709) -- Inventories -- 46,591 15,739 -- 62,330 Prepaid expenses and other current assets 12,490 21,999 2,368 (24,645) 12,212 Current assets of discontinued operations -- 10,351 18,474 -- 28,825 -------- -------- --------- ---------- --------- Total Current Assets 143,386 160,760 56,235 (185,354) 175,027 Property and equipment, net 2,456 27,250 17,430 -- 47,136 Goodwill, net -- 96,903 1,833 -- 98,736 Patents, licenses and trademarks, net -- 7,326 195 -- 7,521 Other assets 916 6,872 1,260 -- 9,048 Long-term assets of discontinued operations -- 6,910 23,375 -- 30,285 Investment in subsidiaries 161,805 10,078 -- (171,883) -- -------- -------- --------- ---------- --------- Total Assets $308,563 $316,099 $ 100,328 $(357,237) $ 367,753 ======== ======== ========= ========== ========= LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Current portion of long-term debt $ -- $ 1,813 $ -- $ -- $ 1,813 Short-term debt -- -- 599 -- 599 Accounts payable 828 15,751 7,191 -- 23,770 Accrued expenses and other current liabilities 1,790 11,324 12,002 -- 25,116 Income taxes payable 4,831 (148) 1,230 -- 5,913 Intercompany payables 13,037 115,658 10,434 (139,129) -- Current liabilities of discontinued operations -- 14,267 24,538 (21,580) 17,225 -------- -------- --------- ---------- --------- Total Current Liabilities 20,486 158,665 55,994 (160,709) 74,436 Long-term debt, less current portion -- 5,072 -- -- 5,072 Long-term liabilities of discontinued operations -- 13,022 11,791 (24,645) 168 -------- -------- --------- ---------- --------- Total Liabilities 20,486 176,759 67,785 (185,354) 79,676 Stockholders' Equity: Preferred stock -- 1,450 -- (1,450) -- Common stock 336 5,681 26,318 (31,999) 336 Additional paid in capital 307,487 73,836 10,016 (83,852) 307,487 Retained earnings (accumulated deficit) 34,056 58,373 (3,791) (54,582) 34,056 Accumulated other comprehensive loss (4,169) -- -- -- (4,169) Treasury stock (49,633) -- -- -- (49,633) -------- -------- --------- ---------- --------- Total Stockholders' Equity 288,077 139,340 32,543 (171,883) 288,077 -------- -------- --------- ---------- --------- Total Liabilities and Stockholders' Equity $308,563 $316,099 $ 100,328 $ (357,237) $ 367,753 ======== ======== ========= ========== =========
173 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING INCOME STATEMENTS
THREE MONTHS ENDED SEPTEMBER 30, 2003 ----------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ----------- -------------- ------------- ------------- (IN THOUSANDS) REVENUES: Products $ -- $ 42,110 $ 8,676 $ -- $ 50,786 Mobile Security -- 24,338 15,758 -- 40,096 ---------- ----------- -------------- ------------- ------------- Total revenues -- 66,448 24,434 -- 90,882 ---------- ----------- -------------- ------------- ------------- COSTS AND EXPENSES: Cost of sales -- 42,120 19,833 -- 61,953 Operating expenses 2,661 10,945 2,371 -- 15,977 Amortization -- 69 3 -- 72 Integration and other non-recurring charges 107 261 -- -- 368 Related party management (income) fees (1,859) -- 2,339 (480) -- ---------- ----------- -------------- ------------- ------------- OPERATING (LOSS) INCOME (909) 13,053 (112) 480 12,512 Interest expense, net 1,371 59 45 -- 1,475 Other expense (income), net -- 129 (33) -- 96 Equity in (earnings) losses of subsidiaries (7,603) 256 -- 7,347 -- ---------- ----------- -------------- ------------- ------------- INCOME (LOSS) FROM CONTINUING OPERATIONS BEFORE PROVISION (BENEFIT) FOR INCOME TAXES 5,323 12,609 (124) (6,867) 10,941 PROVISION (BENEFIT) FOR INCOME TAXES (792) 4,748 876 -- 4,832 ---------- ----------- -------------- ------------- ------------- INCOME (LOSS) FROM CONTINUING OPERATIONS 6,115 7,861 (1,000) (6,867) 6,109 DISCONTINUED OPERATIONS: Income from discontinued operations before provision for income taxes -- 1,697 462 (480) 1,679 Provision for income taxes -- 702 971 -- 1,673 ---------- ----------- -------------- ------------- ------------- Net income (loss) from discontinued operations -- 995 (509) (480) 6 ---------- ----------- -------------- ------------- ------------- NET INCOME (LOSS) $ 6,115 $ 8,856 $ (1,509) $ (7,347) $ 6,115 ========== =========== ============== ============= =============
174 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING INCOME STATEMENTS
THREE MONTHS ENDED SEPTEMBER 30, 2002 ---------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ----------- ----------- ---------------- -------------- ------------- (IN THOUSANDS) REVENUES: Products $ -- $ 41,763 $ 7,284 $ $ 49,047 Mobile Security -- 21,282 10,228 -- 31,510 ----------- ----------- ---------------- -------------- ------------- Total revenues -- 63,045 17,512 -- 80,557 ----------- ----------- ---------------- -------------- ------------- COSTS AND EXPENSES: Cost of sales -- 41,269 14,678 -- 55,947 Operating expenses 1,552 9,417 1,883 -- 12,852 Amortization -- 62 -- -- 62 Integration and other non-recurring charges 335 1,024 -- -- 1,359 ----------- ----------- ---------------- -------------- ------------- OPERATING (LOSS) INCOME (1,887) 11,273 951 -- 10,337 Interest expense, net 230 45 68 -- 343 Other (income) expense, net -- (38) 25 -- (13) Equity in losses of subsidiaries 9,611 92 -- (9,703) -- Related parting interest income, net -- 122 -- (122) -- ----------- ----------- ---------------- -------------- ------------- (LOSS) INCOME FROM CONTINUING OPERATIONS BEFORE PROVISION FOR INCOME TAXES (11,728) 11,052 858 9,825 10,007 PROVISION FOR INCOME TAXES 2,979 3,781 283 -- 7,043 ----------- ----------- ---------------- -------------- ------------- (LOSS) INCOME FROM CONTINUING OPERATIONS (14,707) 7,271 575 9,825 2,964 ----------- ----------- ---------------- -------------- ------------- DISCONTINUED OPERATIONS: Loss from discontinued operations before provision for income taxes -- (14,361) (2,549) (122) (17,032) Provision for income taxes -- 29 610 -- 639 ----------- ----------- ---------------- -------------- ------------- Net loss from discontinued operations -- (14,390) (3,159) (122) (17,671) ----------- ----------- ---------------- -------------- ------------- NET LOSS $ (14,707) $ (7,119) $ (2,584) $ 9,703 $ (14,707) =========== =========== ================ ============== =============
175 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING INCOME STATEMENTS
NINE MONTHS ENDED SEPTEMBER 30, 2003 ----------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ------------ ----------- ----------------- ------------- ------------- (IN THOUSANDS) REVENUES: Products $ -- $ 117,863 $ 26,277 $ -- $ 144,140 Mobile Security -- 63,110 45,765 -- 108,875 ------------ ----------- ----------------- ------------- ------------- Total revenues -- 180,973 72,042 -- 253,015 ------------ ----------- ----------------- ------------- ------------- COSTS AND EXPENSES: Cost of sales -- 117,278 59,118 -- 176,396 Operating expenses 7,203 29,732 7,570 -- 44,505 Amortization -- 193 8 -- 201 Integration and other non-recurring charges 3,456 1,109 -- -- 4,565 Related party management (income) fees (1,859) -- 2,339 (480) -- ------------ ----------- ----------------- ------------- ------------- OPERATING (LOSS) INCOME (8,800) 32,661 3,007 -- 27,348 Interest expense, net 1,866 250 175 -- 2,291 Other expense, net -- 131 50 -- 181 Equity in (earnings) losses of subsidiaries (22,688) 419 -- 22,269 -- Related parting interest expense (income), net 16 (16) -- -- -- ------------ ----------- ----------------- ------------- ------------- INCOME FROM CONTINUING OPERATIONS BEFORE PROVISION (BENEFIT) FOR INCOME TAXES 12,006 31,877 2,782 (21,789) 24,876 PROVISION (BENEFIT) FOR INCOME TAXES (3,809) 12,011 1,842 -- 10,044 ------------ ----------- ----------------- ------------- ------------- INCOME FROM CONTINUING OPERATIONS 15,815 19,866 940 (21,789) 14,832 ------------ ----------- ----------------- ------------- ------------- DISCONTINUED OPERATIONS: Income from discontinued operations before provision for income taxes -- 1,480 2,593 (480) 3,593 Provision for income taxes -- 938 1,672 -- 2,610 ------------ ----------- ----------------- ------------- ------------- Net income from discontinued operations -- 542 921 (480) 983 ------------ ----------- ----------------- ------------- ------------- NET INCOME $ 15,815 $ 20,408 $ 1,861 $ (22,269) $ 15,815 ============ =========== ================= ============= =============
176 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING INCOME STATEMENTS
NINE MONTHS ENDED SEPTEMBER 30, 2002 ----------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ----------- -------------- -------------- -------------- ------------- (IN THOUSANDS) REVENUES: Products $ -- $ 112,437 $ 18,612 $ -- $ 131,049 Mobile Security -- 57,439 33,278 -- 90,717 ----------- -------------- -------------- -------------- ------------- Total revenues -- 169,876 51,890 -- 221,766 ----------- -------------- -------------- -------------- ------------- COSTS AND EXPENSES: Cost of sales -- 109,621 42,860 -- 152,481 Operating expenses 4,866 27,073 5,107 -- 37,046 Amortization -- 213 -- -- 213 Integration and other non-recurring charges 687 3,789 -- -- 4,476 Related party income -- -- -- -- -- ----------- -------------- -------------- -------------- ------------- OPERATING (LOSS) INCOME (5,553) 29,180 3,923 -- 27,550 Interest expense, net 361 161 147 -- 669 Other income, net (2) (21) (54) -- (77) Equity in earnings of subsidiaries (2,898) (1,087) -- 3,985 -- Related party interest income, net -- (102) -- 102 -- ----------- -------------- -------------- -------------- ------------- (LOSS) INCOME FROM CONTINUING OPERATIONS BEFORE PROVISION FOR INCOME TAXES (3,014) 30,229 3,830 (4,087) 26,958 PROVISION FOR INCOME TAXES 1,658 10,597 1,348 -- 13,603 ----------- -------------- -------------- -------------- ------------- (LOSS) INCOME FROM CONTINUING OPERATIONS (4,672) 19,632 2,482 (4,087) 13,355 ----------- -------------- -------------- -------------- ------------- DISCONTINUED OPERATIONS: Loss from discontinued operations before income tax (benefit) provision -- (14,015) (3,693) 102 (17,606) Income tax (benefit) provision -- (722) 1,143 -- 421 ----------- -------------- -------------- -------------- ------------- Net loss from discontinued operations -- (13,293) (4,836) 102 (18,027) ----------- -------------- -------------- -------------- ------------- NET (LOSS) INCOME $ (4,672) $ 6,339 $ (2,354) $ (3,985) $ (4,672) =========== ============== ============== ============== =============
177 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 2003 ------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ------------ ------------ -------------- ------------- ------------- (IN THOUSANDS) CASH FLOWS FROM OPERATING ACTIVITIES: Income from continuing operations $ 15,815 $ 19,866 $ 940 $ (21,789) $ 14,832 Adjustments to reconcile income from continuing operations to cash provided by operating activities. Depreciation and amortization 974 2,972 1,434 -- 5,380 Loss on disposal of fixed assets -- 58 109 -- 167 Deferred income taxes (4,379) 6,428 1,627 -- 3,676 Non-cash termination charge 2,093 -- -- -- 2,093 Changes in operating assets & liabilities, net of acquisitions: (Increase) decrease in accounts receivable -- (3,915) 2,359 -- (1,556) Decrease (increase) in intercompany receivables & payables 19,723 (19,090) (153) (480) -- Decrease in inventory -- 1,206 967 -- 2,173 (Increase) decrease in prepaid expenses & other assets (7,347) 4,848 (1,183) -- (3,682) Increase in accounts payable, accrued expenses and other current liabilities 5,043 2,620 4,145 -- 11,808 (Decrease) increase in income taxes payable (2,227) 148 80 -- (1,999) ------------ ------------ -------------- ------------- ------------- Net cash provided by operating activities 29,695 15,141 10,325 (22,269) 32,892 ------------ ------------ -------------- ------------- ------------- CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment (126) (3,330) (2,189) -- (5,645) Purchase of patents and trademarks -- (99) -- -- (99) Additional consideration for purchased businesses -- (740) -- -- (740) Investment in subsidiaries (22,337) 203 (135) 22,269 -- Purchase of businesses, net of cash acquired -- (5,828) -- -- (5,828) ------------ ------------ -------------- ------------- ------------- Net cash used in investing activities (22,463) (9,794) (2,324) 22,269 (12,312) ------------ ------------ -------------- ------------- ------------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from exercise of stock options 6,588 -- -- -- 6,588 Treasury stock repurchases (22,684) -- -- -- (22,684) Cash paid for financing costs (4,020) -- -- -- (4,020) Proceeds from the issuance of long-term debt 147,504 -- -- -- 147,504 Repayments of long-term debt -- (1,399) -- -- (1,399) Borrowings under lines of credit 30,406 168 1,170 -- 31,744 Repayments under lines of credit (30,406) (484) (1,180) -- (32,070) ------------ ------------ -------------- ------------- ------------- Net cash provided by (used in) financing activities 127,388 (1,715) (10) -- 125,663 ------------ ------------ -------------- ------------- ------------- Effect of exchange rate on cash and cash equivalents 2,265 (186) (1,601) -- 478 Net cash used in discontinued operations -- (4,382) (486) -- (4,868) ------------ ------------ -------------- ------------- ------------- NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 136,885 (936) 5,904 -- 141,853 CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 7,152 3,556 2,205 -- 12,913 ------------ ------------ -------------- ------------- ------------- CASH AND CASH EQUIVALENTS, END OF PERIOD $ 144,037 $ 2,620 $ 8,109 $ -- $ 154,766 ============ ============ ============== ============= =============
178 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) ARMOR HOLDINGS INC. AND SUBSIDIARIES CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 2002 ------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ------------ ------------ -------------- ------------- ------------- (IN THOUSANDS) CASH FLOWS FROM OPERATING ACTIVITIES: Income from continuing operations $ (4,672) $ 19,632 $ 2,650 $ (4,255) $ 13,355 Adjustments to reconcile income from continuing operations to cash used in operating activities. Depreciation and amortization 625 2,764 660 -- 4,049 Loss on disposal of fixed assets -- 37 99 -- 136 Deferred taxes (3,927) 1,592 1,655 -- (680) Changes in operating assets & liabilities, net of acquisitions: (Increase) decrease in accounts receivable -- (5,890) 2,760 -- (3,130) (Increase) decrease in intercompany receivables & payables (5,414) 8,148 (3,004) 270 -- Increase in inventory -- (6,692) (3,511) -- (10,203) Increase in prepaid expenses & other assets (313) (2,898) (358) -- (3,569) Decrease in accounts payable, accrued expenses and other current liabilities (1,539) (1,490) (3,746) -- (6,775) Increase in income taxes payable 4,724 -- 1,621 -- 6,345 ------------ ------------ -------------- ------------- ------------- Net cash (used in) provided by operating activities (10,516) 15,203 (1,174) (3,985) (472) ------------ ------------ -------------- ------------- ------------- CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment (70) (3,044) (1,434) -- (4,548) Purchase of patents and trademarks -- (45) -- -- (45) Additional consideration for purchased businesses -- (2,652) -- -- (2,652) Investment in subsidiaries (7,166) (5,540) 8,721 3,985 -- Purchase of businesses, net of cash acquired -- (5,916) (1,495) -- (7,411) ------------ ------------ -------------- ------------- ------------- Net cash (used in) provided by investing activities (7,236) (17,197) 5,792 3,985 (14,656) ------------ ------------ -------------- ------------- ------------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from exercise of stock options 4,237 -- -- -- 4,237 Treasury stock purchases ((26,054) -- -- -- (26,054) Cash paid for financing costs (326) -- -- -- (326) Repayments of long-term debt -- (591) -- -- (591) Borrowings under lines of credit 27,763 -- -- -- 27,763 Repayments under lines of credit (20,563) -- (138) -- (20,701) ------------ ------------ -------------- ------------- ------------- Net cash provided by (used in) financing activities (14,943) (591) (138) -- (15,672) ------------ ------------ -------------- ------------- ------------- Effect of exchange rate on cash and cash equivalents (851) (385) 364 -- (872) Net cash transferred from (used in) discontinued operations -- 2,306 (1,539) -- 767 ------------ ------------ -------------- ------------- ------------- NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (33,546) (664) 3,305 -- (30,905) CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 38,627 5,536 3,326 -- 47,489 ------------ ------------ -------------- ------------- ------------- CASH AND CASH EQUIVALENTS, END OF PERIOD $ 5,081 $ 4,872 $6,631 $ -- $ 16,584 ============ ============ ============== ============= =============
179 NOTES TO UNAUDITED CONDENSED AND CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTE 14 - COMMITMENTS AND CONTINGENCIES On September 2, 2003, we entered into a definitive Agreement and Plan of Merger to acquire Simula, Inc., for $110.5 million, subject to adjustment based on various factors, payable in cash or, at our option, in a combination of cash and registered shares of our common stock. Upon consummation of the acquisition, we will acquire all of the outstanding common stock of Simula, retire Simula's outstanding indebtedness, and assume all liabilities of Simula. The Agreement provides for a good faith deposit, payment of a break-up fee if Simula accepts a competing offer, and other terms customary for similar transactions. The acquisition is subject to, among other conditions, the approval of Simula's stockholders. In connection with the acquisition, we registered approximately 2.3 million shares of common stock on a Form S-4 with the Securities and Exchange Commission. The registration statement was declared effective on November 10, 2003. We anticipate completion of the acquisition in the fourth quarter of 2003. NOTE 15 - SUBSEQUENT EVENT On July 26, 2003, we awarded Warren B. Kanders, our Chairman and Chief Executive Officer, a stock bonus award of 200,000 shares of our common stock in accordance with his amended employment agreement. On November 4, 2003, we awarded Robert R. Schiller, our Chief Operating Officer and Chief Financial Officer, a stock bonus award of 150,000 shares of our common stock in accordance with his amended employment agreement. On November 11, 2003, our stock price closed above $20 for the fifth consecutive trading day, which caused the complete vesting of the stock bonus awards. The complete vesting of the stock bonus awards results in a charge of $7.3 million, which will be recorded in the three months ended December 31, 2003. The payment of the stock bonus awards to Messrs. Kanders and Schiller will be deferred for a period of five years after November 11, 2003, subject to acceleration under certain circumstances as set forth in their respective employment agreements, as amended. 180 ARMOR HOLDINGS, INC. AND SUBSIDIARIES AUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS FOR THE FISCAL YEAR ENDED DECEMBER 31, 2002 REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS To the Board of Directors and Stockholders of Armor Holdings, Inc.: In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of income, stockholders' equity and comprehensive income, and cash flows present fairly, in all material respects, the financial position of Armor Holdings, Inc. and its subsidiaries at December 31, 2002 and 2001, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2002 in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with auditing standards generally accepted in the United States of America, which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. As discussed in Note 1 to the consolidated financial statements, effective January 1, 2002, the Company changed its method of accounting for goodwill following adoption of Statement of Financial Accounting Standard No. 142 "Goodwill and Other Intangible Assets." PricewaterhouseCoopers LLP Jacksonville, Florida March 30, 2003, except for Note 20 and Note 21, as to which the date is January 6, 2004. 181 ARMOR HOLDINGS INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS AS OF DECEMBER 31, 2002 AND DECEMBER 31, 2001 (IN THOUSANDS, EXCEPT FOR SHARE DATA)
DECEMBER 31, 2002 DECEMBER 31, 2001 ------------------ ------------------ ASSETS Current Assets: Cash and cash equivalents $ 12,913 $47,489 Accounts receivable (net of allowance for doubtful accounts of $1,428 And $1,620) 58,513 50,119 Costs and earned gross profit in excess of billings 234 5,451 Inventories 62,330 50,553 Prepaid expenses and other current assets 12,212 8,947 Current assets of discontinued operations (Note 2) 28,825 37,562 ------------------ ------------------ Total current assets 175,027 200,121 Property and equipment (net of accumulated depreciation of $12,919 and $8,096) 47,136 Goodwill (net of accumulated amortization of $4,024 and $4,024) 98,736 86,808 Patents, licenses and trademarks (net of accumulated amortization of $2,169 and $1,930) 7,521 6,695 Long-term assets of discontinued operations (Note 2) 30,285 51,105 Other assets 9,048 6,624 ------------------ ------------------ Total assets $367,753 $ 388,057 ================== ================== LIABILITIES AND STOCKHOLDERS'EQUITY Current liabilities: Current portion of long-term debt $ 1,813 $ 1,773 Short term debt 599 709 Accounts payable 23,770 21,444 Accrued expenses and other current liabilities 25,116 25,796 Income taxes payable 5,913 - Current liabilities of discontinued operations (Note 2) 17,225 7,676 ------------------ ------------------ Total current liabilities 74,436 57,398 Long-term debt, less current portion 5,072 4,225 Long-term liabilities of discontinued operations (Note 2) 168 415 ------------------ ------------------ Total liabilities 79,676 62,038 Commitments and contingencies Stockholders' equity: Preferred stock, $.01 par value, 5,000,000 shares authorized; no shares issued and outstanding - Common stock, $.01 par value; 50,000,000 shares authorized; - 33,593,977 and 33,065,904 issued; 29,456,692 and 30,857,019 outstanding at December 31, 2002 and December 31, 2001, respectively 336 331 Additional paid-in capital 307,487 301,995 Retained earnings 34,056 51,745 Accumulated other comprehensive loss (4,169) (4,473) Treasury stock (49,633) (23,579) ------------------ ------------------ Total stockholders' equity 288,077 326,019 ------------------ ------------------ Total liabilities and stockholders' equity $367,753 $388,057 ================== ==================
The accompanying notes are an integral part of these consolidated financial statements. 182 ARMOR HOLDINGS INC. AND SUBSIDIARIES CONSOLIDATED INCOME STATEMENTS FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000 (IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
DECEMBER 31, 2002 DECEMBER 31, 2001 DECEMBER 31, 2000 ------------------- ------------------- ------------------- REVENUES: Products $ 179,946 $149,868 $139,904 Mobile Security 125,171 47,232 -- -------------------- -------------------- -------------------- Total Revenues 305,117 197,100 139,904 -------------------- -------------------- -------------------- COST AND EXPENSES Cost of sales 210,745 126,330 85,457 Operating expenses 49,836 38,659 30,286 Amortization 245 2,142 1,704 Integration and other non-recurring charges 5,926 3,296 2,588 -------------------- -------------------- -------------------- OPERATING INCOME 38,365 26,673 19,869 Interest expense, net 923 3,864 1,849 Other expense (income), net 51 (82) (67) -------------------- -------------------- -------------------- INCOME FROM CONTINUING OPERATIONS BEFORE PROVISION FOR INCOME TAXES 37,391 22,891 18,087 PROVISION FOR INCOME TAXES 16,054 8,207 7,240 -------------------- -------------------- -------------------- INCOME FROM CONTINUING OPERATIONS 21,337 14,684 10,847 -------------------- -------------------- -------------------- DISCONTINUED OPERATIONS (NOTE 2): (LOSS) INCOME FROM DISCONTINUED OPERATIONS BEFORE (BENEFIT) PROVISION FOR INCOME TAXES (41,468) (7,066) 8,303 (BENEFIT) PROVISION FOR INCOME TAXES (2,442) (2,510) 2,102 -------------------- -------------------- -------------------- (LOSS) INCOME FROM DISCONTINUED OPERATIONS (39,026) (4,556) 6,201 -------------------- -------------------- -------------------- NET (LOSS) INCOME $ (17,689) $ 10,128 $ 17,048 ==================== ==================== ==================== NET (LOSS)/INCOME PER COMMON SHARE - BASIC INCOME FROM CONTINUING OPERATIONS $ 0.70 $ 0.61 $ 0.48 (LOSS) INCOME FROM DISCONTINUED OPERATIONS (1.28) (0.19) 0.27 -------------------- -------------------- -------------------- BASIC (LOSS) INCOME PER SHARE $ (0.58) $ 0.42 $ 0.75 ==================== ==================== ==================== NET (LOSS) INCOME PER COMMON SHARE - DILUTED INCOME FROM CONTINUING OPERATIONS $ 0.69 $ 0.59 $ 0.46 (LOSS) INCOME FROM DISCONTINUED OPERATIONS (1.26) (0.18) 0.27 -------------------- -------------------- -------------------- DILUTED (LOSS) INCOME PER SHARE $ (0.57) $ 0.41 $ 0.73 ================================================================ WEIGHTED AVERAGE SHARES - BASIC 30,341 23,932 22,630 ==================== ==================== ==================== WEIGHTED AVERAGE SHARES - DILUTED 30,957 24,768 23,356 ==================== ==================== ====================
The accompanying notes are an integral part of these consolidated financial statements. 183 ARMOR HOLDINGS INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE INCOME YEARS ENDED DECEMBER 31, 2000, 2001 AND 2002 (IN THOUSANDS)
ACCUMULATED COMMON STOCK ADDITIONAL OTHER PAR PAID-IN RETAINED COMPREHENSIVE TREASURY SHARES VALUE CAPITAL EARNINGS LOSS STOCK TOTAL ------ ----- ------- -------- ---- ----- ----- Balance, December 31, 1999 24,514 $245 $145,480 $26,615 $(1,351) $(13,106) $157,883 Exercise of stock options 333 3 1,470 1,473 Tax benefit from exercises of options 867 867 Issuance of stock for acquisitions 217 2 2,437 2,439 Repurchase of stock (12,606) (12,606) ------------- Comprehensive income: Net income 17,048 17,048 Foreign currency translation adjustments, net of taxes of $179 (333) (333) ------------- Total Comprehensive income 16,715 --------- ---------- ---------------- ------------ --------------- ------------- ------------- Balance, December 31, 2000 25,064 $250 $150,254 $43,663 $(1,684) $(25,712) $166,771 Exercise of stock options 1,063 11 10,101 10,112 Tax benefit from exercises of options 3,116 3,116 Issuance of treasury shares for exercises of options (119) (1) (123) (2,846) 2,856 686 Issuance of common stock 5,765 58 117,969 118,027 Issuance of stock for acquisitions and additional consideration for earnouts 1,293 13 20,678 20,691 Repurchase of stock (723) (723) Comprehensive income: ------------- Net income 10,128 10,128 Foreign currency translation adjustments, net of taxes of $713 (2,789) (2,789) ------------- Total Comprehensive income 7,339 --------- ---------- ---------------- ------------ --------------- ------------- ------------- Balance, December 31, 2001 33,066 $ 331 $ 301,995 $ 51,745 $ (4,473) $ (23,579) $ 326,019 Exercise of stock options 528 5 4,135 4,140 Tax benefit from exercises of options 832 832 Sale of put options 525 525 Repurchase of stock (26,054) (26,054) Comprehensive income: ------------- Net income (17,689) (17,689) Foreign currency translation adjustments, net of taxes of $364 304 304 ------------- Total Comprehensive income (17,385) --------- ---------- ---------------- ------------ --------------- ------------- ------------- Balance, December 31, 2002 33,594 $336 $307,487 $34,056 $(4,169) $(49,633) $288,077 ========= ========== ================ ============ =============== ============= =============
The accompanying notes are an integral part of these consolidated financial statements. 184 ARMOR HOLDINGS INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOW YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000 (IN THOUSANDS)
YEAR ENDED -------------------------------------------------------- DECEMBER 31, 2002 DECEMBER 31, 2001 DECEMBER 31, 2000 -------------------------------------------------------- CASH FLOWS FROM OPERATING ACTIVITIES: Income from continuing operations $ 21,337 $ 14,684 $ 10,847 Adjustments to reconcile income from continuing operations to cash used in operating activities: Depreciation and amortization 5,580 5,614 3,462 Loss on disposal of fixed assets 200 191 110 Deferred income taxes 359 (373) 769 Changes in operating assets and liabilities, net of acquisitions: Increase in accounts receivable (2,554) (14,880) (3,600) Increase in inventories (9,381) (3,948) (4,579) (Increase) decrease in prepaid expenses and other assets (2,246) 1,049 (6,396) (Decrease) increase in accounts payable, accrued expenses and other current liabilities (3,754) 7,181 381 Increase in income taxes payable 6,745 6,667 (2,928) ------------------ ------------------ ------------------ Net cash provided by (used in) operating activities 16,286 16,185 (1,934) ------------------ ------------------ ------------------ CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of patents and trademarks (69) - (83) Purchase of property and equipment (5,902) (5,644) (4,063) Additional consideration for purchased businesses (9,375) (3,270) Purchases of investments - - (1,682) Proceeds from sale of equity securities - 843 857 Purchase of businesses, net of cash acquired (8,818) (39,365) (14,220) ------------------ ------------------ ------------------ Net cash used in investing activities (24,164) (47,436) (19,191) ------------------ ------------------ ------------------ CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from the issuance of common stock - 117,979 - Proceeds from the exercise of stock options 4,227 10,160 1,473 Repurchases of treasury stock (26,054) (723) (12,606) Proceeds from the sale of put options 525 - - Proceeds from issuance of treasury shares for the exercise of stock options - 686 - Cash paid for deferred loan costs - (545) (256) Cash paid for offering costs (326) - - Repayments of long-term debt (730) (676) (1,115) Repayments of debt assumed in acquisitions - (1,315) (1,132) Borrowings under line of credit 32,372 98,286 75,647 Repayments under line of credit (32,447) (130,981) (43,434) ------------------ ------------------ ------------------ Net cash (used in) provided by financing activities (22,433) 92,871 18,577 Effect of exchange rate changes on cash and (126) (1,459) (333) cash equivalents Net cash used in discontinued operations (4,139) (14,336) (2,754) ------------------ ------------------ ------------------ NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (34,576) 45,825 (5,635) CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 47,489 1,664 7,299 ------------------ ------------------ ------------------ CASH AND CASH EQUIVALENTS, END OF PERIOD $ 12,913 $47,489 1,664 ================== ================== ================== CASH AND CASH EQUIVALENTS, END OF PERIOD CONTINUING OPERATIONS $ 12,913 $47,489 $ 1,664 DISCONTINUED OPERATIONS 3,638 6,230 5,593 ------------------ ------------------ ------------------ $ 16,551 $53,719 $ 7,257 ================== ================== ==================
The accompanying notes are an integral part of these consolidated financial statements. 185 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. BACKGROUND AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES The Company and nature of business. Armor Holdings, Inc. is a leading manufacturer and provider of security products, vehicle armor systems and security risk management services. Our products and services are used by military, law enforcement, security and corrections personnel throughout the world, as well as governmental agencies, multinational corporations and non-governmental organizations. We are organized and operated under three business segments: Armor Holdings Products; Armor Mobile Security; and ArmorGroup Services. ArmorGroup Services has been classified as discontinued operations. The amounts disclosed in the footnotes are related to continuing operations unless otherwise indicated. Continuing Operations Armor Holdings Products. Our Armor Holdings Products Division manufactures and sells a broad range of high quality, branded law enforcement equipment, such as concealable and tactical body armor, hard armor, duty gear, less-lethal munitions, anti-riot products, police batons, emergency lighting products, forensic products, firearms accessories and weapon maintenance products. Our products are marketed under brand names that are well-known and respected in the military and law enforcement communities such as American Body Armor(TM), Safariland(R), B-Square(TM), Break-Free(R), Defense Technology/Federal Laboratories(TM), MACE(R), PROTECH(TM), NIK(R)Public Safety, Monadnock(TM) Lifetime Products, Identicator(TM), Lightning Powder(R), SpeedFeed(TM), and 911EP(R). We sell our manufactured products primarily to law enforcement agencies through a worldwide network of over 350 distributors and sales agents, including approximately 200 in the United States. Our extensive distribution capabilities and commitment to customer service and training have enabled us to become a leading provider of security equipment to law enforcement agencies. Armor Mobile Security. Our Armor Mobile Security Division manufactures and installs ballistic and blast protected armoring systems for military vehicles, commercial vehicles, military aircraft, and missile components. Under the brand name O'Gara-Hess & Eisenhardt, we are the sole-source provider to the U.S. military for the supply of armoring and blast protection systems for the High Mobility Multi-purpose Wheeled Vehicle (the "HMMWV"). We have also entered into an agreement to provide systems technical support for HMMWVs. There is currently an installed base of approximately 4,415 up-armored HMMWVs. We provide spare parts and maintenance services for the installed HMMWVs and we expect that our maintenance services may increase if the U.S. military substantially increases its HMMWV purchases or substantially increases its use of the current installed base. Additionally, the Armor Mobile Security Division has been subcontracted to develop a ballistically armored and sealed truck cab for the High Mobility Artillery Rocket System ("HIMARS"), a program currently in development for the U.S. Army. The Division also markets armor sub-systems for other tactical wheeled vehicles. We armor a variety of commercial vehicles, including limousines, sedans, sport utility vehicles, commercial trucks and cash-in-transit vehicles, to protect against varying degrees of ballistic and blast threats. 186 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS DISCONTINUED OPERATIONS Services Division. Our Services Division provides a broad range of sophisticated security risk management solutions to multinational corporations in diverse industries such as natural resources, financial services and consumer products, and to governmental and non-governmental agencies such as the U.S. Departments of State and Defense, the United Nations, United States Agency for International Development ("USAID") and Britain's Department for International Development. Our clients typically have personnel and other investments in unstable and often more risky areas of the world. Through our offices on five continents, we provide our multinational clients with a diversified portfolio of security solutions to assist them in mitigating risks to their operations around the world. Our highly trained, multilingual, and experienced security personnel work closely with our clients to create and implement solutions to complex security problems. These services include security planning, advice and management, security systems integration, intellectual property asset protection, due diligence investigations and training programs in counterintelligence, counter-surveillance, advanced driving techniques and ballistics. We believe that many of our security services, while often representing a small portion of our clients' overall cost of doing business, are critical to our clients' success. We believe that this creates a consistent demand for our premium services at attractive margins. Principles of consolidation. The consolidated financial statements include the accounts of Armor Holdings and its wholly-owned subsidiaries. In consolidation, all material inter-company balances and transactions have been eliminated. Results of operations of companies acquired in transactions accounted for under the purchase method of accounting are included in the financial statements from the date of the acquisition. Cash and cash equivalents. We consider all highly liquid investments purchased with maturities of three months or less, at date of purchase, to be cash equivalents. Concentration of credit risk. Financial instruments that potentially subject us to concentrations of credit risk consist primarily of cash and cash equivalents and trade accounts receivable. We maintain our cash and cash equivalents with what we believe to be various high quality banks. Amounts held in individual banks may periodically exceed, for brief time periods, federally insured amounts. Our accounts receivable consist of amounts due from customers and distributors located throughout the world. International product sales generally require cash in advance or confirmed letters of credit on United States ("U.S.") banks. We maintain reserves for potential credit losses. As of December 31, 2002 and 2001, management believes that we have no significant concentrations of credit risk. Inventories. Inventories are stated at the lower of cost or market determined on the first-in, first-out ("FIFO") method. Fair value of financial instruments. The carrying value of cash and cash equivalents, accounts receivable, other receivables, accounts payable, and short and long-term debt approximates fair value at December 31, 2002 and 2001. 187 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Property and equipment. Property and equipment are carried at cost less accumulated depreciation. Upon disposal of property and equipment, the appropriate accounts are reduced by the related cost and accumulated depreciation. The resulting gains and losses are reflected in consolidated earnings. Depreciation is computed using the straight-line method over the estimated lives of the related assets as follows: Buildings and improvements.................... 5 - 39 years Machinery and equipment....................... 3 - 7 years Goodwill. Goodwill represents the excess of the purchase price over the fair value of the net assets acquired in a purchase business combination. Goodwill and other intangible assets are stated on the basis of cost. The $46.3 million in goodwill resulting from acquisitions made by Armor Holdings subsequent to June 30, 2001 was immediately subjected to the non-amortization provisions of SFAS 142. See also "Impairment and Recent Accounting Pronouncements " which follows. Patents, licenses and trademarks. Patents, licenses and trademarks were primarily acquired through acquisitions accounted for by the purchase method of accounting. Such assets are amortized on a straight-line basis over their remaining useful lives. Impairment. Long-lived assets including certain identifiable intangibles, and the goodwill, are reviewed for annual impairment or whenever events or changes in circumstances indicate that the carrying amount of the asset in question may not be recoverable including, but not limited to, a deterioration of profits for a business segment that has long-lived assets, and when other changes occur which might impair recovery of long-lived assets. Management has reviewed our long-lived assets and has taken an impairment charge of $31.1 million to reduce the carrying value of the Services Division to estimated realizable value. The method used to determine the existence of an impairment would be generally by discounted operating cash flows estimated over the remaining useful lives of the related long-lived assets or estimated realizable amounts on assets of discontinued operations. Impairment is measured as the difference between fair value and unamortized cost at the date impairment is determined. Research and development. Research and development costs are included in operating expenses as incurred and for the years ended December 31, 2002, 2001 and 2000, and approximated $2,968,000, $2,353,000 and $2,590,000, respectively. Estimates. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts in the financial statements and accompanying notes. Significant estimates inherent in the preparation of the accompanying consolidated financial statements include the carrying value of long-lived assets, valuation allowances for receivables, inventories and deferred income tax assets, liabilities for potential litigation claims and settlements; and contract contingencies and obligations. Actual results could differ from those estimates. Income taxes. We account for income taxes pursuant to Statement of Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes". Under the asset and liability method specified thereunder, deferred taxes are determined based on the difference between the financial reporting and tax bases of assets and liabilities. Deferred tax liabilities are offset by deferred tax 188 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS assets relating to net operating loss carryforwards and deductible temporary differences. Future benefits obtained either from utilization of net operating loss carryforwards or from the reduction in the income tax asset valuation allowance existing on September 20, 1993 have been and will be applied to reduce reorganization value in excess of amounts allocable to identifiable assets. At December 31, 2002 and 2001, our consolidated foreign subsidiaries have unremitted earnings of approximately $3.0 million and $1.3 million, respectively on which we have not recorded a provision for United States Federal income taxes since these earnings are considered to be permanently reinvested. Such foreign earnings have been taxed according to the regulations existing in the countries in which they were earned. Revenue recognition. We record products revenue at the time of shipment. Returns are minimal and do not materially effect the financial statements. We record revenue from our Mobile Security Division when the vehicle is shipped, except for larger commercial contracts typically longer than four months in length and the contract for the delivery of HMMWVs to the U.S. Government which continues through 2005. Revenue from such contracts is recognized on the percentage of completion, units-of-work performed method. HMMWV units sold to the U.S. Government are considered complete when the onsite Department of Defense officer finishes the inspection of the HMMWV and approves it for delivery. Should such contracts be in a loss position, the entire estimated loss would be recognized for the balance of the contract at such time. Current contracts are profitable. We record service revenue as services are provided on a contract by contract basis. Revenues from service contracts are recognized over the term of the contract. Advertising. We expense advertising costs as expense in the period in which they are incurred. Earnings per share. Basic earnings per share is computed by dividing net income by the weighted-average number of common shares outstanding. Diluted earnings per share is computed by dividing net income by the weighted-average number of common shares outstanding compounding the effects of all potentially dilutive common stock equivalents, principally options, except in cases where the effect would be anti-dilutive. Comprehensive income and foreign currency translation. In accordance with SFAS No. 130, "Reporting Comprehensive Income", assets and liabilities denominated in a foreign currency are translated into U.S. dollars at the current rate of exchange existing at year-end and revenues and expenses are translated at the average monthly exchange rates. The cumulative translation adjustment, net of tax, which represents the effect of translating assets and liabilities of our foreign operations is recorded as a reduction of equity of $4,169,000 and $4,473,000 for the years ended December 31, 2002 and 2001, respectively, and is classified as accumulated other comprehensive loss. The current year change in the accumulated amount, net of tax, is included as a component of comprehensive income. Stock options and Grants. SFAS No. 123, "Accounting for Stock-Based Compensation" ("SFAS 123") establishes a fair value based method of accounting for stock-based employee compensation plans; however, it also allows an entity to continue to measure compensation cost for those plans 189 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS using the intrinsic value based method of accounting prescribed by Accounting Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to Employees." Under the fair value based method, compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period. Under the intrinsic value based method, compensation costs is the excess, if any, of the quoted market price of the stock at the grant date or other measurement date over the amount an employee must pay to acquire the stock. We have elected to continue to account for our employee stock compensation plans under APB Opinion No. 25 with pro forma disclosures of net earnings and earnings per share, as if the fair value based method of accounting defined in SFAS No. 123 had been applied. If compensation cost for stock option grants had been determined based on the fair value on the grant dates for 2002, 2001 and 2000 consistent with the method prescribed by SFAS No. 123, our net earnings and earnings per share would have been adjusted to the pro forma amounts indicated below:
2002 2001 2000 ---------------- ------------- ------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) Net income as reported $ (17,689) $10,128 $17,048 Deduct: Total stock-based employee compensation expense determined under fair value based method for all awards, net of related tax effects (5,053) (2,435) (803) ---------------- ------------- ------------ $ 22,742) $7,693 $16,245 ================ ============= ============ Earnings per share: Basic - as reported $ (0.58) $ 0.42 $ 0.75 ================ ============= ============ Basic - pro forma $ (0.75) $ 0.32 $ 0.72 ================ ============= ============ Diluted - as reported $(0.57) $ 0.41 $ 0.73 ================ ============= ============ Diluted - pro forma $(0.74) $ 0.31 $ 0.70 ================ ============= ============
Reclassifications. Certain reclassifications have been made to the 2001 and 2000 financial statements in order to conform to the presentation adopted for 2002. These reclassifications had no effect on net income or retained earnings. Recent accounting pronouncements. In June 2001, the Financial Accounting Standards Board (FASB) issued SFAS No. 141, "Business Combinations." SFAS No. 141 requires that the purchase method of accounting be used for all business combinations initiated after June 30, 2001. This statement specifies that certain acquired intangible assets in a business combination be recognized as assets separately from goodwill and that existing intangible assets and goodwill be evaluated for these new separation requirements. The adoption of this statement did not have a material impact on our consolidated financial statements. 190 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS In June 2001, the FASB issued SFAS No. 142, "Goodwill and Other Intangible Assets." SFAS No. 142 changes the accounting for goodwill from an amortization method to an impairment-only approach. Amortization of goodwill, including goodwill recorded in past business combinations, ceased upon adoption of this statement. In addition, this statement requires that goodwill be tested for impairment at least annually at the reporting unit level. We implemented SFAS No. 142 on January 1, 2002. In connection with the adoption of SFAS 142, we completed in the second quarter the transitional goodwill impairment test that compared the fair value of each reporting unit to its carrying value and determined that no impairment existed. The goodwill resulting from acquisitions made by us subsequent to June 30, 2001 was immediately subject to the non-amortization provisions of SFAS 142. Had we been accounting for goodwill under SFAS 142 for all periods presented, our net income and earnings per share would have been as follows:
DECEMBER 31,2002 DECEMBER 31, 2001 DECEMBER 31, 2000 ------------------ -------------------- ------------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Reported net (loss)income $ (17,689) $10,128 $17,048 Add back goodwill amortization, net of tax - 3,044 2,943 ------------------- -------------------- -------------------- Actual/pro forma adjusted net(loss)income $ (17,689) $13,172 $19,991 ================== =================== =================== Basic earnings per share Reported basic (loss) income per share $(0.58) $0.42 $0.75 Goodwill amortization, net of tax - 0.13 0.13 ------------------- -------------------- -------------------- Actual/pro forma basic (loss) income per share $(0.58) $0.55 $0.88 ================== =================== =================== Diluted earnings per share Reported diluted (loss) income per share $(0.57) $0.41 $0.73 Goodwill amortization, net of tax - 0.12 0.13 ------------------- -------------------- -------------------- Actual/pro forma diluted (loss) income per share $(0.57) $0.53 $0.86 ================== =================== ===================
In August 2001, the FASB issued Statement of Financial Accounting Standards No. 143, "Accounting for Asset Retirement Obligations" (SFAS 143). SFAS 143 establishes accounting standards for recognition and measurement of a liability for an asset retirement obligation and the associated asset retirement cost. SFAS 143 requires the recognition of the fair value of a liability for an asset retirement obligation in the period in which it is incurred if a reasonable estimate of fair value can be made. If a reasonable estimate of fair value cannot be made in the period the asset retirement obligation is incurred, the liability shall be recognized when a reasonable estimate of fair value can be made. The fair value of a liability for an asset retirement obligation is the amount at which that liability could be settled in a current transaction between willing parties, that is, other than in a forced or liquidation transaction. SFAS 143 is effective for financial statements issued for fiscal years beginning after June 15, 2002. The provisions of SFAS 143 will become effective for 191 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS us on January 1, 2003. The effects of adopting this standard will not have a material effect on us. In October 2001, the FASB issued Statement of Financial Accounting Standards No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets" (SFAS 144). SFAS 144 establishes a "primary-asset" approach to determine the cash flow estimation period for a group of assets and liabilities that represents the unit of accounting for a long-lived asset to be held and used. SFAS 144 requires that a long-lived asset to be (1) abandoned, (2) exchanged for a similar productive asset, or (3) distributed to owners in a spin-off be considered held and used until it is abandoned, exchanged, or distributed. SFAS 144 requires (1) that spin-offs and exchanges of similar productive assets to be recorded at the lower of carrying value or fair value, and that such assets be classified as held and used until disposed of and (2) that any impairment loss resulting from a spin-off or exchange of similar productive assets be recognized upon asset disposition. SFAS 144 also states that the total assets and total liabilities of discontinued business segments shall be presented in separate captions in assets and liabilities. SFAS 144 also provides that future losses, if any, of discontinued business segments shall be reported as incurred. Effective January 1, 2002, we adopted SFAS 144. The reclassification of the Services division to discontinued operations and subsequent reduction in its carrying value was a result of our adoption of SFAS 144 (See Note 2). In April 2002, the FASB issued Statement of Financial Accounting Standards No. 145, "Recission on FASB 4, 44 and 64, Amendment of FASB Statement No. 13 and Technical Corrections" (SFAS 145). Under SFAS 145, gains and losses related to the extinguishment of debt should no longer be segregated on the income statement from continuing operations. The provisions of SFAS 145 are effective for fiscal years beginning after May 15, 2002 with early adoption encouraged. The effects of adopting this standard will not have a material effect on us. In June 2002, the FASB issued Statement of Financial Accounting Standard 146, "Accounting for Costs Associated with Exit or Disposal Activities" (SFAS 146). SFAS 146 addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force Issue No. 94-3, "Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring)." SFAS 146 is effective for exit or disposal activities initiated on or after December 31, 2002. The effects of adopting this standard will not have a material effect on the us. In December 2002, the FASB issued Statement of Financial Accounting Standard 148, "Accounting for Stock-Based Compensation - Transition and Disclosure" (SFAS 148). SFAS 148 provides alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. In addition, SFAS 148 amends the disclosure requirements of Statement of Financial Accounting Standard 123, "Accounting for Stock-Based Compensation" (SFAS 123), to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. The disclosure requirements of SFAS 148 are included in this document. 192 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 2. DISCONTINUED OPERATIONS On July 15, 2002, we announced plans to sell the Services division and the retention of Merrill Lynch & Company to assist in the sale. In accordance with Statement of Accounting Standards 144, Accounting for Impairment or Disposal of Long-Lived Assets, the assets and liabilities of the Services division have been classified as held for sale, with its operating results in the current and prior periods reported in discontinued operations for the year ended December 31, 2002, 2001 and 2000. USDS, Inc., a subsidiary providing certain training services, formerly reported as a part of the Services Division is not included in the amounts classified as assets held for sale. The assets and liabilities as well as the operating results of USDS, Inc. have been reclassified to the Armor Holdings Products Division where management oversight currently resides. On January 24, 2003, we executed an agreement to negotiate exclusively with an undisclosed party for the sale the Security consulting business of our ArmorGroup Services Division, headquartered in London. Separately, on January 16, 2003 we executed an agreement to negotiate exclusively with an undisclosed party for the sale of the ArmorGroup Integrated Systems business of our ArmorGroup Services Division. The terms of both transactions and the identities of both buyers are protected by confidentiality agreements. These two transactions represent approximately 94% of the net assets of the Services Division, currently reported as Discontinued Operations. Both transactions are subject to, among other conditions, ongoing due diligence and the execution of definitive purchase agreements. Based upon our analysis and discussions with our advisors regarding the estimated realizable value of the Services Division, we reduced the carrying value of the Services Division, and recorded an impairment charge of $30.3 million. This impairment charge consisted of approximately $6.1 million in estimated disposal costs and a $24.2 million non-cash goodwill reduction. The reduction in the carrying value of the Services Division is Management's estimate based upon all of the best information currently available, including discussions with its investment bankers. The actual proceeds from the disposal of our Services Division may differ materially from our current estimates and therefore could result in either a gain or a loss upon final disposal. In January 2001, our Services Division was classified as discontinued operations approved a restructuring plan to close its U.S. investigative businesses, realign the division's organization, eliminate excess facilities and reduce overhead in its businesses worldwide. In connection with this restructuring plan, the division performed a review of its long-lived assets to identify potential impairments. Pursuant to this restructuring plan, ArmorGroup i) eliminated 26 employees, primarily from its investigative businesses, ii) eliminated an additional 24 employees from its security business, iii) incurred lease and other exit costs as a result of the closure of its investigative businesses, and iv) wrote-down the value of both tangible and intangible assets as a result of the impairment review. All of the significant actions contemplated by the restructuring plan have been completed. As a result of the restructuring plan, we recorded a pre-tax charge of $10.3 million. As of December 31, 2002, we had a remaining liability of $270,000 after fiscal year 2002 utilization of $84,000 relating to lease termination costs. The remaining liability has been classified in accrued expenses in and other current liabilities discontinued operations on the consolidated balance sheet. 193 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The following is a summary of the operating results of the discontinued operations for the year ended December 31, 2002, 2001 and 2000.
DECEMBER 31, 2002 DECEMBER 31, 2001 DECEMBER 31, 2000 ------------------- ------------------- ------------------- (IN THOUSANDS) Revenue $ 98,263 $ 94,928 $ 81,051 Cost of sales 75,779 65,021 52,042 -------------------- -------------------- -------------------- Gross Profit 22,484 29,907 29,009 Operating expenses 30,588 24,496 20,055 Amortization expenses - 1,519 1,725 Charge for impairment of long-lived assets 30,296 - - Restructuring and related charges - 10,257 - Equity in earnings of investees - - (87) Integration and other non-recurring charges 2,623 776 702 -------------------- -------------------- -------------------- Operating (loss) income (41,023) (7,141) 6,614 Interest expense, net 346 143 47 Other expense (income), net 99 (218) (1,736) -------------------- -------------------- -------------------- (Loss) income from discontinued operations before provision (benefit) for income taxes (41,468) (7,066) 8,303 (Benefit) provision for income taxes (a) (2,442) (2,510) 2,102 -------------------- -------------------- -------------------- (Loss) income from discontinued operations $ (39,026) $ (4,556) $ 6,201 ==================== ==================== ====================
a) Fiscal 2002 income taxes exclude additional expense of $1,475,000 as per paragraphs 26 and 27 of SFAS No. 109 included in income from continuing operations on a consolidated basis. See Note 13. 194 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The following is a summary of the assets and liabilities of our discontinued operations:
DECEMBER 31, DECEMBER 31, 2002 2001 (IN THOUSANDS) Assets Cash and cash equivalents $ 3,638 $ 6,230 Accounts receivable, net 16,228 24,040 Other current assets 8,959 7,292 ----------------- --------------- Total current assets 28,825 37,562 Property, plant and equipment, net 12,481 9,358 Goodwill, net 12,995 36,865 Other assets 4,809 4,882 ----------------- --------------- Total assets of discontinued operations $ 59,110 $ 88,667 ================= =============== Liabilities Current portion of long-term debt $ 186 $ 282 Short-term debt 350 681 Accounts payable 2,405 2,692 Accrued expenses and other current liabilities 14,284 4,021 ----------------- --------------- Total current liabilities 17,225 7,676 Long-term debt 168 415 ----------------- --------------- Total liabilities of discontinued operations $ 17,393 $ 8,091 ================= ===============
3. COMPREHENSIVE INCOME The components of comprehensive income, net of tax benefits of $364,000, $713,000 and $179,000 for the years ended December 31, 2002, 2001 and 2000, are listed below:
DECEMBER 31, 2002 DECEMBER 31, 2001 DECEMBER 31, 2000 ----------------- ----------------- ----------------- (IN THOUSANDS) Net (loss) income $(17,689) $10,128 $17,048 Other comprehensive loss: Foreign currency translations, net of tax 304 (2,789) (333) -------------------- ------------------- ------------------ Comprehensive (loss) income: $(17,385) $ 7,339 $16,715 ==================== =================== ==================
195 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 4. BUSINESS COMBINATIONS We have completed numerous purchase business combinations for cash and/or shares of our common stock and assumption of liabilities in certain cases. In the three years in the period ended December 31, 2002, the following acquisitions were completed:
TOTAL SHARES VALUE OF CONSIDERATION ISSUED SHARES -------------------------------------------------------------- (IN THOUSANDS, EXCEPT SHARES ISSUED) 2002 Aggregate 2002 acquisitions (1) $ 8,818 - - Additional purchase price paid/issued for acquisition earnouts 9,375 - - -------------------------------------------------------------- $18,193 - - 2001 Aggregate 2001 acquisitions (2) $ 59,887 1,224,302 $ 19,604 Additional purchase price paid/issued for acquisition earnouts 3,904 68,888 1,087 -------------------------------------------------------------- $63,791 1,293,190 $ 20,691 ============================================================== 2000 Aggregate 2000 acquisitions (3) $14,220 - $ - Additional purchase price paid/issued for acquisition earnouts 200 14,996 200 -------------------------------------------------------------- $ 14,420 14,996 $ 200 ==============================================================
(1) Includes Speedfeed, Inc., Foldable Products Group, B-Square, Inc., Evi-Paq, Inc., Trasco Bremen and 911 Emergency Products. (2) Includes O'Gara-Hess & Eisenhardt Companies, Guardian and Identicator. (3) Includes Breakfree, Inc., Monadnock Lifetime Products and Lightning Powder. 196 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Businesses acquired are included in consolidated results including discontinued operations from the date of acquisition. Pro forma results of the 2002 and 2000 acquisitions are not presented as they would not differ by a material amount from actual results. The following unaudited pro forma consolidated results are presented to show the results on a pro forma basis as if the 2001 acquisitions had been made as of January 1, 2001 and January 1, 2000: 2001 2000 ------------------------------------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) Revenues $ 370,842 $ 333,375 Net income $ 6,453 $ 14,325 Basic earnings per share $ 0.26 $ 0.61 Diluted earnings per share $ 0.25 $ 0.59 Weighted average shares - basic 24,579 23,639 Weighted average shares - diluted 25,415 24,365 The changes in the carrying amount of goodwill for the year ended December 31, 2002, are as follows:
PRODUCTS MOBILE SECURITY TOTAL -------------- --------------------- --------------- (IN THOUSANDS) Balance at January 1, 2001 $ 52,845 $ 33,963 $ 86,808 Goodwill acquired during year 7,298 4,630 11,928 -------------- --------------------- --------------- Balance at December 31, 2002 $ 60,143 $ 38,593 $ 98,736 ============== ===================== ===============
5. INVENTORIES The components of inventory as of December 31, 2002 and 2001 are as follows: 2002 2001 --------------- -------------------- (IN THOUSANDS) Raw materials $ 30,211 $ 28,796 Work-in-process 15,733 12,941 Finished goods 16,386 8,816 --------------- -------------------- $ 62,330 $ 50,553 =============== ==================== 197 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 6. PROPERTY AND EQUIPMENT Property and equipment as of December 31, 2002 and 2001 are summarized as follows: 2002 2001 ------------------- ---------------- (IN THOUSANDS) Land $ 5,557 $ 3,571 Buildings and improvements 23,964 16,083 Machinery and equipment 30,534 25,146 ------------------- ---------------- Total 60,055 44,800 Accumulated Depreciation (12,919) (8,096) ------------------- ---------------- $ 47,136 $ 36,704 =================== ================ Depreciation expense for the years ended December 31, 2002, 2001 and 2000 was approximately $4,953,000, $3,031,000, and $2,074,000 respectively. In the statement of operations on continuing operations for the years ended December 31, 2002, 2001 and 2000, depreciation expense has been reduced by $130,000 in each year for the amortization of the proceeds received under an economic development grant received from the Department of Housing and Urban Development. 198 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 7. ACCRUED EXPENSES AND OTHER CURRENT LIABILTIES Accrued expenses and other current liabilities as of December 31, 2002 and 2001 are summarized as follows: 2002 2001 ------------ -------------- (IN THOUSANDS) Accrued expenses $16,988 $18,269 Customer Deposits 6,302 7,002 Deferred consideration for acquisitions 1,826 525 ------------ -------------- $25,116 $25,796 ============ ============== 8. DEBT
2002 2001 ------------- ------------ (IN THOUSANDS) Credit facility (a) $ - $ - Ontario Industrial Development Authority Variable Rate Demand Industrial Development Revenue Bonds, Series 1989 payable in annual installments of $200 to $300, through August 1, 2014, with interest paid monthly at varying rates 2,800 3,000 Note payable in scheduled installments through 2013, with an interest rate of 5%. 1,582 - Economic Development Revenue Bonds, payable in scheduled installments through September 2016, with a variable interest rate approximating 85% of the bond equivalent yield of the 13 week U.S. Treasury bills (not to exceed 12%) which approximated 1.5% and 2.75% at December 31, 2002 and 2001, respectively. 1,075 1,150 Note to former officer payable in monthly principal and interest installments of $7 through December 31, 2009 with an imputed interest rate of 9.25% 399 438 Minimum guaranteed royalty to former officer payable in monthly principal and interest installments of $4 through August 2005, with an imputed interest rate of 9.2% 114 152 Minimum guaranteed royalty to former officer payable in monthly principal and interest installments of $36 through April 2005, with an imputed interest rate of 7.35% 915 1,258 ------------- ------------ $6,885 $5,998 Less current portion (1,813) (1,773) ------------- ------------ $5,072 $4,225 ============= ============
199 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Credit Facility (a) - On August 22, 2001, we entered into an Amended and Restated Credit Agreement (the "Credit Agreement") with Bank of America, Canadian Imperial Bank of Commerce, First Union National Bank, SunTrust Bank, Republic Bank, Keybank National Association, and ING (U.S.) Capital LLC. Pursuant to the Credit Agreement, the lenders established a $120,000,000 line of credit for our benefit expiring on February 12, 2004. The Credit Agreement, among other things, provides for (i) total maximum borrowings of $120,000,000 and (ii) the capability for borrowings in foreign currencies. All borrowings under the Credit Agreement bear interest at either (i) a base rate, plus an applicable margin ranging from .000% to .375%, depending on certain conditions, (ii) a eurodollar rate, plus an applicable margin ranging from 1.125% to 1.875%, depending on certain conditions, or (iii) with respect to foreign currency loans, a fronted offshore currency rate, plus an applicable margin ranging from 1.125% to 1.875%, depending on certain conditions. In addition, the Credit Agreement includes both negative and affirmative covenants customary for a credit facility of this nature, such as a limitation on capital expenditures, foreign indebtedness, minimum fixed charge coverage and a restriction against paying dividends. The Credit Agreement also provides that Bank of America will make swing-line loans to us of up to $5,000,000 for working capital purposes and will issue letters of credit on our behalf of up to $20,000,000. As of December 31, 2002, we had no outstanding borrowings under our Credit Facility, and Bank of America had issued $11.4 million in letters of credit on our behalf under the Credit Agreement. All indebtedness under the Credit Agreement will mature on February 12, 2004. We had approximately $6.9 million in other long-term debt, net of current portion, consisting primarily of $3.9 million in industrial development revenue bonds. As part of the Credit Agreement, all of our direct and indirect domestic subsidiaries agreed to guarantee our obligations under the Credit Agreement. The Credit Agreement is collateralized by (1) a pledge of all of the issued and outstanding shares of stock of certain domestic subsidiaries of Armor Holdings pursuant to a pledge agreement and (2) a pledge of 65% of the issued and outstanding shares of our first tier foreign subsidiaries. The Credit Agreement includes both negative and affirmative covenants customary for a credit facility of this nature, such as a limitation on capital expenditures, foreign indebtedness, minimum fixed charge coverage and a restriction against paying dividends. Maturities of long-term debt are as follows: YEAR ENDED (IN THOUSANDS) ------------------------------- 2003 $ 1,813 2004 917 2005 550 2006 393 2007 443 Thereafter 2,769 ---------------------- $ 6,885 ====================== 200 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 9. INTEGRATION AND OTHER NON-RECURRING CHARGES As a result of its acquisition program, we incurred integration and other non-recurring charges of approximately $5.9 million, $3.3 million and $2.6 million for the years ending December 31, 2002, 2001 and 2000, respectively. These costs related to the relocation of assets and personnel, severance costs, systems integration, domestic and international tax restructuring as well as integrating the sales and marketing functions for the acquired companies. 10. COMMITMENTS AND CONTINGENCIES Employment contracts. We are party to several employment contracts at year ending December 31, 2002 with certain members of management. Such contracts are for varying periods and include restrictions on competition after termination. These agreements provide for salaries, bonuses and other benefits and also specify and delineate the granting of various stock options. Legal/litigation matters. In 1997 we terminated several agreements with a Dutch company, Airmunition International, B.V. (AMI), and with a British company, Crown Limited (Crown). AMI and Crown started an action against us before the Netherlands Arbitration Institute in Rotterdam, Holland claiming breach of contract and unauthorized use of confidential information and seeking damages of $20.5 Million. The case is currently pending, and while we are contesting the allegations vigorously, we are unable to predict the outcome of this matter. Although we do not have insurance coverage for this matter, at this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. On January 16, 1998, our Services Division ceased operations in Angola. The cessation of operations in Angola was dictated by that government's decision to deport all of our expatriate management and supervisors. As a result of the cessation of operations in Angola, our Services Division became involved in various disputes with SHRM S.A.("SHRM"), its minority joint venture partner relating to the Angolan joint venture known as Defense System International Africa ("DSIA"). On March 6, 1998, SIA (a subsidiary of SHRM) filed a complaint against Defense Systems France, SA ("DSF") before the Commercial Court of Nanterre (Tribunal de Commerce de Nanterre) seeking to be paid an amount of $577,286 corresponding to an alleged debt of DSIA to SIA. On June 27, 2000, the judge of the Paris Commercial Court ruled SHRM did not provide evidence required to establish its standing and the proceedings brought by SHRM were cancelled. On October 3, 2000, a winding up petition was served by DSF against DSIA. On October 31, 2000, SHRM filed a counterclaim seeking to have this winding up petition dismissed. On November 28, 2000, SHRM appealed the June 27, 2000 judgment rendered by the Paris Commercial Court, claiming that the Paris Commercial Court no longer had jurisdiction over the case. On September 18, 2001, the Paris Commercial Court stayed the proceeding pending the outcome of the appeal. A hearing with the Court of Appeal on the standing of SHRM and on the merits was held on October 24, 2002. The Commercial Court of Nanterre has stayed the proceedings before it, pending the decisions of the Court of Appeal and the Paris Commercial Court. In February 2003, the Court of Appeal ruled against SHRM and its parent entity, Compass Group, effectively ending all further proceedings on the merits of Compass'claims. The decision is appealable by Compass. 201 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS In 1999 and prior to our acquisition of OHEAC in 2001, O'Gara-Hess & Eisenhardt Armoring do Brasil Ltda. (OHE Brazil) was audited by the Brazilian federal tax authorities and assessed over Ten Million Reals (US$2.8 Million based on the exchange rate as of December 31, 2002). OHE Brazil has appealed the tax assessment and the case is pending. To the extent that there may be any liability, we believe that we are entitled to indemnification from Kroll, Inc. under the terms of our purchase agreement dated April 20, 2001, despite the denial by Kroll, Inc. of any such liability, because the events occurred prior to our purchase of the O'Gara Companies from Kroll, Inc. Additionally, Kroll, Inc. has provided us with a US$1.5 Million letter of credit until August 21, 2008 in order to collateralize Kroll's indemnification obligation, which is capped at US$5 Million with respect to this matter. At this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. In 1999 and prior to our acquisition of OHEAC in 2001, several of the former employees of Kroll O'Gara Company de Mexico, S.A. de C.V. (O'Gara Mexico), a subsidiary of OHEAC, commenced labor claims against O'Gara Mexico seeking damages for unjustified termination. These cases are still pending before the labor board in Mexico City. The terminated employees are seeking back pay and benefits since the date of termination amounting to approximately US $2,890,998, and accruing at approximately US $50,400 per month. To the extent that there may be any liability, we believe that we are entitled to indemnification from Kroll, Inc. under the terms of our purchase agreement dated April 20, 2001, despite the denial by Kroll, Inc. of any such liability, because the events occurred prior to our purchase of the O'Gara Companies from Kroll, Inc. Although we do not have any insurance coverage for this matter, at this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. In August 2001, Defense Technology Corporation of America ("DTC"), one of our subsidiaries, received a civil subpoena from the United States Environmental Protection Agency requesting information pursuant to Section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act regarding the possible impact of the Casper, Wyoming tear gas facility on the environment. DTC responded to the request, and to date the EPA has not taken any further action with respect to the matter. At this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. In December 2001, OHE France sold its industrial bodywork business operated under the name Labbe/Division de O'Gara Hess & Eisenhardt France/ Carrosserie Industriells to SNC Labbe. Subsequent to the sale the Labbe Family Trust (LFT), owner of the leasehold interest upon which the Carrosserie business is operated, sued OHE France and SNC Labbe claiming that transfer of the leasehold was not valid because the LFT had not given its consent to the transfer as required under the terms of the lease. Further, LFT seeks to have OHE France, as the sole tenant, maintain and repair the leased building. The approximate cost of renovating the building is estimated to be between US $3.2 and US $6.4 million based on the exchange rate as of December 31, 2002. The case is currently pending, and while we are contesting the allegations vigorously, we are unable to predict the outcome of this matter. Although we do not have any insurance coverage for this matter, at this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. 202 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS In December 2001, an action was filed against us in the Regional Court of Nuremberg, Germany alleging unauthorized use of the trademarks "First Defense" and "First Defense Aerosol Pepper Projector." The case is currently pending, and while we are contesting the allegations vigorously, we are unable to predict the outcome of this matter. Although we do not have any insurance coverage for this matter, at this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. On or about March 22, 2002, O'Gara-Hess & Eisenhardt Armoring Company (OHEAC), one of our subsidiaries, received a civil subpoena from the Department of Defense (DOD) requesting documents and information concerning various quality control documentation regarding parts delivered by its subcontractors and vendors in support of the High Mobility Multipurpose Wheeled Vehicles (HMMWV) armored at its Fairfield, Ohio facility for the period October 1, 1999 through May 1, 2001. OHEAC has complied fully with the subpoena. In early 2003, OHEAC was advised that the Department of Justice (DOJ) was also investigating separate claims against OHEAC filed by individuals that involve the same time frame and issues covered by the DOD subpoena. OHEAC is responding to the government's questions and expects to meet with the DOJ to discuss the current status of the investigation and explore closure. Given the stage of these investigations, it is not possible to predict the outcome of this matter. To the extent that there may be any liability, we believe that we are entitled to indemnification from Kroll, Inc. under the terms of our purchase agreement dated April 20, 2001, despite the denial by Kroll, Inc. of any such liability, because the events occurred prior to our purchase of the O'Gara Companies from Kroll, Inc. At this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. In June 2002, O'Gara Hess & Eisenhardt France S.A. (OHE France) received a tax reassessment from the French tax authorities for the tax years ended on March 31, 1999, 2000 and 2001 totaling approximately (pounds)720,940 (Euro) (US$755,761 based on the exchange rate as of December 31, 2002). OHE France has appealed the tax assessment and the case is pending. To the extent that there may be any liability, we believe that we are entitled to indemnification from Kroll, Inc. under the terms of our purchase agreement dated April 20, 2001, despite the denial by Kroll, Inc. of any such liability, because the events occurred prior to our purchase of the O'Gara Companies from Kroll, Inc. At this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. On October 18, 2002 we were notified by the Internal Revenue Service that our tax return for the tax year ended December 31, 2000 had been selected for examination. Further, on January 30, 2003 we were notified that our tax return for the tax year ended December 31, 2001 had been selected for examination. The examinations are currently pending, and at this time we are unable to predict the outcome of these matters. In October 2002, we were sued in the United States District Court for the District of Wyoming. The plaintiffs in that lawsuit asserted various state law tort claims and federal environmental law claims under the Resource Conservation and Recovery Act and the Clean Air Act stemming from DTC's Casper, Wyoming tear gas plant. The plaintiffs have not yet quantified their alleged damages. The plaintiffs have filed their suit as a potential class action, but have not yet sought judicial certification of the class. The alleged actions took place over time periods during which we were covered by different insurance policies. We have notified our insurance carriers of the suit. Our prior insurance 203 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS carrier has agreed, under a full reservation of rights, including with respect to any liability which relates to the time its policy was in effect, to provide a defense and to address the question of liability indemnification in the future. Our current insurance carrier has declined defense and indemnification coverage. While we do not carry specific environment insurance coverage, we have reserved the right to challenge our insurance carrier's determination. The case is currently pending, and while we are contesting the allegations vigorously, we are unable to predict the outcome of this matter. At this time, we do not believe this matter will have a material impact on our financial position, operations or liquidity. In addition to the above, in the normal course of business, we are subjected to various types of claims and currently have on-going litigations in the areas of products liability and general liability. Our products are used in a wide variety of law enforcement situations and environments. Some of our products can cause serious personal or property injury or death if not carefully and properly used by adequately trained personnel. We believe that we have adequate insurance coverage for most claims that are incurred in the normal course of business. In such cases, the effect on our financial statements is generally limited to the amount of our insurance deductible or self-insured retention. Our annual insurance premiums and self insurance retention amounts have risen significantly over the past several years and may continue to do so to the extent we are unable to purchase insurance coverage. At this time, we do not believe any such claims or litigations will have a material impact on our financial position, operations and liquidity. 11. OTHER INCOME On May 31, 2000, we sold our investment in JSGS which is Jardine Securicor Gurkha Services Limited for a pre-tax gain of approximately $1.7 million included in other income. 12. INFORMATION CONCERNING BUSINESS SEGMENTS AND GEOGRAPHICAL SALES We are a leading manufacturer and provider of security products, vehicle armor systems, and security training services. Our products and services are used by military, law enforcement, security and corrections personnel throughout the world, as well as governmental agencies, multinational corporations and non-governmental organizations. Our continuing operations are organized and operated under two business segments: Armor Holdings Products and Armor Mobile Security. Our Services division has been classified as discontinued operations and is no longer included in this presentation (See Note 2). Armor Holdings Products. Our Armor Holdings Products division manufactures and sells a broad range of high quality equipment marketed under brand names that are well known and respected in the military and law enforcement communities. Products manufactured by this division include concealable and tactical body armor, hard armor, duty gear, less-lethal munitions, anti-riot products, police batons, emergency lighting products, forensic products firearms accessories and weapon maintenance products. USDS, Inc., a small subsidiary providing certain training services formerly reported as a part of the Services division, is not included in the amounts classified as assets held for sale or discontinued operations and has been reclassified to our Armor Holdings Products division where management oversight currently resides. 204 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Armor Mobile Security. Our Armor Mobile Security division manufactures and installs ballistic and blast protection armoring systems for military vehicles, commercial vehicles, military aircraft and missile components. Under the brand name O'Gara-Hess & Eisenhardt ("O'Gara"), we are the sole-source provider to the U.S. military for the supply of armoring and blast protection systems as well as maintenance services for the High Mobility Multi-purpose Wheeled Vehicle (HMMWV, commonly known as the Humvee). Additionally, we have been subcontracted to develop a ballistically armored and sealed truck cab for the High Mobility Artillery Rocket System (HIMARS) currently in development for the U.S. Army. We armor a variety of commercial vehicles including limousines, sedans, sport utility vehicles, commercial trucks and cash-in-transit vehicles, to protect against varying degrees of ballistic and blast threats. The Armor Mobile Security division was created in connection with our acquisition of O'Gara on August 22, 2001 (the "O'Gara acquisition"). We have invested substantial resources outside of the United States and plan to continue to do so in the future. The Armor Mobile Security division has invested substantial resources in Europe and South America. These operations are subject to the risk of new and different legal and regulatory requirements in local jurisdictions, tariffs and trade barriers, potential difficulties in staffing and managing local operations, currency risks, potential imposition of restrictions on investments, potentially adverse tax consequences, including imposition or increase of withholding and other taxes on remittances and other payments by subsidiaries, and local economic, political and social conditions. Governments of many developing countries have exercised and continue to exercise substantial influence over many aspects of the private sector. Government actions in the future could have a significant adverse effect on economic conditions in a developing country or may otherwise have a material adverse effect on us and our operating companies. We do not have political risk insurance in the countries in which we currently conduct business. Moreover, applicable agreements relating to our interests in our operating companies are frequently governed by foreign law. As a result, in the event of a dispute, it may be difficult for us to enforce our rights. Accordingly, we may have little or no recourse upon the occurrence of any of these developments. 205 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Revenues, operating income and total assets for each of our continuing segments are as follows: 2002 2001 2000 ------------ --------------- --------------- (IN THOUSANDS) Revenues: Products $ 179,946 $ 149,868 $ 139,904 Mobile Security 125,171 47,232 - ----------- ------------- ------------- Total revenues $ 305,117 $ 197,100 $ 139,904 =========== ============= ============= Income (loss) from operations: Products $30,978 $26,845 $27,803 Mobile Security 14,375 6,673 - Corporate (6,988) (6,845) (7,934) ----------- ------------- ------------- Total income from operations $38,365 $26,673 $19,869 =========== ============= ============= Total assets: Products $179,367 $ 147,313 $ 129,432 Mobile Security 105,446 102,127 - Corporate 23,830 49,950 9,596 ---------- ------------- ------------- Total assets $308,643 $ 299,390 $ 139,028 ========== ============= ============= 206 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The following financial information with respect to revenues, operating income from continuing operations (geographic operating income from continuing operations before amortization expense and integration and other non-recurring charges) and total assets to principal geographic areas are as follows: 2002 2001 2000 --------------- --------------- --------------- (IN THOUSANDS) Revenues: North America $ 225,365 $ 144,981 $ 117,199 South America 19,879 6,449 3,434 Africa 1,219 582 167 Europe/Asia 58,654 45,088 16,078 Other - - 3,026 --------------- --------------- --------------- $ 305,117 $ 197,100 $ 139,904 =============== =============== =============== Geographic operating income: North America $34,032 $23,290 $19,376 South America 1,702 473 982 Africa 428 192 57 Europe/Asia 8,374 8,156 3,019 Other - - 727 --------------- --------------- --------------- $44,536 $32,111 $24,161 =============== =============== =============== Total assets: North America $ 264,767 $268,019 $ 132,744 South America 5,456 5,811 - Africa - - - Europe/Asia 38,420 25,560 6,284 --------------- --------------- --------------- $ 308,643 $ 299,390 $ 139,028 =============== =============== =============== A reconciliation of consolidated geographic operating income from continuing operations to consolidated operating income from continuing operations follows:
2002 2001 2000 --------------- --------------- --------------- (IN THOUSANDS) Consolidated geographic operating income: $44,536 $32,111 $24,161 Amortization (245) (2,142) (1,704) Integration and other non-recurring charges (5,926) (3,296) (2,588) --------------- --------------- --------------- Operating income $38,365 $26,673 $19,869 =============== =============== ===============
207 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 13. INCOME TAXES Income tax expense (benefit) from continuing operations for the years ended December 31, 2002, 2001, and 2000 consisted of the following:
2002 2001 2000 -------------- --------------- -------------- (IN THOUSANDS) Current Domestic $13,306 $ 7,017 $ 6,239 Foreign 2,389 1,563 232 -------------- --------------- -------------- Total current $15,695 $ 8,580 $ 6,471 -------------- --------------- -------------- Deferred Domestic $(25) $ (319) $ 769 Foreign 384 (54) 0 -------------- --------------- -------------- Total deferred $ 359 $ (373) $ 769 -------------- --------------- -------------- Total provision for Income Taxes $16,054 $ 8,207 $ 7,240 -------------- --------------- --------------
Significant components of our net deferred tax asset related to continuing operations as of December 31, 2002 and 2001 are as follows: 2002 2001 ------------- ------------ (IN THOUSANDS) Deferred tax assets: Reserves not currently deductible $2,697 $1,910 Operating loss carryforwards 1,769 666 Accrued expenses 220 0 Foreign tax credits 2,939 0 Research and development and other credits 206 222 Tax on unremitted foreign earnings 1,255 1,619 ------------- ------------ 9,086 4,417 Deferred tax asset valuation allowance (75) (75) ------------- ------------ Deferred tax asset, net of valuation allowance $9,011 $4,342 Deferred tax liability: Goodwill not amortized for financial statement purposes under SFAS 142 (954) (239) Property and equipment (475) (318) ------------- ------------ Net deferred tax asset $7,582 $3,785 ============= ============ Effective with the change in control of Armor Holdings by Kanders Florida Holdings, Inc. on January 18, 1996, the utilization of the United States portion of the NOL became restricted to approximately $300,000 per year. As of December 31, 2002, we had U.S. and foreign NOLs of approximately $4.6 million. The U.S. portion of the net NOLs expire in varying amounts in fiscal years 2006 to 2019. At December 31, 2002, we also have tax credits of $206,000 subject to certain limitations due to the 208 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS acquisition of Safariland, LTD. We also have approximately $2.9 million in foreign tax credits expiring in 2006. Certain deferred tax assets including net operating losses and tax credits could become limited if there is a change of control as defined in IRC Section 382. The realization of deferred tax assets may be based on the utilization of carrybacks to prior taxable periods, the anticipation of future taxable income and the utilization of tax planning strategies. Management has determined that it is more likely than not that certain deferred tax assets can be supported by carrybacks to federal taxable income in the federal carryback period and by expected future taxable income. US taxes have not been provided for on unremitted foreign earnings of approximately $3 million from continuing operations. These earnings are considered to be permanently reinvested in non-US operations. We are not permanently reinvested in some jurisdictions and have established a deferred tax asset of $1,255,000. Net deferred tax assets described above have been included in the accompanying consolidated balance sheets as follows: 2002 2001 ------------ ----------- Other current assets $ 2,697 $ 1,910 Other assets 4,885 1,875 ------------ ----------- Total deferred tax assets $ 7,582 $ 3,785 ============ =========== The following reconciles the income tax expense computed at the Federal statutory income tax rate to the provision for income taxes recorded in the income statement for the years ended December 31, 2002, 2001 and 2000:
2002 2001 2000 --------- ---------- ----------- Provision for income taxes at statutory federal rate 35.0% 35.0% 35.0% State and local income taxes, net of Federal benefit 3.8% 3.2% 1.4% Foreign income taxes .7% (.1%) - Valuation allowances from discontinued operations 3.8% - - Other permanent items (.4%) (2.2%) 3.6% --------- ---------- ----------- 42.9% 35.9% 40.0% ========= ========== ===========
14. STOCKHOLDERS' EQUITY Preferred stock. On July 16, 1996, our shareholders authorized a series of preferred stock with such rights, privileges and preferences as the Board of Directors shall from time to time determine. We have not issued any of this preferred stock. Stock options and grants. In 1994, we implemented an incentive stock plan and an outside directors' stock plan. These plans collectively provide for the granting of options to certain key employees as well as providing for the grant of common stock to outside directors and to all full 209 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS time employees. Pursuant to such plans, 1,050,000 shares of common stock were reserved and made available for distribution. The option prices of stock which may be purchased under the incentive stock plan are not less than the fair market value of common stock on the dates of the grants. Effective January 19, 1996, all stock grants awarded under the 1994 incentive stock plan were accelerated and considered fully vested. In 1996, we implemented an incentive stock plan and an outside directors' stock plan. These plans collectively provide for the granting of options to certain key employees and directors. Pursuant to such plans, as amended, 2,200,000 shares of common stock were reserved and made available for distribution. The option prices of stock which may be purchased under the incentive stock plan are not less than the fair market value of common stock on the dates of the grants. During 1998, we implemented a new non-qualified stock option plan. Pursuant to the new plan, 725,000 shares of common stock were reserved and made available for distribution. On January 1, 1999, we distributed all 725,000 shares allocated under the plan. In 1999, we implemented the 1999 Stock Incentive Plan (the "1999 Plan"). We reserved 2,000,000 shares of its Common Stock for the 1999 Plan. The 1999 Plan provides for the granting of options to employees, officers, directors, consultants, independent contractors and advisors of Armor Holdings. The option prices of stock which may be purchased under the 1999 Plan are not less than the fair market value of common stock on the dates of the grants. During 2002, we implemented two new stock option plans. The 2002 Stock Incentive Plan, authorizes the issuance of up to 2,700,000 shares of our common stock upon the exercise of stock options or in connection with the issuance of restricted stock and stock bonuses. The 2002 Stock Incentive Plan authorizes the granting of stock options, restricted stock and stock bonuses to employees, officers, directors and consultants, independent contractors and advisors of Armor Holdings and its subsidiaries. The 2002 Executive Stock Plan provides for the grant of a total of 470,000 stock options and stock awards to our key employees. The terms and provisions of the 2002 Executive Stock Plan are substantially the same as the 2002 Stock Incentive Plan, except that we may only grant non-qualified stock options under the 2002 Executive Stock Plan. The 2002 Executive Stock Plan was adopted on March 13, 2002 and all shares available for grant under the 2002 Executive Stock Plan were granted to our executive officers on March 13, 2002. On December 18, 2002, we sold a put option on 500,000 shares to an institutional counterparty with an exercise price of $13.99 per share and an expiration date of March 31, 2002 for $525,000. We have a maximum potential obligation under the put options to purchase 500,000 shares of our common stock at an exercise price of $13.99 for an aggregate of $7.0 million. Although certain other events can trigger exercise these put options are generally exercisable only at maturity on March 31, 2002. We have the right to settle the put options by cash settlement, physical settlement of the options or by net share settlement using shares our common stock. In accordance with EITF Issue No. 00-19, we have recorded the sale of the put options in equity and as such, changes in fair value of the options have not been recognized in the financial statements. We may, from time to time, enter into additional put and call option arrangements. 210 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Under SFAS 123, the fair value of each option grant is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted-average assumptions for the years ended December 31, 2002, 2001 and 2000: 2002 2001 2000 --------- --------- ---------- Expected life of option 4 yrs 4 yrs 4 yrs Dividend yield 0% 0% 0% Volatility 52.2% 44.7% 30.9% Risk free interest rate 3.94% 4.52% 5.76% The increase in volatility from fiscal 2000 to fiscal 2002 is primarily due to the increase demand for the stock, which drove up the price and increased the volatility. The weighted average fair value of options granted during 2002, 2001 and 2000 are as follows:
2002 2001 2000 ----------------- ----------- ------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Fair value of each option granted $ 10.08 $ 6.17 $ 4.79 Total number of options granted 1,895 892 185 Total fair value of all options granted $19,098 $5,501 $886
Outstanding options, consisting of ten-year incentive and non-qualified stock options, vest and become exercisable over a three-year period from the date of grant. The outstanding options expire ten years from the date of grant or upon retirement from Armor Holdings, and are contingent upon continued employment during the applicable ten-year period. 211 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS A summary of the status of stock option grants as of December 31, 2002 and changes during the years ending on those dates is presented below:
WEIGHTED AVERAGE OPTIONS EXERCISE PRICE -------------------- -------------------- Outstanding at December 31, 1999 3,545,258 $ 9.21 Granted 185,000 $14.37 Exercised (333,075) $ 4.57 Forfeited (102,344) $10.98 -------------------- Outstanding at December 31, 2000 3,294,839 $ 9.91 Granted 892,159 $15.24 Exercised (1,173,227) $ 9.37 Forfeited (29,737) $15.51 -------------------- Outstanding at December 31, 2001 2,984,034 $11.60 Granted 1,894,660 $22.96 Exercised (507,868) $ 8.41 Forfeited (86,168) $16.75 -------------------- Outstanding at December 31, 2002 4,284,658 $ 7.81 ==================== Options exercisable at December 31, 2002 2,099,307 $ 6.42 ====================
The following table summarizes information about stock options outstanding at December 31, 2002: 12/31/2002 REMAINING OPTIONS OPTIONS LIFE IN EXERCISE PRICE RANGE OUTSTANDING EXERCISABLE YEARS ------------------ ----------------- --------- 0.97 - 3.75 93,357 93,357 3.0 7.50 - 9.94 255,292 255,292 5.0 10.00 - 10.63 141,671 138,337 5.2 11.00 - 11.63 762,844 759,510 5.8 12.00 - 12.03 65,002 58,334 5.2 13.19 - 14.00 309,668 223,668 7.3 14.17 - 14.70 444,492 187,322 8.7 15.05 - 15.90 347,994 94,331 8.8 16.31 - 16.50 62,667 9,000 8.0 17.00 - 17.54 105,170 30,156 8.3 21.75 - 21.75 125,000 - 9.1 23.09 - 23.93 689,501 225,000 9.2 24.07 - 25.80 882,000 25,000 9.5 ------------------ ----------------- Total 4,284,658 2,099,307 ================== ================= 212 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Remaining non-exercisable options as of December 31, 2002 become exercisable as follows: 2003 775,961 2004 991,358 2005 168,032 2006 250,000 Earnings per share. The following details the earnings per share computations on a basic and diluted basis for the years ended December 31, 2002, 2001 and 2000:
2002 2001 2000 --------------------------------------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Numerator for basic and diluted earnings per share: Net (loss) income available to common shareholders $(17,689) $10,128 $17,048 -------------- -------------- --------------- Denominator: Basic earnings per share weighted average shares outstanding 30,341 23,932 22,630 Effect of dilutive securities: Effect of shares issuable under stock option and stock grant plans, based on the treasury stock method 616 836 726 -------------- -------------- --------------- Diluted earnings per share Adjusted weighted-average shares outstanding 30,957 24,768 23,356 -------------- -------------- --------------- Basic earnings per share $(0.58) $ 0.42 $ 0.75 ============== ============== =============== Diluted earnings per share $(0.57) $ 0.41 $ 0.73 ============== ============== =============== 15. SUPPLEMENTAL CASH FLOW INFORMATION: 2002 2001 2000 ------------- ----------------- --------------- Cash paid during the year for: (IN THOUSANDS) Interest $ 527 $ 3,878 $ 1,762 ============= ================= =============== Income taxes $5,753 $ 4,656 $ 7,240 ============= ================= =============== 2002 2001 2000 ------------- ----------------- --------------- Acquisitions of businesses, net of cash acquired: (IN THOUSANDS) Fair value of assets acquired $ 16,134 $57,932 $ 4,807 Goodwill 8,478 37,578 12,336 Liabilities assumed (15,794) (36,541) (2,923) Stock issued - (19,604) - ------------- ----------------- --------------- Total cash paid $ 8,818 $39,365 $14,220 ============= ================= =============== Debt assumed in acquisition of property - - $ 3,500 Note payable issued for equipment - - -
213 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 16. QUARTERLY RESULTS (UNAUDITED) The following table presents summarized unaudited quarterly results of operations for Armor Holdings for fiscal 2002 and 2001. We believe all necessary adjustments have been included in the amounts stated below to present fairly the following selected information when read in conjunction with the Consolidated Financial Statements and Notes thereto included elsewhere herein. Future quarterly operating results may fluctuate depending on a number of factors. Results of operations for any particular quarter are not necessarily indicative of results of operations for a full year or any other quarter.
FISCAL 2002 ---------------------------------------------------------------- FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER -------------- -------------- ------------ --------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Revenue $ 69,604 $ 71,605 $80,557 $83,351 Gross profit $ 21,974 $ 22,701 $24,610 $25,087 Net income $ 5,960 $ 4,075 $(14,707) $(13,017) Basic earnings per share $ 0.19 $ 0.13 $ (0.50) $ (0.44) Diluted earnings per share $ 0.19 $ 0.13 $ (0.49) $ (0.44) FISCAL 2001 ------------------------------------------------------------- FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER ------------- -------------- ------------ ------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Revenue $ 30,168 $ 38,100 $ 48,664 $ 80,168 Gross profit $ 12,190 $ 15,865 $ 17,227 $ 25,488 Net income $ (3,396) $ 4,298 $ 3,823 $ 5,403 Basic earnings per share $ (0.15) $ 0.19 $ 0.16 $ 0.21 Diluted earnings per share $ (0.14) $ 0.18 $ 0.16 $ 0.20
17. EMPLOYEE BENEFITS PLAN In October 1997, we formed a 401(k) plan, (the "Plan") which provides for voluntary contributions by employees and allows for a discretionary contribution by us in the form of cash. We made contributions of approximately $395,500, $272,700 and $243,000 to the Plan in 2002, 2001 and 2000 respectively. 18. RELATED PARTY TRANSACTIONS In fiscal 2000 we subcontracted for certain security guard services with Alpha, Inc., wholly owned by a shareholder of Armor Holdings, who is also a director of Gorandel Trading Limited. In fiscal 2000, security guard service fees of approximately $2,444,000 were paid to Alpha. In August of 2000, we acquired Alpha. The purchase price was approximately $1.0 million in cash consisting of both a current and deferred portion. In fiscal 2002 and 2001 we paid $100,000 and $400,000 of the deferred portion of the purchase price respectively. 214 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Effective as of January 1, 2002, Kanders & Company, Inc. ("Kanders & Co."), a corporation controlled by Warren B. Kanders, the Chairman of our Board, entered into an agreement with us to provide certain investment banking, financial advisory and related services for a five year term that will expire December 31, 2006. Kanders & Co. will receive a mutually agreed upon fee on a transaction by transaction basis during the term of this agreement. The aggregate fees under this agreement will not exceed $1,575,000 during any calendar year. We also agreed to reimburse Kanders & Co. for reasonable out-of-pocket expenses including Kanders & Co.'s expenses for office space, an executive assistant, furniture and equipment, travel and entertainment, reasonable fees and disbursements of counsel, and consultants retained by Kanders & Co. During the fiscal year ended December 31, 2002, we paid Kanders & Co. $525,000 for investment banking services. We also reimbursed Kanders & Co. for out-of-pocket expenses in the aggregate amount of $302,000 during the fiscal year ended December 31, 2002. We also granted Kanders & Co. (i) options to purchase 35,000 shares of our common stock at an exercise price per share equal to $23.93, (ii) a restricted stock grant of 10,447 shares of common stock valued at $15.04 per share and (iii) a restricted stock grant of 100,000 shares of common stock valued at $15.04 per share. These grants were made during fiscal 2002 in consideration for consulting services provided by Kanders & Co. in connection with certain transactions during fiscal 2001. During the fiscal year ended December 31, 2002 we paid our Director Nicholas Sokolow's law firm Sokolow, Dunaud, Mercadier & Carreras $28,000 for legal services in connection with various acquisitions. 19. OPERATING LEASES We are party to certain real estate, equipment and vehicle leases. Several leases include options for renewal and escalation clauses. In most cases, management expects that in the normal course of business leases will be renewed or replaced by other leases. Approximate total future minimum annual lease payments under all non-cancelable leases of continuing operations are as follows: YEAR (IN THOUSANDS) ----------------------- --------------------- 2003 $1,141 2004 840 2005 365 2006 66 2007 51 Thereafter - --------------------- $2,463 ===================== We incurred rent expense of approximately $1,200,000, $765,000 and $394,000 during the years ended December 31, 2002, December 31, 2001 and December 31, 2000. 215 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 20. GUARANTOR AND NONGUARANTOR FINANCIAL STATEMENTS We have entered into an agreement to sell an aggregate of $150 million of Senior Subordinated Notes in private placements pursuant to Rule 144A. The Senior Subordinated Notes will be unsecured obligations and will rank junior in right of payment to our existing and future senior debt. The Senior Subordinated Notes will be fully guaranteed, jointly and severally on a senior unsecured basis, by certain domestic subsidiaries. The following consolidating financial information presents the consolidating balance sheets as of December 31, 2002 and 2001 and the related statements of income and cash flows for each of the three years in the period ended December 31, 2002 for: a) Armor Holdings, Inc., the parent, b) the guarantor subsidiaries, c) the nonguarantor subsidiaries, and d) Armor Holdings on a consolidated basis The information includes elimination entries necessary to consolidate Armor Holdings, Inc., the parent, with the guarantor and nonguarantor subsidiaries. Investments in subsidiaries are accounted for by the parent using the equity method of accounting. The guarantor and nonguarantor subsidiaries are presented on a combined basis. The principal elimination entries eliminate investments in subsidiaries and intercompany balances and transactions. Separate financial statements for the guarantor and nonguarantor subsidiaries are not presented because management believes such financial statements would not be meaningful to investors. 216 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING BALANCE SHEETS
YEAR ENDED DECEMBER 31, 2002 -------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ------------ --------------- ------------- ------------- (IN THOUSANDS) ASSETS Current Assets: Cash and cash equivalents $ 7,152 $ 3,556 $ 2,205 $ -- $ 12,913 Accounts receivable, net -- 44,864 13,649 -- 58,513 Costs and earned gross profit in excess -- 234 -- -- 234 Intercompany receivables 123,744 33,165 3,800 (160,709) -- Inventories -- 46,591 15,739 -- 62,330 Prepaid expenses and other current assets 12,490 21,999 2,368 (24,645) 12,212 Current assets of discontinued operations -- 10,351 18,474 -- 28,825 ---------- ------------ --------------- ------------- ------------- Total Current Assets 143,386 160,760 56,235 (185,354) 175,027 Property and equipment, net 2,456 27,250 17,430 -- 47,136 Goodwill, net -- 96,903 1,833 -- 98,736 Patents, licenses and trademarks, net -- 7,326 195 -- 7,521 Other assets 916 6,872 1,260 -- 9,048 Long-term assets of discontinued operations -- 6,910 23,375 -- 30,285 Investment in subsidiaries 161,805 10,078 -- (171,883) -- ---------- ------------ --------------- ------------- ------------- Total Assets $308,563 $ 316,099 $ 100,328 $ (357,237) $ 367,753 ========== ============ =============== ============= ============= LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Current portion of long-term debt $ $ 1,813 $ -- $ -- $ 1,813 Short-term debt -- -- 599 -- 599 Accounts payable 828 15,751 7,191 -- 23,770 Accrued expenses and other current liabilities 1,790 11,324 12,002 -- 25,116 Income taxes payable 4,831 (148) 1,230 -- 5,913 Intercompany payables 13,037 115,658 10,434 (139,129) -- Current liabilities of discontinued operations -- 14,267 24,538 (21,580) 17,225 ---------- ------------ --------------- ------------- ------------- Total Current Liabilities 20,486 158,665 55,994 (160,709) 74,436 Long-term debt, less current portion -- 5,072 -- -- 5,072 Long-term liabilities of discontinued operations -- 13,022 11,791 (24,645) 168 ---------- ------------ --------------- ------------- ------------- Total Liabilities 20,486 176,759 67,785 (185,354) 79,676 Stockholders' Equity: Preferred stock -- 1,450 -- (1,450) -- Common stock 336 5,681 26,318 (31,999) 336 Additional paid in capital 307,487 73,836 10,016 (83,852) 307,487 Retained earnings (accumulated deficit) 34,056 58,373 (3,791) (54,582) 34,056 Accumulated other comprehensive loss (4,169) -- -- -- (4,169) Treasury stock (49,633) -- -- -- (49,633) ---------- ------------ --------------- ------------- ------------- Total Stockholders' Equity 288,077 139,340 32,543 (171,883) 288,077 ---------- ------------ --------------- ------------- ------------- Total Liabilities and Stockholders' Equity $308,563 $ 316,099 $ 100,328 $ (357,237) $ 367,753 ========== ============ =============== ============= =============
217 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING BALANCE SHEETS
YEAR ENDED DECEMBER 31, 2001 -------------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ------------ --------------- ------------- ------------- (IN THOUSANDS) ASSETS Current Assets: Cash and cash equivalents $ 38,627 $ 5,536 $ 3,326 $ -- $ 47,489 Accounts receivable, net 5 35,190 14,924 -- 50,119 Costs and earned gross profit in excess of billings -- 5,451 -- -- 5,451 Intercompany receivables 117,184 8,736 832 (126,752) -- Inventories -- 40,891 9,662 -- 50,553 Prepaid expenses and other current assets 12,891 22,440 1,983 (28,367) 8,947 Current assets of discontinued operations -- 12,022 25,540 -- 37,562 ---------- ------------ --------------- ------------- ------------- Total Current Assets 168,707 130,266 56,267 (155,119) 200,121 Property and equipment, net 2,395 28,313 5,996 -- 36,704 Goodwill, net -- 85,594 1,214 -- 86,808 Patents, licenses and trademarks, net -- 6,695 -- -- 6,695 Other assets 1,047 3,802 1,775 -- 6,624 Long-term assets of discontinued operations -- 20,387 33,733 (3,015) 51,105 Investment in subsidiaries 158,459 7,685 -- (166,144) -- ---------- ------------ --------------- ------------- ------------- Total Assets $330,608 $ 282,742 $ 98,985 $ (324,278) $ 388,057 ========== ============ =============== ============= ============= LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Current portion of long-term debt $ -- $ 1,773 $ -- $ -- $ 1,773 Short-term debt -- -- 709 -- 709 Accounts payable 613 11,538 9,293 -- 21,444 Accrued expenses and other current liabilities 3,649 14,167 7,980 -- 25,796 Income taxes payable -- -- -- -- -- Intercompany payables 327 97,169 6,908 (104,404) -- Current liabilities of discontinued operations -- 9,228 21,604 (23,156) 7,676 ---------- ------------ --------------- ------------- ------------- Total Current Liabilities 4,589 133,875 46,494 (127,560) 57,398 Long-term debt, less current portion -- 4,225 -- -- 4,225 Long-term liabilities of discontinued operations -- 16,128 11,846 (27,559) 415 ---------- ------------ --------------- ------------- ------------- Total Liabilities 4,589 154,228 58,340 (155,119) 62,038 Stockholders' Equity: Preferred stock -- 1,450 -- (1,450) -- Common stock 331 6,119 18,738 (24,857) 331 Additional paid in capital 301,995 72,576 8,507 (81,083) 301,995 Retained earnings 51,745 48,369 13,400 (61,769) 51,745 Accumulated other comprehensive loss (4,473) -- -- -- (4,473) Treasury stock (23,579) -- -- -- (23,579) ---------- ------------ --------------- ------------- ------------- Total Stockholders' Equity 326,019 128,514 40,645 (169,159) 326,019 ---------- ------------ --------------- ------------- ------------- Total Liabilities and Stockholders' Equity $330,608 $ 282,742 $ 98,985 $ (324,278) $ 388,057 ========== ============ =============== ============= =============
218 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING INCOME STATEMENTS
YEAR ENDED DECEMBER 31, 2002 ----------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ----------- -------------- ------------- ------------- (IN THOUSANDS) REVENUES: Products $ -- $ 154,466 $ 25,480 $ -- $ 179,946 Mobile Security -- 75,276 49,895 -- 125,171 ---------- ----------- -------------- ------------- ------------- Total revenues -- 229,742 75,375 -- 305,117 ---------- ----------- -------------- ------------- ------------- COSTS AND EXPENSES: Cost of sales -- 148,208 62,537 -- 210,745 Operating expenses 6,034 36,161 7,641 -- 49,836 Amortization -- 243 2 -- 245 Integration and other non-recurring charges 800 5,126 -- -- 5,926 Related party management fees (income), net 2,487 (171) (616) (1,700) -- ---------- ----------- -------------- ------------- ------------- OPERATING (LOSS) INCOME (9,321) 40,175 5,811 1,700 38,365 Interest expense, net 450 275 198 -- 923 Other (income) expense, net (2) (22) 75 -- 51 Equity in losses (earnings) of subsidiaries 8,237 (1,220) -- (7,017) -- Related party interest income, net -- (239) -- 239 -- ---------- ----------- -------------- ------------- ------------- (LOSS) INCOME FROM CONTINUING OPERATIONS BEFORE PROVISION FOR INCOME TAXES (18,006) 41,381 5,538 8,478 37,391 (BENEFIT) PROVISION FOR INCOME TAXES (317) 14,313 2,058 -- 16,054 ---------- ----------- -------------- ------------- ------------- (LOSS) INCOME FROM CONTINUING OPERATIONS (17,689) 27,068 3,480 8,478 21,337 DISCONTINUED OPERATIONS: LOSS FROM DISCONTINUED OPERATIONS BEFORE BENEFIT FOR INCOME TAXES -- (17,678) (22,329) (1,461) (41,468) BENEFIT FOR INCOME TAXES -- (784) (1,658) -- (2,442) ---------- ----------- -------------- ------------- ------------- NET LOSS FROM DISCONTINUED OPERATIONS -- (16,894) (20,671) (1,461) (39,026) ---------- ----------- -------------- ------------- ------------- NET (LOSS) INCOME $(17,689) $ 10,174 $ (17,191) $ 7,017 $ (17,689) ========== =========== ============== ============= =============
219 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING INCOME STATEMENTS
YEAR ENDED DECEMBER 31, 2001 ----------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ------------ ------------ ------------ ------------ (IN THOUSANDS) REVENUES: Products $ -- $ 134,006 $ 15,862 $ -- $ 149,868 Mobile Security -- 25,221 22,011 -- 47,232 ---------- ----------- -------------- ------------- ------------- Total revenues -- 159,227 37,873 -- 197,100 ---------- ----------- -------------- ------------- ------------- COSTS AND EXPENSES: Cost of sales -- 95,831 30,499 -- 126,330 Operating expenses 5,451 30,418 2,790 -- 38,659 Amortization -- 2,059 83 -- 2,142 Integration and other non-recurring charges 1,205 2,079 12 -- 3,296 Related party management income, net (47) -- (1,112) 1,159 -- ---------- ----------- -------------- ------------- ------------- OPERATING (LOSS) INCOME (6,609) 28,840 5,601 (1,159) 26,673 Interest expense, net 3,452 360 52 -- 3,864 Other income, net -- (28) (54) -- (82) Equity in earnings of subsidiaries (14,269) (1,513) -- 15,782 -- Related party interest income, net -- (1,310) -- 1,310 -- ---------- ----------- -------------- ------------- ------------- INCOME FROM CONTINUING OPERATIONS BEFORE PROVISION FOR INCOME TAXES 4,208 31,331 5,603 (18,251) 22,891 (BENEFIT) PROVISION FOR INCOME TAXES (5,920) 12,215 1,912 -- 8,207 ---------- ----------- -------------- ------------- ------------- INCOME FROM CONTINUING OPERATIONS 10,128 19,116 3,691 (18,251) 14,684 DISCONTINUED OPERATIONS: LOSS FROM DISCONTINUED OPERATIONS BEFORE (BENEFIT) PROVISION FOR INCOME TAXES -- (4,558) (4,977) 2,469 (7,066) (BENEFIT) PROVISION FOR INCOME TAXES -- (2,668) 158 -- (2,510) ---------- ----------- -------------- ------------- ------------- NET LOSS FROM DISCONTINUED OPERATIONS -- (1,890) (5,135) 2,469 (4,556) ---------- ----------- -------------- ------------- ------------- NET INCOME (LOSS) $ 10,128 $ 17,226 $ (1,444) $ (15,782) $ 10,128 ========== =========== ============== ============= =============
220 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING INCOME STATEMENTS
YEAR ENDED DECEMBER 31, 2000 ----------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ---------- ------------ ------------ ------------ ------------ (IN THOUSANDS) REVENUES: Products $ -- $ 127,697 $ 12,207 $ -- $ 139,904 Mobile Security -- -- -- -- -- ---------- ----------- -------------- ------------- ------------- Total revenues -- 127,697 12,207 -- 139,904 ---------- ----------- -------------- ------------- ------------- COSTS AND EXPENSES: Cost of sales -- 75,601 9,856 -- 85,457 Operating expenses 6,496 23,108 682 -- 30,286 Amortization -- 1,616 88 -- 1,704 Integration and other non-recurring charges 1,351 1,237 -- -- 2,588 Related party management (income) fees, net (1,134) 280 (236) 1,090 -- ---------- ----------- -------------- ------------- ------------- OPERATING (LOSS) INCOME (6,713) 25,855 1,817 (1,090) 19,869 Interest expense, net 1,753 87 9 -- 1,849 Other (income) expense, net (1,709) 1,642 -- -- (67) Equity in earnings of subsidiaries (21,226) -- -- 21,226 -- Related party interest income, net -- (1,251) -- 1,251 -- ---------- ----------- -------------- ------------- ------------- INCOME FROM CONTINUING OPERATIONS BEFORE (BENEFIT) PROVISION FOR INCOME TAXES 14,469 25,377 1,808 (23,567) 18,087 (BENEFIT) PROVISION FOR INCOME TAXES (2,579) 9,406 413 -- 7,240 ---------- ----------- -------------- ------------- ------------- INCOME (LOSS) FROM CONTINUING OPERATIONS 17,048 15,971 1,395 (23,567) 10,847 DISCONTINUED OPERATIONS: INCOME FROM DISCONTINUED OPERATIONS BEFORE PROVISION FOR INCOME TAXES -- 1,763 4,199 2,341 8,303 PROVISION FOR INCOME TAXES -- 1,938 164 -- 2,102 ---------- ----------- -------------- ------------- ------------- NET (LOSS) INCOME FROM DISCONTINUED OPERATIONS -- (175) 4,035 2,341 6,201 ---------- ----------- -------------- ------------- ------------- NET INCOME $ 17,048 $ 15,796 $ 5,430 $ (21,226) $ 17,048 ========== =========== ============== ============= =============
221 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING STATEMENTS OF CASH FLOWS
YEAR ENDED DECEMBER 31, 2002 --------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ------------- ------------ ------------ ------------ ------------ (IN THOUSANDS) CASH FLOWS FROM OPERATING ACTIVITIES: (Loss) income from continuing operations: $(17,689) $ 27,068 $ 3,480 $ 8,478 $ 21,337 Adjustments to reconcile (loss) income from continuing operations to cash used in operating activities: Depreciation and amortization 854 3,583 1,143 -- 5,580 Deferred income taxes (364) 321 402 359 Loss on disposal of fixed assets -- 66 134 -- 200 Changes in operating assets and liabilities, net of acquisitions: (Increase) decrease in accounts receivable -- (3,829) 1,275 -- (2,554) Decrease (increase) in intercompany receivables & payables 6,151 (5,266) 576 (1,461) -- Increase in inventory -- (5,125) (4,256) -- (9,381) Decrease (increase) in prepaid expenses and other assets 492 (2,459) (279) -- (2,246) (Decrease) increase in accounts payable, accrued expenses and other current liabilities (1,405) 7,215 (9,564) -- (3,754) Increase (decrease) in income taxes payable 5,663 (148) 1,230 -- 6,745 ----------- ----------- ------------ ----------- ------------ Net cash (used in) provided by operating activities (6,298) 21,426 (5,859) 7,017 16,286 ----------- ----------- ------------ ----------- ------------ CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment (506) (3,671) (1,725) -- (5,902) Purchase of patents and trademarks -- (69) -- -- (69) Additional consideration for purchased businesses -- (9,375) -- -- (9,375) Investment in subsidiaries (3,347) 1,643 8,721 (7,017) -- Purchase of businesses, net of cash acquired -- (8,818) -- -- (8,818) ----------- ----------- ------------ ----------- ------------ Net cash (used in) provided by investing activities: (3,853) (20,290) 6,996 (7,017) (24,164) ----------- ----------- ------------ ----------- ------------ CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from exercise of stock options 4,227 -- -- -- 4,227 Proceeds from of sale of put options 525 -- -- -- 525 Cash paid for offering costs (326) -- -- -- (326) Repurchase of treasury stock (26,054) -- -- -- (26,054) Repayments of long-term debt -- (620) (110) -- (730) Borrowings under lines of credit 32,372 -- -- -- 32,372 Repayments under lines of credit (32,372) (75) -- -- (32,447) ----------- ----------- ------------ ----------- ------------ Net cash used in financing activities (21,628) (695) (110) -- (22,433) ----------- ----------- ------------ ----------- ------------ Effect of exchange rate on cash and cash equivalents 304 342 (772) -- (126) Net cash used in discontinued operations -- (2,763) (1,376) -- (4,139) ----------- ----------- ------------ ----------- ------------ NET INCREASE IN CASH AND CASH EQUIVALENTS (31,475) (1,980) (1,121) -- (34,576) CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 38,627 5,536 3,326 -- 47,489 ----------- ----------- ------------ ----------- ------------ CASH AND CASH EQUIVALENTS, END OF PERIOD $ 7,152 $ 3,556 $ 2,205 $ -- $ 12,913 =========== =========== ============ =========== ============
222 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING STATEMENTS OF CASH FLOWS
YEAR ENDED DECEMBER 31, 2001 --------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ----------- ------------ ------------ ------------ ------------ (IN THOUSANDS) CASH FLOWS FROM OPERATING ACTIVITIES: Income from continuing operations: $ 10,128 $ 19,116 $ 3,691 $(18,251) $ 14,684 Adjustments to reconcile income from continuing operations to cash used in operating activities: Depreciation and amortization 694 4,578 342 -- 5,614 Deferred income taxes 76 (407) (42) (373) Loss on disposal of fixed assets -- 21 170 -- 191 Changes in operating assets and liabilities, net of acquisitions: Increase in accounts receivable -- (11,880) (3,000) -- (14,880) (Increase) decrease in intercompany receivables & payables (67,323) 62,878 1,976 2,469 -- (Increase) decrease in inventory -- (12,044) 8,096 -- (3,948) Decrease (increase) in prepaid expenses and other assets 162 (92) 979 -- 1,049 Increase (decrease) in accounts payable, accrued expenses and other current liabilities 4,632 6,317 (3,768) -- 7,181 Increase (decrease) in income taxes payable 6,667 272 (272) -- 6,667 ------------ ----------- ----------- ---------- ------------- Net cash (used in) provided by operating activities (44,964) 68,759 8,172 (15,782) 16,185 ------------ ----------- ----------- ---------- ------------- CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment (1,140) (3,984) (520) -- (5,644) Proceeds from sale of equity investment 843 -- -- -- 843 Additional consideration for purchased businesses (1,913) (1,357) -- -- (3,270) Investment in subsidiaries (6,739) (15,360) 6,317 15,782 -- Purchase of businesses, net of cash acquired -- (39,365) -- -- (39,365) ------------ ----------- ----------- ---------- ------------- Net cash (used in) provided by investing activities: (8,949) (60,066) 5,797 15,782 (47,436) ------------ ----------- ----------- ---------- ------------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from exercise of stock options 10,160 -- -- -- 10,160 Proceeds from of issuance of common stock 117,979 -- -- -- 117,979 Cash paid for offering costs (545) -- -- -- (545) Repurchase of treasury stock (723) -- -- -- (723) Proceeds from issuance of treasury shares for stock options 686 -- -- -- 686 Repayments of long-term debt -- (676) -- -- (676) Repayments of debt assumed in acquisitions -- (1,315) -- -- (1,315) Borrowings under lines of credit 98,000 -- 286 -- 98,286 Repayments under lines of credit (130,981) -- -- -- (130,981) ------------ ----------- ----------- ---------- ------------- Net cash provided by (used in) financing activities 94,576 (1,991) 286 -- 92,871 ------------ ----------- ----------- ---------- ------------- Effect of exchange rate on cash and cash equivalents (2,789) 2,703 (1,373) -- (1,459) Net cash used in discontinued operations -- (3,453) (10,883) -- (14,336) ------------ ----------- ----------- ---------- ------------- NET INCREASE IN CASH AND CASH EQUIVALENTS 37,874 5,952 1,999 -- 45,825 ASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 753 (416) 1,327 -- 1,664 ------------ ----------- ----------- ---------- ------------- CASH AND CASH EQUIVALENTS, END OF PERIOD $ 38,627 $ 5,536 $ 3,326 $ -- $ 47,489 ============ =========== =========== ========== =============
223 ARMOR HOLDINGS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARMOR HOLDINGS, INC. AND SUBSIDIARIES CONSOLIDATING STATEMENTS OF CASH FLOWS
YEAR ENDED DECEMBER 31, 2000 ----------------------------------------------------------------------------- GUARANTOR NONGUARANTOR CONSOLIDATED PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS TOTAL ------------ ------------ ------------ ------------ ------------ (IN THOUSANDS) CASH FLOWS FROM OPERATING ACTIVITIES: Income from continuing operations: $ 17,048 $ 15,971 $ 1,395 $ (23,567) $ 10,847 Adjustments to reconcile income from continuing operations to cash used in operating activities: Depreciation and amortization 211 3,055 196 -- 3,462 Deferred income taxes 64 699 6 769 Loss on disposal of fixed assets -- 110 -- -- 110 Changes in operating assets and liabilities, net of acquisitions: Increase in accounts receivable -- (2,361) (1,239) -- (3,600) Decrease (increase) in intercompany receivables & payables 7,696 (5,227) (4,810) 2,341 -- Increase in inventory -- (4,208) (371) -- (4,579) (Increase) decrease in prepaid expenses and other assets (12,607) 6,271 (60) -- (6,396) Increase (decrease) in accounts payable, accrued expenses and other current liabilities 1,570 (3,032) 1,843 -- 381 Increase (decrease) in income taxes payable 335 (3,107) (156) -- (2,928) ----------- ------------ -------------- ------------ ------------ Net cash provided by (used in) operating activities 14,317 8,171 (3,196) (21,226) (1,934) ----------- ------------ -------------- ------------ ------------ CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment (570) (3,349) (144) -- (4,063) Purchase of patents and trademarks -- (83) -- -- (83) Purchase of investments (1,682) -- -- -- (1,682) Proceeds from sale of equity investment 857 -- -- -- 857 Investment in subsidiaries (40,628) 19,350 52 21,226 -- Purchase of businesses, net of cash acquired -- (14,220) -- -- (14,220) ----------- ------------ -------------- ------------ ------------ Net cash (used in) provided by investing activities: (42,023) 1,698 (92) 21,226 (19,191) ----------- ------------ -------------- ------------ ------------ CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from exercise of stock options 1,473 -- -- -- 1,473 Repayment of debt assumed in acquisitions -- (1,132) -- -- (1,132) Cash paid for offering costs -- (256) -- -- (256) Repurchase of treasury stock (12,606) -- -- -- (12,606) Repayments of long-term debt -- (1,115) -- -- (1,115) Borrowings under lines of credit 68,872 6,775 -- -- 75,647 Repayments under lines of credit (35,891) (7,543) -- -- (43,434) ----------- ------------ -------------- ------------ ------------ Net cash provided by (used in) financing activities 21,848 (3,271) -- -- 18,577 ----------- ------------ -------------- ------------ ------------ Effect of exchange rate on cash and cash equivalents (1,483) 1,283 (133) -- (333) Net cash (used in) provided by discontinued operations -- (6,965) 4,211 -- (2,754) ----------- ------------ -------------- ------------ ------------ NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (7,341) 916 790 -- (5,635) CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 8,094 (1,332) 537 -- 7,299 ----------- ------------ -------------- ------------ ------------ CASH AND CASH EQUIVALENTS, END OF PERIOD $ 753 $ (416) $ 1,327 $ -- $ 1,664 =========== ============ ============== ============ ============
224 21. SUBSEQUENT EVENTS On July 26, 2003, we awarded Warren B. Kanders, our Chairman and Chief Executive Officer, a stock bonus award of 200,000 shares of our common stock in accordance with his amended employment agreement. On November 4, 2003, we awarded Robert R. Schiller, our Chief Operating Officer and Chief Financial Officer, a stock bonus award of 150,000 shares of our common stock in accordance with his amended employment agreement. On November 11, 2003, our stock price closed above $20 for the fifth consecutive trading day, which resulted in the complete vesting of the stock bonus awards and a pre-tax charge to earnings of $7.3 million, which will be included in fourth quarter results. The payment of the stock bonus awards to Messrs. Kanders and Schiller will be deferred for a period of five years after November 11, 2003, subject to acceleration under certain circumstances as set forth in their respective employment agreements, as amended. On November 26, 2003, we sold our Services Division, which had been classified as a discontinued operation, to management and a group of private investors led by Granville Baird Capital Partners. We realized approximately $31.4 million in cash at the closing of the sale, and expect to receive an additional $2.3 million in cash during the 12-month period following the closing. The sales amount approximates our carrying value after related tax benefits of $10.0 million. On December 9, 2003, we completed our $110.5 million acquisition of Simula, Inc., an Arizona corporation, and acquired all of the outstanding common stock of Simula and retired a majority of Simula's outstanding indebtedness. Of this amount, approximately $31 million principal amount of 8% debentures will remain outstanding for approximately 30 days at which time our plans are to repay these debentures, plus accrued interest, in their entirety. As of the date of this prospectus, Simula's outstanding 8% debentures have been paid in full. After payment of 100% of the outstanding indebtedness and transaction expenses, the merger consideration payable to Simula shareholders at closing pursuant to the merger agreement was approximately $43.5 million or approximately $3.21 per share. The funds used in the acquisition were derived from proceeds of our recent private placement of $150 million aggregate principal amount of 8 1/4% Senior Subordinated Notes due 2013. 225 WHERE YOU CAN FIND MORE INFORMATION We are subject to the informational requirements of the Exchange Act, and in accordance therewith we are required to file periodic reports, proxy statements and other information with the Commission. Such reports, proxy statements and other information filed by us can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, as well as the Regional Offices of the Commission at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, at the prescribed rates. The Commission also maintains a site on the World Wide Web that contains reports, proxy and information statements and other information regarding registrants that file electronically. The address of such site is http://www.sec.gov. The telephone number of the Commission is 800-SEC-0330. In addition, similar information can be inspected at the New York Stock Exchange, 20 Broad Street, New York, New York 10005. With respect to the new notes, this prospectus omits certain information that is contained in the registration statement on file with the Commission, of which this prospectus is a part. For further information with respect to us and our new notes, reference is made to the registration statement, including the exhibits incorporated therein by reference or filed therewith. Statements herein contained concerning the provisions of any document are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit or incorporated by reference into the registration statement. The registration statement and the exhibits may be inspected without charge at the offices of the Commission or copies thereof obtained at prescribed rates from the public reference section of the Commission at the addresses set forth above. You should rely on the information contained in this prospectus and in the registration statement as well as other information you deem relevant. We have not authorized anyone to provide you with information different from that contained in this prospectus. This prospectus is an offer to sell, or a solicitation of offers to buy, securities only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale or exchange of securities, however, we have a duty to update that information while this prospectus is in use by you where, among other things, any facts or circumstances arise which, individually or in the aggregate, represent a fundamental change in the information contained in this prospectus or any material information with respect to the plan of distribution was not previously disclosed in the prospectus or there is any material change to such information in the prospectus. This prospectus does not offer to sell or solicit any offer to buy any securities other than the new notes to which it relates, nor does it offer to sell any of these notes in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. EXPERTS The consolidated financial statements of Armor Holdings and subsidiaries appearing in its Annual Report (Form 10-K and Form 10-K/A) for the year ended December 31, 2002, have been audited by PricewaterhouseCoopers LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are 226 incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. The financial statements incorporated in this prospectus by reference from Simula, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2002, have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. LEGAL MATTERS The validity of the new notes to be issued pursuant to the exchange offer will be passed upon for us by Kane Kessler, P.C., New York, New York. 227 ARMOR HOLDINGS, INC. OFFER TO EXCHANGE $150,000,000 PRINCIPAL AMOUNT OF OUR 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY AND ALL OF OUR OUTSTANDING 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 UNCONDITIONALLY GUARANTEED BY THE SUBSIDIARY GUARANTORS LISTED ON PAGE 5 OF THIS PROSPECTUS ------------------------ PROSPECTUS ------------------------ ___________ __, 2004 UNTIL _____________, 2004, ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS. ================================================================================ 228 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") makes provision for the indemnification of officers and directors of corporations in terms sufficiently broad to indemnify its officers and directors under certain circumstances from liabilities (including reimbursement of expenses incurred) arising under the Securities Act. As permitted by the DGCL, Armor Holdings' Charter provides that, to the fullest extent permitted by the DGCL, no director shall be liable to Armor Holdings or to its stockholders for monetary damages for breach of his fiduciary duty as a director. Delaware law does not permit the elimination of liability (i) for any breach of the director's duty of loyalty to Armor Holdings or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in respect of certain unlawful dividend payments or stock redemptions or repurchases or (iv) for any transaction from which the director derives an improper personal benefit. The effect of this provision in the Charter is to eliminate the rights of Armor Holdings and its stockholders (through stockholders' derivative suits on behalf of Armor Holdings) to recover monetary damages against a director for breach of fiduciary duty as a director thereof (including breaches resulting from negligent or grossly negligent behavior) except in the situations described in clauses (i)-(iv), inclusive, above. These provisions will not alter the liability of directors under federal securities laws. Armor Holdings' Charter provides that it may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of Armor Holdings) by reason of the fact that he is or was a director, officer, employee or agent of Armor Holdings or is or was serving at the request of Armor Holdings as a director, officer, employee or agent of another corporation or enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of Armor Holdings, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. Armor Holdings' Charter also provides that it may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of Armor Holdings to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted under similar standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to Armor Holdings unless and only to the extent that the Court of Chancery of the State of II-1 Delaware or the court in which such action or suit was brought shall determine upon application that despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Armor Holdings' Charter also provides that to the extent a director or officer of Armor Holdings has been successful in the defense of any action, suit or proceeding referred to in the previous paragraphs or in the defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; that indemnification provided for in the Charter shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that Armor Holdings may purchase and maintain insurance on behalf of a director or officer of Armor Holdings against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not Armor Holdings would have the power to indemnify him against such liabilities under the provisions of Section 145 of the DGCL. ITEM 21. EXHIBITS Exhibit Description - ------- ----------- 1.1 Purchase Agreement, dated August 6, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Capital Markets, LLC (filed as Exhibit 10.1 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 3.1 Certificate of Incorporation of Armor Holdings (filed as Exhibit 3.1 to Armor Holdings' Current Report on Form 8-K, filed with the Commission on September 3, 1996 and incorporated herein by reference). 3.2 Certificate of Merger of American Body Armor & Equipment, Inc., a Florida corporation, and Armor Holdings (filed as Exhibit 3.2 to Armor Holdings' Current Report on Form 8-K, filed with the Commission on September 3, 1996 and incorporated herein by reference). 3.3 Bylaws of Armor Holdings (filed as Exhibit 3.3 to Armor Holdings' Current Report on Form 8-K, filed with the Commission on September 3, 1996 and incorporated herein by reference). II-2 Exhibit Description - ------- ----------- 3.4 Amendment to Bylaws of Armor Holdings (filed as Exhibit 3.3.2 to Armor Holdings' Annual Report on Form 10-K for the fiscal year ended December 31, 1998, filed with the Commission on March 25, 1999 and incorporated herein by reference). 3.5 Certificate of Incorporation of 911EP, Inc. and amendments thereto (f/k/a EP Acquisition Corp.). (1) 3.6 Bylaws of 911EP, Inc. (f/k/a EP Acquisition Corp.). (1) 3.7 Certificate of Incorporation of AHI Bulletproof Acquisition Corp. (1) 3.8 Bylaws of AHI Bulletproof Acquisition Corp. (1) 3.9 Certificate of Incorporation of AHI Properties I, Inc. (1) 3.10 Bylaws of AHI Properties I, Inc. (1) 3.11 Certificate of Incorporation and amendments thereto of AI Capital Corp. (f/k/a Airline Interiors, Inc.). (1) 3.12 Bylaws of AI Capital Corp. (f/k/a Airline Interiors, Inc.). (1) 3.13 Certificate of Incorporation of Armor Brands, Inc. (1) 3.14 Bylaws of Armor Brands, Inc. (1) 3.15 Certificate of Formation and amendments thereto of ArmorGroup Services, LLC. (f/k/a Armor Group Security Services, LLC). (1) 3.16 Operating Agreement of ArmorGroup Services, LLC. (f/k/a Armor Group Security Services, LLC). (1) 3.17 Certificate of Incorporation and amendments thereto of Armor Holdings Forensics, Inc. (f/k/a LPC Acquisition Corp.). (1) 3.18 Bylaws of Armor Holdings Forensics, Inc. (f/k/a LPC Acquisition Corp.). (1) 3.19 Certificate of Formation of Armor Holdings GP, LLC. (1) 3.20 Amended and Restated Operating Agreement of Armor Holdings GP, LLC. (1) 3.21 Certificate of Formation of Armor Holdings LP, LLC. (1) II-3 Exhibit Description - ------- ----------- 3.22 Amended and Restated Operating Agreement of Armor Holdings LP, LLC. (1) 3.23 Certificate of Formation of Armor Holdings Mobile Security, L.L.C. (1) 3.24 Operating Agreement of Armor Holdings Mobile Security, L.L.C. (1) 3.25 Certificate of Formation of Armor Holdings Payroll Services, LLC. (1) 3.26 Operating Agreement of Armor Holdings Payroll Services, LLC. (1) 3.27 Certificate of Incorporation and amendments thereto of Armor Holdings Products, Inc. (f/k/a American Body Armor and Equipment, Inc.). (1) 3.28 Bylaws of Armor Holdings Products, Inc. (f/k/a American Body Armor and Equipment, Inc.). (1) 3.29 Certificate of Incorporation of Armor Holdings Properties, Inc. (1) 3.30 Bylaws of Armor Holdings Properties, Inc. (1) 3.31 Certificate of Incorporation and amendments thereto of Armor Holdings Safety Products Company (f/k/a/ FPG Acquisition Corp.). (1) 3.32 Bylaws of Armor Holdings Safety Products Company (f/k/a/ FPG Acquisition Corp.). (1) 3.33 Certificate of Incorporation and amendments thereto of ASD Capital Corp. (f/k/a Simula Automotive Safety Devices, Inc.). (1) 3.34 Bylaws of ASD Capital Corp. (f/k/a Simula Automotive Safety Devices, Inc.). (1) 3.35 Certificate of Incorporation and amendments thereto of B-Square, Inc. (1) 3.36 Bylaws of B-Square, Inc. (1) 3.37 Certificate of Incorporation and amendments thereto of Break Free Armor Corp. (f/k/a BF Acquisition Corp.). (1) 3.38 Bylaws of Break Free Armor Corp. (1) 3.39 Certificate of Incorporation and amendments thereto of Break Free, Inc. (f/k/a BF Acquisition Co.). (1) II-4 Exhibit Description - ------- ----------- 3.40 Bylaws of Break Free, Inc. (f/k/a BF Acquisition Co.). (1) 3.41 Articles of Agreement of Casco International, Inc. (1) 3.42 Bylaws of Casco International, Inc. (1) 3.43 Articles of Incorporation and amendments thereto of CCEC Capital Corp. (f/k/a CCEC Acquisitions Corp.). (1) 3.44 Bylaws of CCEC Capital Corp. (f/k/a CCEC Acquisitions Corp.). (1) 3.45 Certificate of Incorporation of CDR International, Inc. (1) 3.46 Bylaws of CDR International, Inc. (1) 3.47 Certificate of Incorporation of Defense Technology Corporation of America. (1) 3.48 Bylaws of Defense Technology Corporation of America. (1) 3.49 Articles of Incorporation and amendments thereto of Hatch Imports, Inc. (1) 3.50 Bylaws of Hatch Imports, Inc. (1) 3.51 Certificate of Incorporation and amendments thereto of Identicator, Inc. (f/k/a Identicator Acquisition Corp.). (1) 3.52 Bylaws of Identicator, Inc. (f/k/a Identicator Acquisition Corp.). (1) 3.53 Certificate of Incorporation of International Center for Safety Education, Inc. (1) 3.54 Bylaws of International Center for Safety Education, Inc. (1) 3.55 Certificate of Incorporation of Monadnock Lifetime Products, Inc. (Delaware). (1) 3.56 Bylaws of Monadnock Lifetime Products, Inc. (Delaware). (1) II-5 Exhibit Description - ------- ----------- 3.57 Articles of Incorporation and amendments thereto of Monadnock Police Training Council, Inc. (f/k/a Monadnock PR-24 Training Council, Inc.). (1) 3.58 Bylaws of Monadnock Police Training Council, Inc. (f/k/a Monadnock PR-24 Training Council, Inc.). (1) 3.59 Certificate of Limited Partnership and amendments thereto of NAP Properties, Ltd. (1) 3.60 Limited Partnership Agreement and amendments thereto of NAP Properties, Ltd. (1) 3.61 Articles of Organization of NAP Property Managers, LLC. (1) 3.62 Operating Agreement and amendments thereto of NAP Property Managers, LLC. (1) 3.63 Certificate of Incorporation of Monadnock Lifetime Products, Inc. (f/k/a MLP Industries, Inc.) (New Hampshire). (1) 3.64 Bylaws of Monadnock Lifetime Products, Inc. (f/k/a MLP Industries, Inc.) (New Hampshire). (1) 3.65 Certificate of Incorporation and Certificate of Merger of Network Audit Systems, Inc. (f/k/a NAS Merger Subsidiary, Inc.). (1) 3.66 Bylaws of Network Audit Systems, Inc. (1) 3.67 Certificate of Incorporation and amendments thereto of New Technologies Armor, Inc. (f/k/a NTI Merger Subsidiary, Inc.). (1) 3.68 Bylaws of New Technologies Armor, Inc. (f/k/a NTI Merger Subsidiary, Inc.). (1) 3.69 Certificate of Formation, Certificate of Incorporation and amendments thereto and Certificate of Conversion of O'Gara-Hess and Eisenhardt Armor Company, L.L.C. (f/k/a O'Gara Companies, a Delaware Corporation). (1) 3.70 Operating Agreement of O'Gara-Hess & Eisenhardt Armor Company, L.L.C. (f/k/a O'Gara Companies, a Delaware Corporation). (1) 3.71 Certificate of Incorporation of Pro-Tech Armored Products of Massachusetts, Inc. (1) 3.72 Bylaws of Pro-Tech Armored Products of Massachusetts, Inc. (1) 3.73 Certificate of Incorporation and amendments thereto of Ramtech Development Corp. (f/k/a Invencom Acquisition Corp.). (1) II-6 Exhibit Description - ------- ----------- 3.74 Bylaws of Ramtech Development Corp. (f/k/a Invencom Acquisition Corp.). (1) 3.75 Amended and Restated Articles of Incorporation of Safari Land Ltd., Inc. (1) 3.76 Bylaws of Safari Land Ltd., Inc. and amendments thereto. (1) 3.77 Articles of Incorporation of Safariland Government Sales, Inc. (1) 3.78 Bylaws of Safariland Government Sales, Inc. (1) 3.79 Articles of Incorporation and amendments thereto of SAI Capital Corp. (f/k/a Artcraft Industries Acquisition Corp.). (1) 3.80 Bylaws of SAI Capital Corp. (f/k/a Artcraft Industries Acquisition Corp.). (1) 3.81 Articles of Incorporation and Amendments thereto of Simula Aerospace & Defense Group, Inc. (f/k/a Simula Government Products, Inc.).(1) 3.82 Bylaws of Simula Aerospace & Defense Group, Inc. (f/k/a Simula Government Products, Inc.).(1) 3.83 Amended and Restated Articles of Incorporation of Simula, Inc. (1) 3.84 Bylaws of Simula, Inc. (1) 3.85 Certificate of Incorporation of Simula Polymer Systems, Inc. (1) 3.86 Bylaws of Simula Polymer Systems, Inc. (1) 3.87 Articles of Incorporation of Simula Technologies, Inc. (1) 3.88 Bylaws of Simula Technologies, Inc. (1) 3.89 Articles of Incorporation and amendments thereto of Simula Transportation Equipment Corporation (f/k/a Intaero, Inc.). (1) 3.90 Bylaws of Simula Transportation Equipment Corporation (f/k/a Intaero, Inc.). (1) 3.91 Certificate of Incorporation of Speedfeed Acquisition Corp. (1) II-7 Exhibit Description - ------- ----------- 3.92 Bylaws of Speedfeed Acquisition Corp. (1) 3.93 Amended and Restated Articles of Incorporation of The O'Gara Company. (1) 3.94 Bylaws of The O'Gara Company. (1) 4.1 Indenture, dated as of August 12, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Bank, National Association, as trustee, and form of Old Note attached as Exhibit A thereto (filed as Exhibit 10.2 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 4.2 First Supplemental Indenture, dated as of September 30, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories to the Indenture, the subsidiaries listed in Schedule I to the First Supplemental Indenture and Wachovia Bank, National Association, as trustee. (1) 4.3 Second Supplemental Indenture, dated as of December 9, 2003, among Armor Holdings, Inc., the subsidiary guarantors listed as signatories thereto and Wachovia Bank, National Association, as trustee. (1) 4.4 Third Supplemental Indenture, dated as of December 24, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Bank, National Association, as trustee. (1) 4.5 Registration Rights Agreement, dated August 12, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Capital Markets, LLC (filed as Exhibit 10.3 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 4.6 Form of the new 8 1/4% Senior Subordinated Notes Due 2013. (1) 5.1 Opinion of Kane Kessler, P.C. (2) 10.1 Credit Agreement, dated as of August 12, 2003, among Armor Holdings, each lender from time to time party thereto, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, Wachovia Bank, National Association, as Syndication Agent, and Key Bank National Association, as Documentation Agent (filed as Exhibit 10.4 to Armor Holdings' Quarterly Report on form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.2 Subsidiary Guaranty Agreement, dated as of August 12, 2003, by certain Subsidiaries of Armor Holdings as identified on the signature pages thereto and any Additional II-8 Exhibit Description - ------- ----------- Guarantor who may become party to this Guaranty, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.5 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.3 Collateral Agreement, dated as of August 12, 2003, by and among Armor Holdings and certain of its Subsidiaries as identified on the signature pages thereto and any Additional Grantor who may become party to this Agreement, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.6 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.4 Trademark Security Agreement, dated as of August 12, 2003, by the entities listed on the signature pages thereto, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.7 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.5 Patent Security Agreement, dated as of August 12, 2003, by the entities listed on the signature pages attached thereto, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.8 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (1) 21.1 Subsidiaries of Armor Holdings. (1) 23.1 Consent of PricewaterhouseCoopers LLP. (1) 23.2 Consent of Deloitte & Touche LLP. (1) 23.3 Consent of Kane Kessler, P.C. (See Exhibit 5.1 to this Registration Statement). (2) 24.1 Powers of Attorney (See signature pages of this Registration Statement). (1) 25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee on Form T-1, relating to Wachovia Bank, National Association. (1) 99.1 Form of Letter to The Depository Trust Company Participants. (1) 99.2 Form of Letter of Transmittal. (1) 99.3 Form of Notice of Guaranteed Delivery. (1) 99.4 Form of Instruction to Book-Entry Transfer Participant. (1) II-9 Exhibit Description - ------- ----------- 99.5 Form of Letter to Clients. (1) 99.6 Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (1) 99.7 Form of Exchange Agent Agreement. (1) - --------------------------- (1) Filed herewith. (2) To be filed by Amendment. II-10 ITEM 22. UNDERTAKINGS A. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report II-11 pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. D. The undersigned registrant hereby undertakes that to respond to requests for information that is incorporated by reference into the prospectus pursuant to items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. E. The undersigned registrant hereby undertakes that to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired therein, that was not the subject of and included in the registration statement when it became effective. II-12 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ARMOR HOLDINGS, INC. By: /s/ Warren B. Kanders ------------------------------------ Warren B. Kanders, Chief Executive Officer and Chairman of the Board of Directors POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Warren B. Kanders Chairman of the Board of January 5, 2004 - ------------------------ Directors, Chief Executive Warren B. Kanders Officer and Director (principal executive officer) /s/ Robert S. Schiller Chief Financial Officer and January 5, 2004 - ------------------------ Chief Operating Officer Robert R. Schiller (principal financial officer) /s/ Nicholas Sokolow Director January 5, 2004 - ----------------------- Nicholas Sokolow /s/ Burtt R. Ehrlich Director January 2, 2004 - ----------------------- Burtt R. Ehrlich /s/ Thomas W. Strauss Director January 5, 2004 - ----------------------- Thomas W. Strauss /s/ Alair A. Townsend Director January 5, 2004 - ----------------------- Alair A. Townsend /s/ Deborah A. Zoullas Director January 5, 2004 - ----------------------- Deborah A. Zoullas SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. 911EP, INC. ARMOR BRANDS, INC. ARMOR HOLDINGS FORENSICS, INC. ARMOR HOLDINGS PRODUCTS, INC. ARMOR SAFETY PRODUCTS COMPANY BREAK-FREE ARMOR CORP. BREAK-FREE INC. CASCO INTERNATIONAL, INC. DEFENSE TECHNOLOGY CORPORATION OF AMERICA IDENTICATOR, INC. MONADNOCK LIFETIME PRODUCTS, INC. MONADNOCK LIFETIME PRODUCTS, INC. MONADNOCK POLICE TRAINING COUNCIL, INC. PRO-TECH ARMORED PRODUCTS OF MASSACHUSETTS, INC. RAMTECH DEVELOPMENT CORP. SAFARILAND GOVERNMENT SALES, INC. SAFARI LAND LTD, INC. SPEEDFEED ACQUISITION CORP. By: /s/ Stephen E. Croskrey ----------------------------- Stephen E. Croskrey President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Stephen E. Croskrey Director and President January 5, 2004 - ----------------------- (principal executive officer) Stephen E. Croskrey /s/ Mark Williams Treasurer January 5, 2004 - ----------------------- (principal financial officer) Mark Williams SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. AHI PROPERTIES I, INC. By: /s/ Robert R. Schiller ------------------------ Robert R. Schiller Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Glenn J. Heiar Director and Treasurer January 5, 2004 - ---------------------- (principal financial officer) Glenn J. Heiar /s/ Todd S. Smith Director January 5, 2004 - ---------------------- Todd S. Smith /s/ Robert R. Schiller Chief Executive Officer January 5, 2004 - ---------------------- (principal executive officer) Robert R. Schiller SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ARMORGROUP SERVICES, LLC By: /s/ Robert R. Schiller ------------------------------------- Robert R. Schiller Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Manager, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert R. Schiller (principal executive officer) /s/ Todd S. Smith Manager and Treasurer January 5, 2004 - ----------------------- (principal financial officer) Todd S. Smith SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ARMOR HOLDINGS GP, LLC By: /s/ Robert R. Schiller ----------------------------------- Robert R. Schiller Vice President and Treasurer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Todd S. Smith Manager January 5, 2004 - ---------------------- Todd S. Smith /s/ Glenn J. Heiar Manager January 5, 2004 - ---------------------- Glenn J. Heiar /s/ Robert R. Schiller Vice President and Treasurer January 5, 2004 - ----------------------- (principal executive and Robert R. Schiller financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ARMOR HOLDINGS LP, LLC By: /s/ Todd S. Smith ------------------------------------- Todd S. Smith Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Todd S. Smith Manager, Chief Executive January 5, 2004 - ---------------------- Officer and President Todd S. Smith (principal executive officer) /s/ Robert R. Schiller Manager and Treasurer January 5, 2004 - ---------------------- (principal financial officer) Robert R. Schiller /s/ Glenn J. Heiar Manager January 5, 2004 - ---------------------- Glenn J. Heiar SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ARMOR HOLDINGS MOBILE SECURITY, L.L.C. By: /s/ Robert R. Schiller -------------------------------- Robert R. Schiller President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Manager and President January 5, 2004 - ------------------------ (principal executive officer) Robert R. Schiller /s/ Glenn J. Heiar Manager and Treasurer January 5, 2004 - ------------------------ (principal financial officer) Glenn J. Heiar SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ARMOR HOLDINGS PAYROLL SERVICES, LLC By: /s/ Glenn J. Heiar -------------------------------- Glenn J. Heiar Manager POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Edward Bayhi Manager January 5, 2004 - ---------------------- Edward Bayhi /s/ Glenn J. Heiar Manager January 5, 2004 - ---------------------- Glenn J. Heiar SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ARMOR HOLDINGS PROPERTIES, INC. By: /s/ Robert R. Schiller ------------------------------------- Robert R. Schiller Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Director, Chief Executive January 5, 2004 - ---------------------- Officer and President Robert R. Schiller (principal executive officer) /s/ Glenn J. Heiar Director and Treasurer January 5, 2004 - ---------------------- (principal financial officer) Glenn J. Heiar SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. B-SQUARE, INC. By: /s/ Stephen E. Croskrey ------------------------------------- Stephen E. Croskrey President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Director January 5, 2004 - ------------------------ Robert R. Schiller /s/ Stephen E. Croskrey Director and President January 5, 2004 - ------------------------ (principal executive officer) Stephen E. Croskrey /s/ Charles Ricci Treasurer January 5, 2004 - ------------------------ (principal financial officer) Charles Ricci SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. CDR INTERNATIONAL, INC. By: /s/ Glenn J. Heiar ------------------------------------- Glenn J. Heiar President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Director January 5, 2004 - ------------------------ Robert R. Schiller /s/ Glenn J. Heiar President January 5, 2004 - ------------------------- (principal executive officer) Glenn J. Heiar /s/ Glenn J. Heiar Treasurer January 5, 2004 - ------------------------- (principal financial officer) Glenn J. Heiar SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. NAP PROPERTIES, LTD. By: NAP Property Managers, LLC, as General Partner By: Armor Holdings Properties, Inc., as Managing Member By: /s/ Robert R. Schiller ------------------------------------- Robert R. Schiller Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Chief Executive Officer and January 5, 2004 - ---------------------- President of Armor Holdings Robert R. Schiller Properties, Inc., Managing Member of General Partner of NAP Properties, Ltd. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. NAP PROPERTY MANAGERS, LLC By: Armor Holdings Properties, Inc., as Managing Member By: /s/ Robert R. Schiller ------------------------------------- Robert R. Schiller Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Chief Executive Officer and January 5, 2004 - ----------------------- President of Armor Holdings Robert R. Schiller Properties, Inc., Managing Member of NAP Property Managers, LLC SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. NETWORK AUDIT SYSTEMS, INC. By: /s/ Todd S. Smith ------------------------------------- Todd S. Smith Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Director and Treasurer January 5, 2004 - ----------------------- (principal financial officer) Robert R. Schiller /s/ Todd S. Smith Director and Chief Executive January 5, 2004 - ----------------------- Officer Todd S. Smith (principal executive officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. NEW TECHNOLOGIES ARMOR, INC. By: /s/ Michael Anderson -------------------------- Michael Anderson President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director January 5, 2004 - ----------------------- Glenn J. Heiar /s/ Michael Anderson Director and President January 5, 2004 - ------------------------ (principal executive officer) Michael Anderson /s/ John Dethman Director and Vice President - - ------------------------ Finance January 5, 2004 John Dethman (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. By: /s/ Robert R. Schiller ------------------------------------- Robert R. Schiller Sole Manager POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert R. Schiller Sole Manager January 5, 2004 - ----------------------- Robert R. Schiller SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. THE O'GARA COMPANY By: /s/ Gary Allen ------------------------------------- Gary Allen Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Gary Allen Director, Chief Executive January 5, 2004 - ---------------------- Officer and President Gary Allen (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ---------------------- Robert R. Schiller /s/ Glenn J. Heiar Treasurer January 5, 2004 - ----------------------- (principal financial officer) Glenn J. Heiar SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. AI CAPITAL CORP. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ------------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ------------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - -------------------------- Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. ASD CAPITAL CORP. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ---------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ---------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ----------------------- Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. CCEC CAPITAL CORP. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ------------------------ Treasurer and Secretary (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ----------------------- Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. SAI CAPITAL CORP. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ----------------------- Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. SIMULA AEROSPACE & DEFENSE GROUP, INC. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ------------------------ Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ------------------------ Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ------------------------ Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. SIMULA, INC. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ------------------------ Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. SIMULA POLYMERS SYSTEMS, INC. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ------------------------ Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. SIMULA TECHNOLOGIES, INC. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ----------------------- Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. SIMULA TRANSPORTATION EQUIPMENT CORPORATION By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ----------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ----------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ----------------------- Treasurer and Secretary Glenn J. Heiar (principal financial officer) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. HATCH IMPORTS, INC. By: /s/ Stephen E. Croskrey ------------------------------------- Stephen E. Croskrey President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Stephen E. Croskrey Director and President January 5, 2004 - ------------------------ (principal executive officer) Stephen E. Croskrey /s/ Glenn J. Heiar Director and Vice President January 5, 2004 - ------------------------ Glenn J. Heiar /s/ Mark Williams Vice President and Treasurer January 5, 2004 - ------------------------ (principal financial officer) Mark Williams SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida on January 5, 2004. AHI BULLETPROOF ACQUISITION CORP. By: /s/ Robert Mecredy ------------------------------------- Robert Mecredy Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Warren B. Kanders and Robert R. Schiller, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement or any registration statement for this offering that is to be effective upon the filing pursuant to rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been duly signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- /s/ Robert Mecredy Director, Chief Executive January 5, 2004 - ------------------------- Officer and President Robert Mecredy (principal executive officer) /s/ Robert R. Schiller Director January 5, 2004 - ------------------------- Robert R. Schiller /s/ Glenn J. Heiar Director, Chief Financial Officer, January 5, 2004 - ------------------------- Treasurer and Secretary Glenn J. Heiar (principal financial officer) EXHIBIT INDEX ------------- Exhibit Description - ------- ----------- 1.1 Purchase Agreement, dated August 6, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Capital Markets, LLC (filed as Exhibit 10.1 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 3.1 Certificate of Incorporation of Armor Holdings (filed as Exhibit 3.1 to Armor Holdings' Current Report on Form 8-K, filed with the Commission on September 3, 1996 and incorporated herein by reference). 3.2 Certificate of Merger of American Body Armor & Equipment, Inc., a Florida corporation, and Armor Holdings (filed as Exhibit 3.2 to Armor Holdings' Current Report on Form 8-K, filed with the Commission on September 3, 1996 and incorporated herein by reference). 3.3 Bylaws of Armor Holdings (filed as Exhibit 3.3 to Armor Holdings' Current Report on Form 8-K, filed with the Commission on September 3, 1996 and incorporated herein by reference). 3.4 Amendment to Bylaws of Armor Holdings (filed as Exhibit 3.3.2 to Armor Holdings' Annual Report on Form 10-K for the fiscal year ended December 31, 1998, filed with the Commission on March 25, 1999 and incorporated herein by reference). 3.5 Certificate of Incorporation of 911EP, Inc. and amendments thereto (f/k/a EP Acquisition Corp.). (1) 3.6 Bylaws of 911EP, Inc. (f/k/a EP Acquisition Corp.). (1) 3.7 Certificate of Incorporation of AHI Bulletproof Acquisition Corp. (1) 3.8 Bylaws of AHI Bulletproof Acquisition Corp. (1) 3.9 Certificate of Incorporation of AHI Properties I, Inc. (1) 3.10 Bylaws of AHI Properties I, Inc. (1) 3.11 Certificate of Incorporation and amendments thereto of AI Capital Corp. (f/k/a Airline Interiors, Inc.). (1) 3.12 Bylaws of AI Capital Corp. (f/k/a Airline Interiors, Inc.). (1) 3.13 Certificate of Incorporation of Armor Brands, Inc. (1) 3.14 Bylaws of Armor Brands, Inc. (1) 3.15 Certificate of Formation and amendments thereto of ArmorGroup Services, LLC. (f/k/a Armor Group Security Services, LLC). (1) 3.16 Operating Agreement of ArmorGroup Services, LLC. (f/k/a Armor Group Security Services, LLC). (1) 3.17 Certificate of Incorporation and amendments thereto of Armor Holdings Forensics, Inc. (f/k/a LPC Acquisition Corp.). (1) 3.18 Bylaws of Armor Holdings Forensics, Inc. (f/k/a LPC Acquisition Corp.). (1) 3.19 Certificate of Formation of Armor Holdings GP, LLC. (1) 3.20 Amended and Restated Operating Agreement of Armor Holdings GP, LLC. (1) 3.21 Certificate of Formation of Armor Holdings LP, LLC. (1) 3.22 Amended and Restated Operating Agreement of Armor Holdings LP, LLC. (1) 3.23 Certificate of Formation of Armor Holdings Mobile Security, L.L.C. (1) 3.24 Operating Agreement of Armor Holdings Mobile Security, L.L.C. (1) 3.25 Certificate of Formation of Armor Holdings Payroll Services, LLC. (1) 3.26 Operating Agreement of Armor Holdings Payroll Services, LLC. (1) 3.27 Certificate of Incorporation and amendments thereto of Armor Holdings Products, Inc. (f/k/a American Body Armor and Equipment, Inc.). (1) 3.28 Bylaws of Armor Holdings Products, Inc. (f/k/a American Body Armor and Equipment, Inc.). (1) 3.29 Certificate of Incorporation of Armor Holdings Properties, Inc. (1) 3.30 Bylaws of Armor Holdings Properties, Inc. (1) 3.31 Certificate of Incorporation and amendments thereto of Armor Holdings Safety Products Company (f/k/a/ FPG Acquisition Corp.). (1) 3.32 Bylaws of Armor Holdings Safety Products Company (f/k/a/ FPG Acquisition Corp.). (1) Exhibit Description - ------- ----------- 3.33 Certificate of Incorporation and amendments thereto of ASD Capital Corp. (f/k/a Simula Automotive Safety Devices, Inc.). (1) 3.34 Bylaws of ASD Capital Corp. (f/k/a Simula Automotive Safety Devices, Inc.). (1) 3.35 Certificate of Incorporation and amendments thereto of B-Square, Inc. (1) 3.36 Bylaws of B-Square, Inc. (1) 3.37 Certificate of Incorporation and amendments thereto of Break Free Armor Corp. (f/k/a BF Acquisition Corp.). (1) 3.38 Bylaws of Break Free Armor Corp. (1) 3.39 Certificate of Incorporation and amendments thereto of Break Free, Inc. (f/k/a BF Acquisition Co.). (1) 3.40 Bylaws of Break Free, Inc. (f/k/a BF Acquisition Co.). (1) 3.41 Articles of Agreement of Casco International, Inc. (1) 3.42 Bylaws of Casco International, Inc. (1) 3.43 Articles of Incorporation and amendments thereto of CCEC Capital Corp. (f/k/a CCEC Acquisitions Corp.). (1) 3.44 Bylaws of CCEC Capital Corp. (f/k/a CCEC Acquisitions Corp.). (1) 3.45 Certificate of Incorporation of CDR International, Inc. (1) 3.46 Bylaws of CDR International, Inc. (1) 3.47 Certificate of Incorporation of Defense Technology Corporation of America. (1) 3.48 Bylaws of Defense Technology Corporation of America. (1) 3.49 Articles of Incorporation and amendments thereto of Hatch Imports, Inc. (1) 3.50 Bylaws of Hatch Imports, Inc. (1) 3.51 Certificate of Incorporation and amendments thereto of Identicator, Inc. (f/k/a Identicator Acquisition Corp.). (1) 3.52 Bylaws of Identicator, Inc. (f/k/a Identicator Acquisition Corp.). (1) 3.53 Certificate of Incorporation of International Center for Safety Education, Inc. (1) 3.54 Bylaws of International Center for Safety Education, Inc. (1) 3.55 Certificate of Incorporation of Monadnock Lifetime Products, Inc. (Delaware). (1) 3.56 Bylaws of Monadnock Lifetime Products, Inc. (Delaware). (1) 3.57 Articles of Incorporation and amendments thereto of Monadnock Police Training Council, Inc. (f/k/a Monadnock PR-24 Training Council, Inc.). (1) 3.58 Bylaws of Monadnock Police Training Council, Inc. (f/k/a Monadnock PR-24 Training Council, Inc.). (1) 3.59 Certificate of Limited Partnership and amendments thereto of NAP Properties, Ltd. (1) 3.60 Limited Partnership Agreement and amendments thereto of NAP Properties, Ltd. (1) 3.61 Articles of Organization of NAP Property Managers, LLC. (1) 3.62 Operating Agreement and amendments thereto of NAP Property Managers, LLC. (1) 3.63 Certificate of Incorporation of Monadnock Lifetime Products, Inc. (f/k/a MLP Industries, Inc.) (New Hampshire). (1) 3.64 Bylaws of Monadnock Lifetime Products, Inc. (f/k/a MLP Industries, Inc.) (New Hampshire). (1) 3.65 Certificate of Incorporation and Certificate of Merger of Network Audit Systems, Inc. (f/k/a NAS Merger Subsidiary, Inc.). (1) 3.66 Bylaws of Network Audit Systems, Inc. (1) 3.67 Certificate of Incorporation and amendments thereto of New Technologies Armor, Inc. (f/k/a NTI Merger Subsidiary, Inc.). (1) 3.68 Bylaws of New Technologies Armor, Inc. (f/k/a NTI Merger Subsidiary, Inc.). (1) Exhibit Description - ------- ----------- 3.69 Certificate of Formation, Certificate of Incorporation and amendments thereto and Certificate of Conversion of O'Gara-Hess and Eisenhardt Armor Company, L.L.C. (f/k/a O'Gara Companies, a Delaware Corporation). (1) 3.70 Operating Agreement of O'Gara-Hess & Eisenhardt Armor Company, L.L.C. (f/k/a O'Gara Companies, a Delaware Corporation). (1) 3.71 Certificate of Incorporation of Pro-Tech Armored Products of Massachusetts, Inc. (1) 3.72 Bylaws of Pro-Tech Armored Products of Massachusetts, Inc. (1) 3.73 Certificate of Incorporation and amendments thereto of Ramtech Development Corp. (f/k/a Invencom Acquisition Corp.). (1) 3.74 Bylaws of Ramtech Development Corp. (f/k/a Invencom Acquisition Corp.). (1) 3.75 Amended and Restated Articles of Incorporation of Safari Land Ltd., Inc. (1) 3.76 Bylaws of Safari Land Ltd., Inc. and amendments thereto. (1) 3.77 Articles of Incorporation of Safariland Government Sales, Inc. (1) 3.78 Bylaws of Safariland Government Sales, Inc. (1) 3.79 Articles of Incorporation and amendments thereto of SAI Capital Corp. (f/k/a Artcraft Industries Acquisition Corp.). (1) 3.80 Bylaws of SAI Capital Corp. (f/k/a Artcraft Industries Acquisition Corp.). (1) 3.81 Articles of Incorporation and Amendments thereto of Simula Aerospace & Defense Group, Inc. (f/k/a Simula Government Products, Inc.).(1) 3.82 Bylaws of Simula Aerospace & Defense Group, Inc. (f/k/a Simula Government Products, Inc.).(1) 3.83 Amended and Restated Articles of Incorporation of Simula, Inc. (1) 3.84 Bylaws of Simula, Inc. (1) 3.85 Certificate of Incorporation of Simula Polymer Systems, Inc. (1) 3.86 Bylaws of Simula Polymer Systems, Inc. (1) 3.87 Articles of Incorporation of Simula Technologies, Inc. (1) 3.88 Bylaws of Simula Technologies, Inc. (1) 3.89 Articles of Incorporation and amendments thereto of Simula Transportation Equipment Corporation (f/k/a Intaero, Inc.). (1) 3.90 Bylaws of Simula Transportation Equipment Corporation (f/k/a Intaero, Inc.). (1) 3.91 Certificate of Incorporation of Speedfeed Acquisition Corp. (1) 3.92 Bylaws of Speedfeed Acquisition Corp. (1) 3.93 Amended and Restated Articles of Incorporation of The O'Gara Company. (1) 3.94 Bylaws of The O'Gara Company. (1) 4.1 Indenture, dated as of August 12, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Bank, National Association, as trustee, and form of Old Note attached as Exhibit A thereto (filed as Exhibit 10.2 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 4.2 First Supplemental Indenture, dated as of September 30, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories to the Indenture, the subsidiaries listed in Schedule I to the First Supplemental Indenture and Wachovia Bank, National Association, as trustee. (1) 4.3 Second Supplemental Indenture, dated as of December 9, 2003, among Armor Holdings, Inc., the subsidiary guarantors listed as signatories thereto and Wachovia Bank, National Association, as trustee. (1) 4.4 Third Supplemental Indenture, dated as of December 24, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Bank, National Association, as trustee. (1) 4.5 Registration Rights Agreement, dated August 12, 2003, among Armor Holdings, the subsidiary guarantors listed as signatories thereto and Wachovia Capital Markets, LLC (filed as Exhibit 10.3 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 4.6 Form of the new 8 1/4% Senior Subordinated Notes Due 2013. (1) Exhibit Description - ------- ----------- 5.1 Opinion of Kane Kessler, P.C. (2) 10.1 Credit Agreement, dated as of August 12, 2003, among Armor Holdings, each lender from time to time party thereto, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, Wachovia Bank, National Association, as Syndication Agent, and Key Bank National Association, as Documentation Agent (filed as Exhibit 10.4 to Armor Holdings' Quarterly Report on form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.2 Subsidiary Guaranty Agreement, dated as of August 12, 2003, by certain Subsidiaries of Armor Holdings as identified on the signature pages thereto and any Additional Guarantor who may become party to this Guaranty, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.5 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.3 Collateral Agreement, dated as of August 12, 2003, by and among Armor Holdings and certain of its Subsidiaries as identified on the signature pages thereto and any Additional Grantor who may become party to this Agreement, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.6 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.4 Trademark Security Agreement, dated as of August 12, 2003, by the entities listed on the signature pages thereto, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.7 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 10.5 Patent Security Agreement, dated as of August 12, 2003, by the entities listed on the signature pages attached thereto, in favor of Bank of America, N.A., as Administrative Agent (filed as Exhibit 10.8 to Armor Holdings' Quarterly Report on Form 10-Q, filed with the Commission on August 18, 2003 and incorporated herein by reference). 12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (1) 21.1 Subsidiaries of Armor Holdings. (1) 23.1 Consent of PricewaterhouseCoopers LLP. (1) 23.2 Consent of Deloitte & Touche LLP. (1) 23.3 Consent of Kane Kessler, P.C. (See Exhibit 5.1 to this Registration Statement). (2) 24.1 Powers of Attorney (See signature pages of this Registration Statement). (1) 25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee on Form T-1, relating to Wachovia Bank, National Association. (1) 99.1 Form of Letter to The Depository Trust Company Participants. (1) 99.2 Form of Letter of Transmittal. (1) 99.3 Form of Notice of Guaranteed Delivery. (1) 99.4 Form of Instruction to Book-Entry Transfer Participant. (1) 99.5 Form of Letter to Clients. (1) 99.6 Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (1) 99.7 Form of Exchange Agent Agreement. (1) - --------------------------- (1) Filed herewith. (2) To be filed by Amendment. EX-3.5 3 file002.txt CERTIFICATE OF INCORPORATION OF 911 EP, INC. Ex-3.5 CERTIFICATE OF INCORPORATION OF EP ACQUISITION CORP. ---------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Title 8, Chapter 1 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is EP Acquisition Corp. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of 2 Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on October 1, 2002. /s/ Robert L. Lawrence ---------------------------------- Robert L. Lawrence Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF EP ACQUISITION CORP. ---------------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is EP Acquisition Corp. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is 911EP, Inc." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware. Dated: October 30 2002. EP ACQUISITION CORP. By: /s/ Robert R. Schiller --------------------------- Name: Robert R. Schiller Title: Vice President EX-3.6 4 file003.txt BYLAWS OF 911 EP, INC. Ex-3.6 BYLAWS OF EP ACQUISITION CORP. A DELAWARE CORPORATION ----------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the 2 number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least one and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall 8 have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, 10 each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. 11 SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. 12 ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.7 5 file004.txt CERTIFICATE OF INCORPORATION OF AHI BULLETPROOF Ex-3.7 CERTIFICATE OF INCORPORATION OF AHI BULLETPROOF ACQUISITION CORP. ---------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Title 8, Chapter 1 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is AHI Bulletproof Acquisition Corp. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Jeffrey S. Tullman, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of 2 Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on December 4, 2003 /s/ Jeffrey S. Tullman, Esq. ---------------------------------- Jeffrey S. Tullman, Esq. Incorporator 3 EX-3.8 6 file005.txt BYLAWS OF AHI BULLETPROOF ACQUISITION CORP. Ex-3.8 BYLAWS OF AHI BULLETPROOF ACQUISITION CORP. A DELAWARE CORPORATION ------------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the 2 number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least one and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall 8 have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, 10 each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. 11 SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. 12 ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.9 7 file006.txt CERTIFICATE OF INCORPORATION OF AHI PROPERTIES I Ex-3.9 CERTIFICATE OF INCORPORATION OF AHI PROPERTIES I, INC. ------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is AHI Properties I, Inc. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Jeffrey S. Tullman, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of 2 Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on May 14, 2002. /s/ Jeffrey S. Tullman ---------------------------------- Jeffrey S. Tullman Incorporator 3 EX-3.10 8 file007.txt BYLAWS OF AHI PROPERTIES I, INC. Ex-3.10 BYLAWS OF AHI PROPERTIES I, INC. A DELAWARE CORPORATION ------------------ ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the 2 number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least one and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall 8 have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, 10 each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. 11 SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. 12 ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.11 9 file008.txt CERTIFICATE OF INCORPORATION & AMENDMENTS THERETO ARTICLES OF INC0RP0RATI0N of AIRLINE INTERIORS, INC. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: AIRLINE INTERIORS, INC. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 10016 South 51st Street, Phoenix, Arizona 85044. 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be as contractor and subcontractor for products and components utilized in commercial airliners. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive is the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Tiffany & Hoffmann, P.A., 500 Dial Tower, 1850 North Central Avenue, Phoenix, Arizona 85004, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. -1- The Initial Board of Directors shall consist of three persons, who shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address - ---- --------------- S. P. Desjardins 10016 South 51st Street Phoenix, Arizona 85044 Donald Townsend 10016 South 51st Street Phoenix, Arizona 85044 Donald Rutter 9940 Mesa Rim Road San Diego, California 92121 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address - ---- --------------- Donald Townsend 10016 South 51st Street Phoenix, Arizona 85044 Cora Yanacek 10016 South 51st Street Phoenix, Arizona 85044 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizons Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. -2- IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 25th day of January, 1994. /s/ DONALD W. TOWNSEND ---------------------------------------- DONALD W. TOWNSEND /s/ CORA YANACEK ---------------------------------------- CORA YANACEK -3- AMENDMENT TO ARTICLES OF INCORPORATION OF AIRLINE INTERIORS, INC. Airline Interiors, Inc. does hereby certify that at a meeting of the Board of Directors of Simula, Inc., a corporation organized and existing under the laws of the State of Arizona, duly called on the 1st day of February, 2000, the following resolutions were adopted and the same have not been revoked: RESOLVED, that Simula, Inc. as the parent corporation of its wholly-owned subsidiary, Airline Interiors, Inc., hereby authorizes the name change of said corporation to "AI Capital Corp."; RESOLVED, that the Articles of Incorporation of Airline Interiors, Inc. be amended by changing Article 1 thereof, so that said Article shall be and read as follows: Name. The name of the corporation is: "AI Capital Corp." IN WITNESS WHEREOF, the Secretary of this corporation has hereunto set his hand officially this 29th day of February, 2000. SIMULA, INC. /s/ Bradley P. Forst ---------------------------------------- Bradley P. Forst, Secretary EX-3.12 10 file009.txt BYLAWS OF AI CAPITAL CORP. BYLAWS of AIRLINE INTERIORS, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be Fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of January of each year. commencing with the year 1955, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation -1- acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) not more than fifty (50) days before the date of meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person of persons calling the meeting, to each shareholder of record entitled to vote as such meeting. If mailed, such notice shall be deemend to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announched at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholder shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of -2- sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents any announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of ail shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the -3- affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendence of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such -4- trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors: provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not as incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) -5- the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents, and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in -6- consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be -7- held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors of committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such -8- relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. -9- 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committeees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Aay books, records and minutes may be in written form or in auy other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action to Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of -10- the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided is these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, my be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corponaon, and, if specifically designated as such by the Board as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Execitive officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will bevested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence disbillity. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordances with the provisions od these Bylaws or as requried by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except at may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal -11- on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such. office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective. IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by ihe Board of Directors to do so may affix the seal of the Corporation to any instrument a seal. -12- X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporaaon considers pertinent. XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. -13- XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law, 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. 12.06 Conduct of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. * * * * * -14- EX-3.13 11 file010.txt CERTIFICATE OF INCORPORATION OF ARMOR BRANDS, INC. Ex-3.13 CERTIFICATE OF INCORPORATION OF ARMOR BRANDS, INC. ----------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Armor Brands, Inc. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of 2 Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on September 18, 2000. /s/ Robert L. Lawrence --------------------------- Robert L. Lawrence Incorporator 3 EX-3.14 12 file011.txt BYLAWS OF ARMOR BRANDS, INC. BYLAWS OF ARMOR BRANDS, INC. A DELAWARE CORPORATION ---------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and 2 the number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. 4 SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by a majority of the directors then in office, though less than a quorum, or by a sole 5 remaining director, and the directors so chosen shall hold office until the next annual election of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alterative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. 6 SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize 7 any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform 8 such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry 10 offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which 11 they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. ARTICLE VI Indemnification 12 The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.15 13 file012.txt CERTIFICATE OF FORMATION AND AMENDMENTS OF ARMOR CERTIFICATE OF FORMATION OF ARMOR GROUP SECURITY SERVICES, LLC ------------------- The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "Delaware Limited Liability Company Act"), hereby certifies that: FIRST: The name of the limited liability company (hereinafter called the "Limited Liability Company") is Armor Group Security Services, LLC. SECOND: The address of the registered office and the name and the address of the registered agent of the Limited Liability Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are: Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, Delaware 19808 THIRD: The Limited Liability Company shall, to the fullest extent permitted by the provisions of the Delaware Limited Liability Company Act, as the same may be amended and supplemented, indemnify the members, managers, officers and directors of the Limited Liability Company. Dated: November 21, 2000 /s/ Robert L. Lawrence -------------------------- Robert L. Lawrence Authorized Person CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF FORMATION OF ARMOR GROUP SECURITY SERVICES, LLC ----------------- (Under Section 202 of the Limited Liability Company Act) It is hereby certified that: 1. The name of the limited liability company is Armor Group Security Services, LLC (hereinafter called the "Limited Liability Company"). 2. The Certificate of Formation of the Limited Liability Company is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the limited liability company (hereinafter called the "Limited Liability Company") is ArmorGroup Services, LLC." 3. The amendment of the Certificate of Formation herein certified has been duly adopted in accordance with the provisions of Section 202 of the Limited Liability Company Act of the State of Delaware. Dated: December 27, 2000 /s/ Robert R. Schiller ------------------------- Robert R. Schiller Authorized Person EX-3.16 14 file013.txt OPERATING AGREEMENT OF ARMORGROUP SERVICES, LLC Ex-3.16 OPERATING AGREEMENT OF ARMOR GROUP SECURITY SERVICES, LLC This Operating Agreement (this "Agreement") of Armor Group Security Services, LLC (the "Company"), is entered into as of the 22nd day of November, 2000 by and between Armor Group Limited Partnership (the "Member"), a Scottish limited partnership, and the Company. Pursuant to and in accordance with the Limited Liability Company Law of the State of Delaware, as amended from time to time (the "LLCL"), the Member hereby agrees as follows: 1. Name. The name of the limited liability company shall be Armor Group Security Services, LLC. 2. Office. The principal office of the Company shall be located at 1400 Marsh Landing Parkway, Suite 112, Jacksonville, FL 32250 or such other place or places as the Member shall determine. 3. Term. The term of the Company commenced as of the date of filing of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware and the Company shall be dissolved and its affairs wound up as provided in said Certificate, in this Agreement or as otherwise provided in the LLCL. 4. Purpose. The Company is formed for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the LLCL, and engaging in any other lawful act or activity for which limited liability companies may be formed under the LLCL and engaging in any and all activities necessary or incidental to the foregoing. 5. Member. The name and the mailing address of the Member is as follows: Name Address ---- ------- Armor Group Limited Partnership 1400 Marsh Landing Parkway Suite 112 Jacksonville, FL 32250 The Member is authorized to admit additional members and/or create different classes of members. 6. Management; Powers. The business and affairs of the Company shall be managed by the Member. The Member is authorized to execute any and all documents on behalf of the Company necessary or appropriate in connection with the acquisition, financing, operation, management or development of any property of the Company. The Member may appoint one or more Managers who shall be authorized to exercise such of the Member's rights and power as designated by the Member. 7. Capital Contributions. The initial capitalization of the Company by the Member is set forth on Schedule A. 8. Additional Contributions. The Member is not required to make any additional capital contribution to the Company, provided however, that additional capital contributions may be made at such time and in such amounts as the Member shall determine. 9. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the Member as set forth on Schedule A. 10. Distributions. Distributions shall be made to the Members at the times and in the aggregate amounts determined by the Member and in accordance with the same percentages as profits and losses are allocated. 11. Admission of Additional Members. The Member may cause the Company to admit one or more additional members to the Company. 12. Liability of Members. The Member shall not have any liability for the obligations or liabilities of the Company. 13. Exculpation of Member. The Member shall not be liable to the Company for any breach of duty in such capacity, unless otherwise required by law. 14. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Operating Agreement. ARMOR GROUP SECURITY SERVICES, LLC By: /s/ Jonathan M. Spiller -------------------------------- Name: Jonathan M. Spiller Title: Manager By: /s/ Robert R. Schiller -------------------------------- Name: Robert R. Schiller Title: Manager ARMOR GROUP LIMITED PARTNERSHIP By: Armor Holdings GP, LLC By: /s/ Robert R. Schiller -------------------------------- Name: Robert R. Schiller Title: Secretary EXHIBIT A - -------------------------------------------------------------------------------- Name Capital Contribution Allocation of Profits and Losses - -------------------------------------------------------------------------------- Armor Group Limited $100 100% Partnership - -------------------------------------------------------------------------------- EX-3.17 15 file014.txt CERTIFICATE OF INCORPORATION AND AMENDMENTS CERTIFICATE OF INCORPORATION OF LPC ACQUISITION CORP. ---------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is LPC Acquisition Corp. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of 2 Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on October 12, 2000. /s/ Robert L. Lawrence ---------------------------------- Robert L. Lawrence Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF LPC ACQUISITION CORP. ---------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is LPC Acquisition Corp. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Lightning Powder Corp." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. Dated: November 15, 2000. LPC ACQUISITION CORP. By: /s/ Robert R. Schiller -------------------------- Name: Robert R. Schiller Title: Executive Vice President CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF LIGHTNING POWDER CORP. ---------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is Lightning Powder Corp. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Lightning Powder Company, Inc." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. Dated: November 21, 2000. LIGHTNING POWDER CORP. By: /s/ Robert R. Schiller -------------------------- Name: Robert R. Schiller Title: Executive Vice President CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF LIGHTNING POWDER COMPANY, INC. (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is Lightning Powder Company, Inc. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Armor Holdings Forensics, Inc." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. Dated: January 9, 2002. LIGHTNING POWDER COMPANY, INC. By: /s/ Stephen E. Croskrey ---------------------------------- Name: Stephen E. Croskrey Title: President EX-3.18 16 file015.txt BYLAWS OF ARMOR HOLDINGS FORENSICS, INC. Ex-3.18 BYLAWS OF LPC ACQUISITION CORP. A DELAWARE CORPORATION ---------------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non- election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. 2 SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held 4 at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. 5 This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alterative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary 6 of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of 7 the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors 8 and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. 9 SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. 10 SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 11 SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. 12 SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the 13 notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 14 EX-3.19 17 file016.txt CERTIFICATE OF FORMATION OF ARMOR HOLDINGS GP, LLC Ex 3.19 CERTIFICATE OF FORMATION OF ARMOR HOLDINGS GP, LLC ---------------- The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "Delaware Limited Liability Company Act"), hereby certifies that: FIRST: The name of the limited liability company (hereinafter called the "Limited Liability Company") is Armor Holdings GP, LLC. SECOND: The address of the registered office and the name and the address of the registered agent of the Limited Liability Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are: Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, Delaware 19808 THIRD: The Limited Liability Company shall, to the fullest extent permitted by the provisions of the Delaware Limited Liability Company Act, as the same may be amended and supplemented, indemnify the members, managers, officers and directors of the Limited Liability Company. Dated: October 26, 2000 /s/ Robert L. Lawrence ----------------------- Robert L. Lawrence Authorized Person EX-3.20 18 file017.txt AMENDED & RESTATED OPERATING AGREEMENT OF ARMOR AMENDED AND RESTATED OPERATING AGREEMENT OF ARMOR HOLDINGS GP, LLC This Amended and Restated Operating Agreement (this "Agreement") of Armor Holdings GP, LLC (the "Company"), is entered into as of the 8th day of October, 2003 by and between Armor Holdings, Inc. (the "Member"), a Delaware corporation, and the Company. Pursuant to and in accordance with the Limited Liability Company Law of the State of Delaware, as amended from time to time (the "LLCL"), the Member hereby agrees as follows: 1. Name. The name of the limited liability company shall be Armor Holdings GP, LLC. 2. Office. The principal office of the Company shall be located at 1400 Marsh Landing Parkway, Suite 112, Jacksonville, FL 32250 or such other place or places as the Member shall determine. 3. Term. The term of the Company commenced as of the date of filing of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware and the Company shall be dissolved and its affairs wound up as provided in said Certificate, in this Agreement or as otherwise provided in the LLCL. 4. Purpose. The Company is formed for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the LLCL, and engaging in any other lawful act or activity for which limited liability companies may be formed under the LLCL and engaging in any and all activities necessary or incidental to the foregoing. 5. Member. The name and the mailing address of the Member is as follows: Name Address ---- ------- Armor Holdings, Inc. 1400 Marsh Landing Parkway Suite 112 Jacksonville, FL 32250 The Member is authorized to admit additional members and/or create different classes of members. 6. Management; Powers. The business and affairs of the Company shall be managed by the Member. The Member is authorized to execute any and all documents on behalf of the Company necessary or appropriate in connection with the acquisition, financing, operation, management or development of any property of the Company. The Member may appoint one or more Managers and/or officers who shall be authorized to exercise such of the Member's rights and power as designated by the Member. 7. Capital Contributions. The initial capitalization of the Company by the Member is set forth on Schedule A. 8. Additional Contributions. The Member is not required to make any additional capital contribution to the Company, provided however, that additional capital contributions may be made at such time and in such amounts as the Member shall determine. 9. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the Member as set forth on Schedule A. 10. Distributions. Distributions shall be made to the Members at the times and in the aggregate amounts determined by the Member and in accordance with the same percentages as profits and losses are allocated. 11. Certification of Membership Interests. Each Member's membership interest in the Company shall be evidenced by a certificate (each, a "Certificate"). Each Certificate shall be executed by the Manager or any executive officer of the Company. The Company shall keep or cause to be kept a register in which the Company will provide for the registration and transfer of membership interests. Upon surrender for transfer of any Certificate, the Company will cause the execution, in the name of the registered holder or the designated transferee, of one or more new Certificates, evidencing the same aggregate amount of membership interest as did the Certificate surrendered. Every Certificate surrendered for transfer shall be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Manager or the executive officers of the Company, duly executed by the registered holder thereof. The Company shall issue a new Certificate in place of any Certificate previously issued if the record holder of the Certificate makes proof by affidavit, in form and substance satisfactory to the Manager or executive officers of the Company, that a previously issued Certificate has been lost, destroyed or stolen. A membership interest in the Company evidenced by a Certificate shall constitute a security for all purposes of Article 8 of the Delaware Uniform Commercial Code. 12. Admission of Additional Members. The Member may cause the Company to admit one or more additional members to the Company. 13. Liability of Members. The Member shall not have any liability for the obligations or liabilities of the Company. 14. Exculpation of Member. The Member shall not be liable to the Company for any breach of duty in such capacity, unless otherwise required by law. 15. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Operating Agreement. ARMOR HOLDINGS GP, LLC By: /s/ Robert R. Schiller --------------------------------- Name: Robert R. Schiller Title: Vice President ARMOR HOLDINGS, INC. By: /s/ Robert R. Schiller --------------------------------- Name: Robert R. Schiller Title: Chief Operating Officer, Chief Financial Officer and Secretary EXHIBIT A - -------------------------------------------------------------------------------- Name Capital Contribution Allocation of Profits and Losses - -------------------------------------------------------------------------------- Armor Holdings, Inc. $100 100% - -------------------------------------------------------------------------------- EX-3.21 19 file018.txt CERTIFICATE OF FORMATION OF ARMOR HOLDINGS CERTIFICATE OF FORMATION OF ARMOR HOLDINGS LP, LLC ------------ The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "Delaware Limited Liability Company Act"), hereby certifies that: FIRST: The name of the limited liability company (hereinafter called the "Limited Liability Company") is Armor Holdings LP, LLC. SECOND: The address of the registered office and the name and the address of the registered agent of the Limited Liability Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are: Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, Delaware 19808 THIRD: The Limited Liability Company shall, to the fullest extent permitted by the provisions of the Delaware Limited Liability Company Act, as the same may be amended and supplemented, indemnify the members, managers, officers and directors of the Limited Liability Company. Dated: October 26, 2000 /s/ Robert L. Lawrence -------------------------- Robert L. Lawrence Authorized Person EX-3.22 20 file019.txt AMENDED AND RESTATED OPERATING AGREEMENT OF ARMOR AMENDED AND RESTATED OPERATING AGREEMENT OF ARMOR HOLDINGS LP, LLC This Amended and Restated Operating Agreement (this "Agreement") of Armor Holdings LP, LLC (the "Company"), is entered into as of the 8th day of October, 2003 by and between Armor Holdings, Inc. (the "Member"), a Delaware corporation, and the Company. Pursuant to and in accordance with the Limited Liability Company Law of the State of Delaware, as amended from time to time (the "LLCL"), the Member hereby agrees as follows: 1. Name. The name of the limited liability company shall be Armor Holdings LP, LLC. 2. Office. The principal office of the Company shall be located at 1400 Marsh Landing Parkway, Suite 112, Jacksonville, FL 32250 or such other place or places as the Member shall determine. 3. Term. The term of the Company commenced as of the date of filing of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware and the Company shall be dissolved and its affairs wound up as provided in said Certificate, in this Agreement or as otherwise provided in the LLCL. 4. Purpose. The Company is formed for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the LLCL, and engaging in any other lawful act or activity for which limited liability companies may be formed under the LLCL and engaging in any and all activities necessary or incidental to the foregoing. 5. Member. The name and the mailing address of the Member is as follows: Name Address ---- ------- Armor Holdings, Inc. 1400 Marsh Landing Parkway Suite 112 Jacksonville, FL 32250 The Member is authorized to admit additional members and/or create different classes of members. 6. Management; Powers. The business and affairs of the Company shall be managed by the Member. The Member is authorized to execute any and all documents on behalf of the Company necessary or appropriate in connection with the acquisition, financing, operation, management or development of any property of the Company. The Member may appoint one or more Managers and/or officers who shall be authorized to exercise such of the Member's rights and power as designated by the Member. 7. Capital Contributions. The initial capitalization of the Company by the Member is set forth on Schedule A. 8. Additional Contributions. The Member is not required to make any additional capital contribution to the Company, provided however, that additional capital contributions may be made at such time and in such amounts as the Member shall determine. 9. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the Member as set forth on Schedule A. 10. Distributions. Distributions shall be made to the Members at the times and in the aggregate amounts determined by the Member and in accordance with the same percentages as profits and losses are allocated. 11. Certification of Membership Interests. Each Member's membership interest in the Company shall be evidenced by a certificate (each, a "Certificate"). Each Certificate shall be executed by the Manager or any executive officer of the Company. The Company shall keep or cause to be kept a register in which the Company will provide for the registration and transfer of membership interests. Upon surrender for transfer of any Certificate, the Company will cause the execution, in the name of the registered holder or the designated transferee, of one or more new Certificates, evidencing the same aggregate amount of membership interest as did the Certificate surrendered. Every Certificate surrendered for transfer shall be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Manager or the executive officers of the Company, duly executed by the registered holder thereof. The Company shall issue a new Certificate in place of any Certificate previously issued if the record holder of the Certificate makes proof by affidavit, in form and substance satisfactory to the Manager or executive officers of the Company, that a previously issued Certificate has been lost, destroyed or stolen. A membership interest in the Company evidenced by a Certificate shall constitute a security for all purposes of Article 8 of the Delaware Uniform Commercial Code. 12. Admission of Additional Members. The Member may cause the Company to admit one or more additional members to the Company. 13. Liability of Members. The Member shall not have any liability for the obligations or liabilities of the Company. 14. Exculpation of Member. The Member shall not be liable to the Company for any breach of duty in such capacity, unless otherwise required by law. 15. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Operating Agreement. ARMOR HOLDINGS LP, LLC By: /s/ Robert R. Schiller --------------------------------- Name: Robert R. Schiller Title: Vice President ARMOR HOLDINGS, INC. By: /s/ Robert R. Schiller --------------------------------- Name: Robert R. Schiller Title: Chief Operating Officer, Chief Financial Officer and Secretary EXHIBIT A - -------------------------------------------------------------------------------- Name Capital Contribution Allocation of Profits and Losses - -------------------------------------------------------------------------------- Armor Holdings, Inc. $100 100% - -------------------------------------------------------------------------------- EX-3.23 21 file020.txt CERTIFICATE OF FORMATION OF ARMOR HOLDINGS Ex-3.23 CERTIFICATE OF FORMATION OF ARMOR HOLDINGS MOBILE SECURITY, L.L.C. The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "Delaware Limited Liability Company Act"), hereby certifies that: FIRST: The name of the limited liability company (hereinafter called the "Limited Liability Company") is ARMOR HOLDINGS MOBILE SECURITY, L.L.C. SECOND: The address of the registered office and the name and the address of the registered agent of the Limited Liability Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are: Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, Delaware 19808 THIRD: The Limited Liability Company shall, to the fullest extent permitted by the provisions of the Delaware Limited Liability Company Act, as the same may be amended and supplemented, indemnify the members, managers, officers and directors of the Limited Liability Company. FOURTH: The formation of the Limited Liability Company shall be effective on June 30, 2003. Dated: June 30, 2003 /s/ Robert R. Schiller ------------------------------ Robert R. Schiller Authorized Person EX-3.24 22 file021.txt OPERATING AGREEMENT OF ARMOR HOLDINGS MOBILE Ex-3.24 OPERATING AGREEMENT OF ARMOR HOLDINGS MOBILE SECURITY, L.L.C. This Operating Agreement (this "Agreement") of ARMOR HOLDINGS MOBILE SECURITY, L.L.C. (the "Company"), is entered into as of the 1st day of May, 2003 by and between ARMOR HOLDINGS, INC. (the "Member") and the Company. Pursuant to and in accordance with the Limited Liability Company Act of the State of Delaware, as amended from time to time (the "Act"), the Member hereby agrees as follows: ARTICLE I GENERAL 1. Formation. The Company was initially formed as a Delaware corporation by the filing of a Certificate of Incorporation pursuant to the General Company Law of the State of Delaware (the `DGCL") on April 16, 2001 under the name "BENGAL ACQUISITION CORP." The Company subsequently changed its name to ARMOR HOLDINGS MOBILE SECURITY, INC." pursuant to a Certificate of Amendment filed on December 11, 2002. The Company was formed as a Delaware limited liability company on June 30, 2003 by the filing with the Secretary of State of Delaware (a) a Certificate of Conversion pursuant to the DGCL converting the Company from a corporation to a limited liability company and (b) a Certificate of Formation pursuant to the Act under the name "ARMOR HOLDINGS MOBILE SECURITY, L.L.C." 2. Name. The name of the limited liability company shall be ARMOR HOLDINGS MOBILE SECURITY, L.L.C. 3. Registered Office; Principal Place of Business. The name and address of the Company's registered agent for service of process in the State of Delaware is Company Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The managers may change the registered agent, change the location of the Company's principal place of business, or establish additional places of business at such locations as such managers may from time to time determine upon compliance with the Act. 4. Term. The term of the Company commenced as of the date of filing of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware and shall be perpetual unless the Company shall be dissolved and its affairs wound up as provided in the Certificate of Formation, in this Agreement or as otherwise provided in the Act. 5. Purpose. The Company is formed for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the Act, and engaging 1 in any other lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing. ARTICLE II CAPITAL; DISTIBUTIONS 1. Capital Contributions. The initial capitalization of the Company by the members is set forth on Schedule A. 2. Additional Contributions. The members are not required to make any additional capital contribution to the Company, provided however, that additional capital contributions may be made at such time and in such amounts as the members shall determine. 3. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the members as set forth on Schedule A. 4. Distributions. Distributions shall be made to the members at the times and in the aggregate amounts determined by the members and in accordance with the same percentages as profits and losses are allocated. ARTICLE III MEMBERS 1. Initial Member; Membership Interests. The initial member of the Company shall be Armor Holdings, Inc. having an address at 1400 Marsh Landing Parkway, Suite 112, Jacksonville, FL 32250. The Initial Member is authorized to admit additional members and/or create different classes of members. "Membership Interest" means a member's entire interest in the Company, including the right to participate in the management of the business and affairs of the Company, including the right to vote on, consent to, or otherwise participate in any decision or action of or by the Members granted pursuant to this Agreement and the Act, and to receive allocations as net profits, net loses and distributions. 2. Annual Meetings. The annual meeting of members for the purpose of electing managers and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Managers and stated in the notice of the meeting. At each annual meeting, the members entitled to vote shall elect a Board of Managers and they may transact such other business as shall be stated in the notice of the meeting. 3. Special Meetings. Special meetings of the members for any purpose or purposes may be called by the President or Secretary, or by resolution of the managers. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. 4. Notice of Meetings. Except as otherwise expressly required by law or the 2 Certificate of Formation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given to each member entitled to vote thereat at his address as it appears on the records of the Company not less than ten (10) nor more than sixty (60) days prior to the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous written consent of all the members entitled to vote thereat. 5. Quorum. Except as otherwise expressly required by law, the Certificate of Formation, or this Agreement, the presence, in person or by proxy, of members owning a majority of the Membership Interests of the Company entitled to vote shall constitute a quorum at all meetings of members. In the event a quorum shall not be present at any meeting, a majority of the Membership Interests entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice otherwise than by announcement at the meeting. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those members entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. 6. Voting. Each member shall, except as otherwise provided by law or by the Certificate of Formation, at every meeting of the members be entitled to vote in person or by proxy, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Upon the demand of any member, any votes cast at such meeting shall be cast by ballot. Managers shall be elected by a plurality of the Membership Interests present in person or represented by proxy at the meeting and entitled to vote on the election of managers. Any other action shall be authorized by a vote of a majority of the Membership Interests except as may be otherwise prescribed by the laws of the State of Delaware or the Certificate of Formation. A complete list of the members entitled to vote at any meeting of members, arranged in alphabetical order with the address of each and the Membership Interest of each, shall be open to the examination of any member, 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 thereof and may be inspected by any member who is present. 7. Action Without Meeting. Unless otherwise provided in the Certificate of Formation any action required or permitted to be taken at any meeting, without prior notice and without a vote of members 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 Membership Interests of the Company 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 Membership Interests entitled to vote thereon were present and voted. Prompt notice of the taking of the action without a meeting by less than unanimous written consent shall be given to those members who have not consented in writing. 3 ARTICLE IV MANAGERS 1. General Powers. The Board of Managers shall exercise all of the powers of the Company except such as are by law, or by the Certificate of Formation of the Company or by this Agreement conferred upon or reserved to the members. 2. Number, Qualification and Term of Office. The number of managers shall be no less than one but no more than eight, which number shall be fixed by the members or the Board of Managers of the Company. The managers shall be elected at the annual meeting of the members and each manager shall serve until his successor shall have been elected and shall qualify. Managers need not be members. 3. Quorum. A majority of the managers shall constitute a quorum for the transaction of business. In the absence of a quorum, a majority of the managers present may adjourn any meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. 4. Place of Meeting, etc. The Board of Managers may hold its meetings, have one or more offices and keep the books and records of the Company at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. 5. Regular Meetings. A regular meeting of the Board of Managers shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of members, and other regular meetings of said Board shall be held at times and places as said Board shall direct. 6. Special Meetings. Special meetings of the Board of Managers may be called by the President or Secretary on the written request of the managers and shall give at least two (2) days notice of the time and place of each special meeting 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. 8. Organization. At each meeting of the Board of Managers, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a manager chosen by a majority of the managers present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. 9. Resignations. Any manager, member of a committee, or officer may resign at 4 any time by giving written notice to the President or the Secretary of the Company. The resignation shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 10. Removal. Any manager may be removed with or without cause, by the affirmative vote of a majority of the Membership Interests. 11. Vacancies. If the office of any manager, member of a committee or other officer becomes vacant, the remaining managers in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until their successors are duly elected and qualified, or until their earlier resignation or removal. 12. Compensation of Managers. Managers may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to preclude any manager from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for their services and expenses. 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Managers, at any time the number of managers shall be more than two (2), the managers may designate one or more committees of the Board of Managers, each committee to consist of two or more managers. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Managers in the management of the business and affairs of the Company, including the power and authority to authorize the seal of the Company to be affixed to all papers that may require it. No committee, however, shall have the power to amend the Certificate of Formation, amend this Agreement, declare distributions or admit new members of the Company. Further, the Board of Managers may designate one or more managers as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Managers, and 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 or they constitute a quorum, may unanimously appoint another member of the Board of Managers to act at the meeting in the place of any such absent or disqualified member. 14. Participation in Meetings. Members of the Board of Managers or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. 5 ARTICLE V OFFICERS 1. Number. The officers of the Company shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Managers, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article V. Any number of offices may be held by the same person. 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Managers at their first meeting after each annual meeting of the members of the Company. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. 3. Subordinate Officers. The Board of Managers or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Company as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Managers or the Chief Executive Officer may from time to time prescribe. The Board of Managers or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. 7. President. The President shall be the Chief Executive Officer of the Company and shall have general direction of the affairs of the Company and general supervision over its several officers, subject, however, to the control of the Board of Managers, and in general shall perform such duties and, subject to the other provisions of this Agreement, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Managers. 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of Membership Interests of the Company and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Managers, the President or prescribed by this Agreement. 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the members, the Board of Managers and any committee when so required, shall see that all notices are duly given in accordance with the provisions of this Agreement and as required by law, shall be custodian of the records and the seal of the Company and see that the seal is affixed to all documents, the execution of which on 6 behalf of the Company under its seal is duly authorized in accordance with the provisions of this Agreement, shall keep or cause to be kept a register of the post office address of each member, may sign with the Chairman of the Board, the President or any Vice President certificates of Membership Interests of the Company, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Managers, the President or prescribed by this Agreement. 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Managers or prescribed by this Agreement. 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Company, and deposit all such funds in the name of the Company in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of this Agreement, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any company controlled by the Company to any of the managers of the Company upon application during business hours at the office of the company, or such other company, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Company from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of Membership Interests of the Company, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Managers or the President or prescribed by this Agreement. 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Managers or prescribed by this Agreement. 14. Other Officers. Such officers as the Board of Managers may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Managers. The Board of Managers may delegate to any other officer of the Company the power to choose such other officers and to prescribe their respective duties and powers. ARTICLE VI MEMBERSHIP INTERESTS AND THEIR TRANSFER 1. Certificates of Membership Interests. Certificates for Membership Interests of the Company shall be in such form not inconsistent with law as shall be approved by the Board of Managers. They shall be numbered in order of their issue and shall be signed by the 7 Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Company, and the seal of the Company is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. 2. Transfer of Membership Interests. Transfer of Membership Interests of the Company shall be made only on the books of the Company by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Company, or a transfer agent of the Company, if any, on surrender of the certificate or certificates for such Membership Interests properly endorsed. A person in whose name Membership Interests stand on the books of the Company shall be deemed the owner thereof as regards the Company, and the Company shall not be bound to recognize any equitable or other claim to or interest in such Membership Interests 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 the State of Delaware. 3. Lost Destroyed and Mutilated Certificates. The holder of any certificates issued by the Company shall immediately notify the Company of any loss, destruction or mutilation of the certificate or the failure to receive a certificate issued by the Company, and the Board of Managers or the Secretary of the Company may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of Membership Interests, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Managers with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates issued by the Company which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 4. Fixing Date for Determination of Members of Record. In order that the Company may determine the members entitled to notice of or to vote at any meeting of members or any adjournment thereof, to express consent to action in writing without a meeting, to receive payment of any distribution or allotment of any rights, to exercise any rights in respect of any change, conversion or exchange of Membership Interests or for the purpose of any other lawful action, the Board of Managers 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, and only such members as shall be members of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such action, to receive payment of such distribution or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any Membership Interests on the books of the Company after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining members entitled to notice of or to vote at a meeting of members shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 8 ARTICLE VII GENERAL PROVISIONS 1. Fiscal Year. The fiscal year of the Company shall end on such date of each year as shall be determined by the Board of Managers of the Company. 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Formation or this Agreement to be given, 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. 3. Seal. The Board of Managers shall provide a suitable seal containing the name of the Company, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. 4. Disbursements. All checks or demands for money and notes of the Company shall be signed by such officer or officers or such other person or persons as the Board of Managers may from time to time designate. 5. Indemnification. No members shall have any liability for the obligations or liabilities of the Company nor shall be liable to the Company for any breach of duty in such capacity, unless otherwise required by law. The Company shall, to the fullest extent permitted by the Act, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the Act from and against any and all of the expenses, liabilities or other matters referred to in or covered by the Act, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any agreement, vote of members or disinterested managers or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a manager, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 6. Amendments. Amendments may be made to this Agreement from time to time with the written consent of all of the Members. In making any amendment, there shall be prepared and filed for recordation by the Member such documents and certificates as shall be required to be prepared and filed under the Act and under the laws of the other jurisdictions under the laws of which the Company is then formed or otherwise required to make such filing. 7. Admission of Additional Members. Upon the written consent of all of the members, admit one or more additional members of the Company may be admitted. 8. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. 9. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Members, Assignees, and their respective legal representatives and successors. 9 10. Counterparts. This Agreement may be executed in multiple counterparts, facsimile signature constituting an original, each of which may bear the signatures of less than all the parties, but all of which together shall constitute one instrument. 11. Entire Agreement; Severability. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and no party hereto shall be bound by any communications between them on the subject matter of this Agreement unless in writing and bearing a date contemporaneous with or subsequent to the date of this Agreement. Any prior written agreements shall, upon the execution of his Agreement, be null and void. The parties agree that if any term or provision of this Agreement contravenes or is invalid under any federal, state or local law, court decision, rule, ordinance or regulation, this Agreement shall, as to the jurisdiction under which such legal authority is promulgated or rendered, be construed as if it did not contain the offending term or provision, and the remaining provisions of this Agreement shall not be affected thereby; provided, however, that if the removal of such offending term or provision materially alters the burdens or benefits of any of the parties under this Agreement, the parties agree to negotiate in good faith such modifications to this Agreement as are appropriate to insure the burdens and benefits of each party under such modified Agreement are reasonably comparable to the burdens and benefits originally contemplated and expected. 12. Captions. The captions are inserted for convenience of reference only and shall not affect the construction of this Agreement. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Operating Agreement. ARMOR HOLDINGS MOBILE SECURITY, L.L.C. By: /s/ Robert R. Schiller --------------------------------- Name: Robert R. Schiller Title: Sole Manager ARMOR HOLDINGS, INC. By: /s/ Robert R. Schiller --------------------------------- Name: Robert R. Schiller Title: Chief Operating Officer and Chief Financial Officer 10 EXHIBIT A
Capital Allocation of Membership Name Contribution Profits and Losses Interests ARMOR HOLDINGS, INC. $100.00 100% 100%
11 EX-3.25 23 file022.txt CERTIFICATE OF FORMATION OF ARMOR HOLDINGS PAYROLL Ex-3.25 CERTIFICATE OF FORMATION OF ARMOR HOLDINGS PAYROLL SERVICES, LLC ------------------- The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Title 6, Chapter 18 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "Delaware Limited Liability Company Act"), hereby certifies that: FIRST: The name of the limited liability company (hereinafter called the "Limited Liability Company") is Armor Holdings Payroll Services, LLC. SECOND: The address of the registered office and the name and the address of the registered agent of the Limited Liability Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are: Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, Delaware 19808 THIRD: The Limited Liability Company shall, to the fullest extent permitted by the provisions of the Delaware Limited Liability Company Act, as the same may be amended and supplemented, indemnify the members, managers, officers and directors of the Limited Liability Company. Dated: December 31, 2002 /s/ Marcus Colagiacomo ----------------------- Marcus Colagiacomo Authorized Person EX-3.26 24 file023.txt OPERATING AGREEMENT OF ARMOR HOLDINGS PAYROLL Ex-3.26 OPERATING AGREEMENT OF ARMOR HOLDINGS PAYROLL SERVICES, LLC This Operating Agreement (this "Agreement") of Armor Holdings Payroll Services, LLC, a Delaware limited liability company (the "Company"), is entered into as of the 31st day of December, 2002 by and between Break-Free Armor Corp., a Delaware corporation (the "Member"), and the Company. Pursuant to and in accordance with the Limited Liability Company Act of the State of Delaware, as amended from time to time (the "LLCA"), the Member hereby agrees as follows: 1. Name. The name of the limited liability company shall be Armor Holdings Payroll Services, LLC. 2. Office. The principal office of the Company shall be located at 1400 Marsh Landing Parkway, Suite 112, Jacksonville, FL 32250 or such other place or places as the Member shall determine. 3. Term. The term of the Company commenced as of the date of filing of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware and the Company shall be dissolved and its affairs wound up as provided in said Certificate, in this Agreement, or as otherwise provided in the LLCA. 4. Purpose. The Company is formed for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the LLCA and engaging in any and all activities necessary or incidental to the foregoing. 5. Member. The name and the mailing address of the Member is as follows: Name Address ---- ------- Break-Free Armor Corp. 1400 Marsh Landing Parkway Suite 112 Jacksonville, FL 32250 The Member is authorized to admit additional members and/or create different classes of members. 6. Management; Powers. The business and affairs of the Company shall be managed by one or more managers (the "Manager"), as determined by the Member. Any Manager acting alone is authorized to execute any and all documents on behalf of the Company necessary or appropriate in connection with the acquisition, financing, operation, management or development of any property of the Company and shall have all other rights and powers as designated by the Member. The initial Managers of the Company are Glenn Heiar and Edward Bayhi. 7. Capital Contributions. The initial capitalization of the Company by the Member is set forth on Schedule A. 8. Additional Contributions. The Member is not required to make any additional capital contribution to the Company, provided however, that additional capital contributions may be made at such time and in such amounts as the Member shall determine. 9. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the Member as set forth on Schedule A. 10. Distributions. Distributions shall be made to the Members at the times and in the aggregate amounts determined by the Member and in accordance with the same percentages as profits and losses are allocated. 11. Admission of Additional Members. The Member may cause the Company to admit one or more additional members to the Company. 12. Liability of Members. The Member shall not have any liability for the obligations or liabilities of the Company. 13. Exculpation of Member. The Member shall not be liable to the Company for any breach of duty in such capacity, unless otherwise required by law. 14. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Operating Agreement. ARMOR HOLDINGS PAYROLL SERVICES, LLC By: /s/ Glenn Heiar -------------------------------- Name: Glenn Heiar Title: Manager By: /s/ Edward Bayhi -------------------------------- Name: Edward Bayhi Title: Manager BREAK-FREE ARMOR CORP. By: /s/ Stephen E. Croskrey -------------------------------- Name: Stephen E. Croskrey Title: President SCHEDULE A - -------------------------------------------------------------------------------- Name Capital Contribution Allocation of Profits and Losses - -------------------------------------------------------------------------------- Break-Free Armor Corp. $100 100% - -------------------------------------------------------------------------------- EX-3.27 25 file024.txt CERTIFICATE OF INCORPORATION OF ARMOR HOLDINGS CERTIFICATE OF INCORPORATION OF AMERICAN BODY ARMOR & EQUIPMENT, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is: American Body Armor & Equipment, Inc. SECOND: The address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805. County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is One Thousand Five Hundred (1,500) shares, par value $.001 per share. All such shares are of one class and are shares of Common Stock. FIFTH: The name and the mailing address of the incorporator is as follows: NAME MAILING ADDRESS - ---- --------------- c/o Kane Kessler, P.C. Richard M. Rosier 1350 Avenue of the Americas, 26th Fl. New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of 2 any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on June 16, 1997. /s/ RICHARD M. ROSIER ---------------------------------------- RICHARD M. ROSIER, Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF AMERICAN BODY ARMOR & EQUIPMENT, INC. (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is American Body Armor & Equipment, Inc. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Armor Holdings Products, Inc." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. Dated: April 15, 2002. AMERICAN BODY ARMOR & EQUIPMENT, INC. By: /s/ Todd Smith ------------------------------------- Name: Todd Smith Title: Secretary EX-3.28 26 file025.txt BYLAWS OF ARMOR HOLDINGS PRODUCTS, INC. BYLAWS OF AMERICAN BODY ARMOR & EQUIPMENT, INC. ARTICLE I Stockholders SECTION 1. Annual Meetings. Subject to change by resolution of the Board of Directors, the annual meeting of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held on a date fixed, from time to time, by the Board of Directors of the Corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. The meeting may be held at such time and such place within or without the State of Delaware as shall be fixed by the Board of Directors and stated in the notice of the meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the President, a majority of the Board of Directors or the Chairman of the Board or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation of the Corporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten nor more than sixty days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney hereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in Section 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least a majority of all the shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares voting at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of both the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Every proxy must be signed by the stockholder or by his attorney-in-fact, and shall be filed with the Inspectors of Election, if any, prior to being voted upon. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the Certificate of Incorporation and these Bylaws. In the election of directors, and for any other action, voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order 2 with the address of each and the number of shares held by each, 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Addresses of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, or if any Inspector appointed be absent or refuses to act, or if his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. Each Inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspectors at such meeting with strict impartiality and according to the best of his ability. The Inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots, or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the Inspector or Inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by him or them and execute a certificate of any fact found by him or them. Except as otherwise required by subsection (e) of Section 231 of the General Corporation Law, the provisions of that Section shall not apply to the corporation. All proxies shall be filed with the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any meeting of stockholders, or any action which may be taken at any 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 3 action so taken, shall be signed by the holders of all of the outstanding voting stock of the Corporation. In addition, any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The initial number of directors shall consist of two (2) persons. Thereafter, the number of directors may be fixed from time to time by action of the Board of Directors within the maximum and minimum limits provided by the Certificate of Incorporation. Directors need not be stockholders. The directors shall be elected at the annual meeting of stockholders except as otherwise provided for filling vacancies. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. The number of directors may be increased or decreased by action of the stockholders or of the directors. SECTION 3. Chairman of the Board. The Chairman of the Board, if any, shall preside, if present, at all meetings of the stockholders and at all meetings of the Board of Directors and shall perform such other duties and have such other powers as from time to time may be assigned by the Board of Directors or prescribed by these Bylaws. SECTION 4. Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall, at the request of the Chairman of the Board or in his absence or 4 disability, perform the duties of the Chairman of the Board and when so acting shall, have all the powers of, and be subject to all restrictions upon, the Chairman of the Board and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Chairman of the Board or prescribed by these Bylaws. SECTION 5. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided that such majority shall constitute at least one-half of the whole Board. The act of a majority of a quorum of the Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within ten days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 6. Place of Meetings; Etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 7. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at such times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 8. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the President, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopier, overnight mail, telegraph, cable, wireless, 5 telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a special meeting called in accordance with this Section 8, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 9. Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 10. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as secretary of the meeting. SECTION 11. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective SECTION 12. Removal of Directors. Except as otherwise provided by law, any director or the entire Board of Directors may be removed, with or without cause, by the affirmative vote of the holders of a majority of the shares then entitled to vote at an election of directors. SECTION 13. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 14. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. 6 SECTION 15. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every member of such committee at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee SECTION 16. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. SECTION 17. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose 7 if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or the committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall consist of a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive Vice President and one or more other Vice-Presidents. In addition, the Board may elect one or more Vice Presidents and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person, as the directors may determine. Except as may otherwise be provided in the resolutions of the Board of Directors choosing him, no officer other than the Chairman or Vice-Chairman of the Board, if any, need be a director. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the President may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these Bylaws provided or as the Board of Directors or the President may from time to time prescribe. The Board of Directors or the President may from time to time authorize any officer to appoint and remove agents and employees and to 8 prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular election or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice Presidents. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. 9 SECTION 10. Assistant Secretaries. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the Corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurers. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. No officer shall be prevented from receiving such salary 10 by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officers of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. ARTICLE IV Shares and Their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation shall be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Uncertificated Shares. Subject to any conditions imposed by the General Corporation Law, the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertificated shares. Within a reasonable time after the issuance or transfer of any uncertificated shares, the Corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law. SECTION 3. Fractional Share Interests. The Corporation may, but shall not be required to, issue fractions of a share. If the Corporation does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the Corporation in the event of liquidation. The Board of 11 Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the Corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose. SECTION 4. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney hereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 5. Lost, Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 6. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. 12 SECTION 7. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If the stock transfer books are to be closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting in the case of a merger or consolidation, the books shall be closed at least twenty days before such meeting. SECTION 8. Beneficial Owners. 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 law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. 13 SECTION 4. Registered Office. The registered office of the Corporation shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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 at the Board of Directors may from time to time designate. 14 ARTICLE VI Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 15 EX-3.29 27 file026.txt CERTIFICATE OF INCORPORATION OF ARMOR HOLDINGS CERTIFICATE OF INCORPORATION OF ARMOR HOLDINGS PROPERTIES, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is: Armor Holdings Properties, Inc. SECOND: The address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Services Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is One Thousand Five Hundred (1,500) shares, par value $.001 per share. All such shares are of one class and are shares of Common Stock. FIFTH: The name and the mailing address of the incorporator is as follows: NAME MAILING ADDRESS - ---- --------------- c/o Kane Kessler, P.C. Richard M. Rosier 1350 Avenue of the Americas, 26th Fl. New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation 2 shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on October 21, 1996. /s/ Richard M. Rosier -------------------------------- RICHARD M. ROSIER, Incorporator 3 EX-3.30 28 file027.txt BYLAWS OF ARMOR HOLDINGS PROPERTIES, INC. BYLAWS OF ARMOR HOLDINGS PROPERTIES, INC. ARTICLE I Stockholders SECTION 1. Annual Meetings. Subject to change by resolution of the Board of Directors, the annual meeting of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held on a date fixed, from time to time, by the Board of Directors of the Corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. The meeting may be held at such time and such place within or without the State of Delaware as shall be fixed by the Board of Directors and stated in the notice of the meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the President, a majority of the Board of Directors or the Chairman of the Board or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation of the Corporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten nor more than sixty days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney hereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in Section 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least a majority of all the shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares voting at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of both the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Every proxy must be signed by the stockholder or by his attorney-in-fact, and shall be filed with the Inspectors of Election, if any, prior to being voted upon. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the Certificate of Incorporation and these Bylaws. In the election of directors, and for any other action, voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the 2 stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Addresses of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, or if any Inspector appointed be absent or refuses to act, or if his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. Each Inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspectors at such meeting with strict impartiality and according to the best of his ability. The Inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots, or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the Inspector or Inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by him or them and execute a certificate of any fact found by him or them. Except as otherwise required by subsection (e) of Section 231 of the General Corporation Law, the provisions of that Section shall not apply to the corporation. All proxies shall be filed with the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any meeting of stockholders, 3 or any action which may be taken at any 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 all of the outstanding voting stock of the Corporation. In addition, any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The initial number of directors shall consist of two (2) persons. Thereafter, the number of directors may be fixed from time to time by action of the Board of Directors within the maximum and minimum limits provided by the Certificate of Incorporation. Directors need not be stockholders. The directors shall be elected at the annual meeting of stockholders except as otherwise provided for filling vacancies. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. The number of directors may be increased or decreased by action of the stockholders or of the directors. SECTION 3. Chairman of the Board. The Chairman of the Board, if any, shall preside, if present, at all meetings of the stockholders and at all meetings of the Board 4 of Directors and shall perform such other duties and have such other powers as from time to time may be assigned by the Board of Directors or prescribed by these Bylaws. SECTION 4. Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall, at the request of the Chairman of the Board or in his absence or disability, perform the duties of the Chairman of the Board and when so acting shall, have all the powers of, and be subject to all restrictions upon, the Chairman of the Board and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Chairman of the Board or prescribed by these Bylaws. SECTION 5. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided that such majority shall constitute at least one-half of the whole Board. The act of a majority of a quorum of the Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within ten days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 6. Place of Meetings; Etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 7. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at such times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 8. Special Meetings. Special meetings of the Board of Directors 5 may be called by the Chairman of the Board, the President, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopier, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a special meeting called in accordance with this Section 8, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 9. Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 10. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as secretary of the meeting. SECTION 11. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective SECTION 12. Removal of Directors. Except as otherwise provided by law, any director or the entire Board of Directors may be removed, with or without cause, by the affirmative vote of the holders of a majority of the shares then entitled to vote at an election of directors. SECTION 13. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 14. Compensation of Directors. Directors may receive such 6 reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 15. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every member of such committee at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 16. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. SECTION 17. Interested Directors. No contract or transaction between the 7 Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or the committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall consist of a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive Vice President and one or more other Vice-Presidents. In addition, the Board may elect one or more Vice Presidents and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person, as the directors may determine. Except as may otherwise be provided in the resolutions of the Board of Directors choosing him, no officer other than the Chairman or Vice-Chairman of the Board, if any, need be a director. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. 8 SECTION 3. Subordinate Officers. The Board of Directors or the President may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these Bylaws provided or as the Board of Directors or the President may from time to time prescribe. The Board of Directors or the President may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular election or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice Presidents. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, 9 the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 10. Assistant Secretaries. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the Corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurers. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. 10 SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officers of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. ARTICLE IV Shares and Their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation shall be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Uncertificated Shares. Subject to any conditions imposed by the General Corporation Law, the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertificated shares. Within a reasonable time after the issuance or transfer of any uncertificated shares, the Corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law. 11 SECTION 3. Fractional Share Interests. The Corporation may, but shall not be required to, issue fractions of a share. If the Corporation does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the Corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the Corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose. SECTION 4. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney hereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 5. Lost, Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 12 SECTION 6. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 7. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If the stock transfer books are to be closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting in the case of a merger or consolidation, the books shall be closed at least twenty days before such meeting. SECTION 8. Beneficial Owners. 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 law. 13 ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdraw; therefrom SECTION 4. Registered Office. The registered office of the Corporation shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. 14 SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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 at the Board of Directors may from time to time designate. ARTICLE VI Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 15 EX-3.31 29 file028.txt CERTIFICATE OF INCORPORATION & AMENDMENTS THERETO Ex-3.31 CERTIFICATE OF INCORPORATION OF FPG ACQUISITION CORP. -------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is FPG Acquisition Corp. SECOND: The address of the registered office of the Corporation in the State of Delaware is 30 Old Rudnick Lane, Dover, Delaware 19901, County of Kent; and the name of the registered agent of the Corporation in the State of Delaware is LexisNexis Document Solutions, Inc. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one hundred (100) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Joseph Bergman, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is 2 otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on May 8, 2002. /s/ Joseph Bergman ---------------------------------- Joseph Bergman Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF FPG ACQUISITION CORP. ---------------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is FPG Acquisition Corp. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Foldable Products Group, Inc." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware. Dated: September 27, 2002. FPG ACQUISITION CORP. By: /s/ Stephen E. Croskrey ---------------------------- Name: Stephen E. Croskrey Title: President 4 EX-3.32 30 file029.txt BYLAWS OF ARMOR HOLDINGS SAFETY PRODUCTS COMPANY BYLAWS OF FPG ACQUISITION CORP. A DELAWARE CORPORATION -------------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the 2 number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall 8 have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, 10 each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. 11 SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. 12 ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.33 31 file030.txt CERTIFICATE OF INCORPORATION AND AMENDMENTS ARTICLES OF INCORPORATION of SIMULA AUTOMOTIVE SAFETY DEVICES, INC. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: SIMULA AUTOMOTIVE SAFETY DEVICES, INC. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 401 West Baseline Road, Suite 204, Tempe, Arizona 85283. 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be as a manufacturer and licensor of inflatable tubular restraint systems and related automotive safety devices. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Tiffany & Hoffmann, P.A., 3550 North Central Avenue, Suite 1801, Phoenix, Arizona 85012, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. -1- The initial Board of Directors shall consist of three persons, each of whom shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address ---- --------------- Donald W. Townsend 401 West Baseline Road Suite 204 Tempe, Arizona 85283 Randall L. Taylor 401 West Baseline Road Suite 204 Tempe, Arizona 85283 Kevin W. Clark 401 West Baseline Road Suite 204 Tempe, Arizona 85283 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address ---- --------------- Randall L. Taylor 401 West Baseline Road Suite 204 Tempe, Arizona 85283 Cora Yanacek 401 West Baseline Road Suite 204 Tempe, Arizona 85283 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association of entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. -2- 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. IN WITNESS WHEREOF the following incorporators have signed these Articles of Incorporation on this 6th day of April, 1995. /s/ Randall L. Taylor ---------------------------------------- RANDALL L. TAYLOR /s/ Cora Yanacek ---------------------------------------- CORA YANACEK -3- AMENDMENT TO ARTICLES OF INCORPORATION OF SIMULA AUTOMOTIVE SAFETY DEVICES, INC. Pursuant to the provisions of A.R.S. Sections 10-1001, et. seq., the undersigned Corporation adopts the following amendment to its Articles of Incorporation: 1. The name of the Corporation is Simula Automotive Safety Devices, Inc. (the "Corporation"). 2. This Amendment to the Articles of Incorporation amends the provisions of the Articles of Incorporation of the Corporation filed with the Arizona Corporation Commission on April 5, 1995 (as previously amended, the "Articles of Incorporation"), and was duly adopted by the Board of Directors and shareholders of the Corporation in accordance with the applicable provisions of Sections 10-1001 through 10-1009 of the Arizona Revised Statutes. a. Article 1 is hereby amended by deleting such Article 1 in its entirety and replacing the deleted Article 1 with the following: 1. Name. The name of this corporation is ASD Capital Corp. b. Article 2 is hereby amended by deleting such Article 2 in its entirety and replacing the deleted Article 2 with the following: 2. Statutory Place of Business: The statutory place of business of the Corporation shall be 7822 South 46th Street, Phoenix, Arizona 85044. c. Article 6 is hereby amended by deleting such Article 6 in its entirety and replacing the deleted Article 6 with the following: 6. The Corporation appoints Mari I. Valenzuela, Simula, Inc., 7822 South 46th Street, Phoenix, Arizona 85044, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). d. Except as expressly amended herein, all other provisions of the Articles of Incorporation of this Corporation shall remain unchanged and in full force and effect as filed with the Arizona Corporation Commission and as amended prior to the date hereof. 3. The number of shares of the no par value common stock ("Common Stock") of the corporation issued and outstanding at the time of such adoption and entitled to vote thereon was ten thousand (10,000) shares of Common Stock. 4. Ten thousand (10,000) shares of Common Stock voted for the amendment, and zero (0) shares of Common Stock voted against the amendment. 5. The number of shares of Common Stock cast for the amendment was sufficient for approval by that voting group. DATED this 23rd day of July 2003. SIMULA AUTOMOTIVE SAFETY DEVICES, INC.,an Arizona corporation By: /s/ Mari I. Valenzuela ------------------------------------- Name: Mari I. Valenzuela Title: Secretary EX-3.34 32 file031.txt BYLAWS OF ASD CAPITAL CORP. BYLAWS of SIMULA AUTOMOTIVE SAFETY DEVICES, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of March of each year, commencing with the year 1996, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares -1- entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing -2- more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The -3- voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. -4- (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (1) If only one votes, his acts bind. (2) If more one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. -5- 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. -6- 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to me telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; -7- provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, -8- and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in The Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all -9- shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. -10- 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and -11- the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make if effective. IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. -12- 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law, 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either -13- by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. 12.06 Conduct of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. ******** -14- EX-3.35 33 file032.txt CERTIFICATE OF INCORPORATION & AMENDMENTS ARTICLES OF INCORPORATION OF B-SQUARE, INC. ARTICLE ONE The name of the Corporation is B-SQUARE, INC. ARTICLE TWO The period of its duration is perpetual. ARTICLE THREE The purpose for which the Corporation is organized is the transaction of any and all lawful business for which a corporation may be incorporated under the Texas Business Corporation Act. ARTICLE FOUR The aggregate number of shares which the Corporation shall have authority to issue is One Million (1,000,000) and such shares shall have no par value. ARTICLE FIVE The Corporation will not commence business until it has received consideration equal to or exceeding the value of One Thousand and no/100 Dollars ($1,000.00) consisting of money, labor done, or property actually received, for the issuance of its shares. ARTICLE SIX No shareholder of the Corporation shall have the preemptive right to acquire additional shares of the Corporation. No cumulative voting shall be allowed. ARTICLE SEVEN The street address of its initial Registered Office, and the name of its initial Registered Agent at this address is W. T. "Skip" Leake, 800 W. Airport Freeway, Suite 1020, L.B. 6020, Irving, Texas 75062. PAGE 1 ARTICLE EIGHT The number of initial Director is one (1). The name and addresses of the initial Director is: Daniel L. Bechtel 2708 St. Louis Ave. Fort Worth, Texas 76110-0281 ARTICLE NINE The name and address of the Incorporator is W. T. "Skip" Leake, 800 West Airport Freeway, Suite 1020, Lock Box 6020, Irving, Dallas County, Texas. ARTICLE TEN To the extent permitted by Texas Business Corporation Act Article 2.02-1, the Corporation will indemnify any director, officer, employee, or authorized agent of the Corporation against judgments, penalties (including excise and similar taxes), fines, settlements, and reasonable expenses actually incurred by the person in connection with a proceeding in which the person was, is, or is threatened to be made a named defendant or respondent because the person is or was a director, officer, employee or authorized agent of the Corporation. IN WITNESS WHEREOF, I hereunto set my hand this 9th day of September, 1993. /s/ W.T. "Skip" Leake ---------------------------------------- W.T. "Skip" Leake SUBSCRIBED, SWORN TO, AND ACKNOWLEDGED before me this the 9th day of September, 1993, to which witness my hand and seal of office. /s/ Rhonda Graham Marshall ---------------------------------------- Notary Public, State of Texas 1:33:8 [SEAL] NOTARY PUBLIC STATE OF TEXAS Rhonda Graham Marshall Commission Expires May 13, 1997 PAGE 2 EX-3.36 34 file033.txt BYLAWS OF B-SQUARE, INC. BY-LAWS OF B-SQUARE, INC. ARTICLE I. OFFICES 1.01. The Registered Office and Registered Agent. The registered office of the Corporation shall be at 800 W. Airport Freeway, Suite 1020, L.B. 6086, Irving, Texas 75062. The name of the Registered Agent at such address is W. T. "Skip" Leake. 1.02. The Principal Place of Business of the Corporation shall be determined by the Board of Directors. 1.03. Other Offices. The Corporation may also have offices at other places in or out of the State of Incorporation as the Board of Directors may determine or as the business of the Corporation requires. ARTICLE II. SHAREHOLDERS 2.01. Place of Meetings. Meetings of Shareholders shall be held at the time and place, in or out of the State of Incorporation stated in the Notice of the Meeting or in a Waiver of Notice. 2.02. Annual Meetings. An Annual Meeting of the Shareholders of shall be held each year on a date set by the Board of Directors following the close of the fiscal year. If the day is a legal holiday, then the meeting shall be on the next business day following. At the meeting, the Shareholders shall elect directors and transact such other business as may properly be brought before the meeting. 2.03. Voting List. At least ten (10) days before each meeting of the Shareholders, a complete list of the Shareholders entitled to vote at the meeting, arranged in alphabetical order, with the address of each and the number of voting shares held by each, shall be prepared by the officer or agent having charge of the stock transfer books. The list, for a period of ten (10) days prior to the meeting, shall be kept on file at the registered office of the Corporation and shall be subject to inspection by any Shareholders at any time during the whole time thereof, and shall be subject to the inspection of any Shareholder during the whole time of the meeting. PAGE 1 2.04. Special Meetings. Special meetings of the Shareholders for any purpose or purposes, unless otherwise prescribed by statute or by Articles of Incorporation, or by these By-Laws, may be called by the President, the Board of Directors, or the holders of not less than One-Tenth (1/10) of all of the shares entitled to vote at the meetings. Business transacted at the special meeting shall be confined to the purposes stated in the Notice of the Meeting. 2.05. Notice. Written or printed notice stating the place, the day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) days nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, Secretary or the officer or person calling the meeting, to each Shareholder of record entitled to vote at the meeting. If mailed, such notice shall be deemed to be delivered at his address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid. (See also By-Laws 5.01 and 5.02.) 2.06. Quorum. The holders of fifty one percent (51%) of the shares issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall be requisite and shall constitute a quorum at meetings of the Shareholders for the transaction of business except as otherwise provided by statute, by the Articles of Incorporation, or by these By-Laws. If a quorum is not present or represented at a meeting of the Shareholders, represented by proxy, the President 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, then 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 a meeting, the vote of the holders of a majority of the shares having voting power, present in person or represented by proxy, shall decide any question brought before the meeting, unless the question is one on which, by expressed provision of the statutes, the Articles of Incorporation, or these By-Laws, a higher vote is required in which case the expressed provision shall govern. The Shareholders present at a duly constituted meeting may continue to transact business until adjournment, despite the withdrawal of enough Shareholders to leave less than a quorum. 2.08. Method of Voting. Each outstanding share, regardless of class shall be entitled to one vote on each matter submitted to a vote at a meeting of Shareholders, except to the extent of the voting rights of the shares of any class or classes limited or denoted by the Articles of Incorporation. At any meeting of the Shareholders, every Shareholder having the right to vote may vote either in person, or by proxy executed in PAGE 2 writing by the Shareholder or by his duly authorized attorney-in-fact. No proxy shall be valid after eleven (11) 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 by law. Each proxy shall be filed with the Secretary of the Corporation prior to or at the time of the meeting. Voting for Directors shall be in accordance with Section 3.06 of these By-Laws. Any vote may be taken by voice or by show of hands unless someone entitled to vote objects, in which case written ballots shall be used. 2.09. Record Date: Closing Transfer Books. The Board of Directors may fix in advance a record date for the purpose of determining Shareholders entitled to notice of or to vote at a meeting of the Shareholders, the record date to be not less than ten (10) nor more than fifty (50) days prior to the meeting; or the Board of Directors may close the Stock Transfer Books for such purpose for a period of not less than ten (10) nor more than fifty (50) 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. Any action required by statute to be taken at a meeting of the Shareholders, or any action which may be taken at a meeting of the Shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the Shareholders entitled to vote with respect to the subject matter thereof and such consent shall have the same force and effect as a unanimous vote of the Shareholders. The consent may be in more than one (1) counter part so long as each Shareholder signs one of the counter parts. The signed consent, or a signed copy shall be placed in the minute book. 2.11. Telephone and Similar Meetings. Shareholders, Directors and Committee Members may participate in and hold a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened. 2.12. Order of Business at Meetings. The order of business at Annual Meetings and so far as practicable at other meetings of Shareholders shall be as follows unless changed by the Board of Directors: (1) Call to Order (2) Proof of due Notice of Meeting PAGE 3 (3) Determination of Quorum and Examination of Proxies (4) Announcement of availability of voting list (See By-Law 2.03.) (5) Announcement of distribution of Annual Statements (See By-Law 8.03.) (6) Reading and disposing of Minutes of last meeting of Shareholders (7) Reports of Officers and Committees (8) Appointment of Voting Inspectors (9) Unfinished Business (10) New Business (11) Nomination of Directors (12) Opening of Polls for Voting (13) Recess (14) Reconvening; Closing of Polls (15) Report of Voting Inspectors (16) Other Business (17) Adjournment 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 acts 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 Shareholders. 3.02. Qualification; Election; Term. The Board of Directors shall consist of three (3) directors, whom need not be a Shareholder or resident of any particular state. The Director shall be elected at the Annual Meeting of the Shareholders, except as provided in By-Laws 3.03 and 3.05. Each Director elected shall hold office until his successor shall be elected and shall qualify. PAGE 4 3.03. Change in Number. The number of Directors may be increased or decreased from time-to-time by amendment to these By-Laws, but no decrease shall have the effect of shortening the term of any incumbent Directors. Any Directorship to be filled by reason of an increase in the number of Directors shall be filled by election at an Annual Meeting or at a Special Meeting of Shareholders called for that purpose. 3.04. Removal. Any Director may be removed either for or without cause at any Special or Annual Meeting of Shareholders, by the affirmative vote of a majority in number of shares of the Shareholders 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 may be filled by an affirmative vote of a majority of the remaining Directors though less than a quorum of the Board of the remaining Directors elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. 3.06. Election of Directors. Directors shall be elected by majority vote. 3.07. Place of Meeting. Meetings of the Board of Directors, regular or special, may be held in or out of the State of Incorporation. 3.08. First Meeting. The first meeting of a newly elected Board shall be held without further notice immediately following the Annual Meeting of Shareholders, and at the same place, unless by unanimous consent of the Directors then elected and serving, the time and place is changed. 3.09. Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time-to-time be determined by the Board. 3.10. Special Meetings. Special meetings of the Board of Directors may be called by the President on three (3) day's notice to each Director, either personally or by mail or by telegram. Special meetings shall be called by the President or Secretary in like manner and on like notice on the written request of one (1) Director. Except as otherwise expressly provided by the statute, Articles of Incorporation, or these By-Laws, neither the business to be transacted at, nor the purpose of, any Special meeting need be specified in a Notice or Waiver of Notice. (See also By-Laws 5.01 and 5.02.) 3.11. Quorum; Majority Vote. At 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 PAGE 5 business. The act of a majority of the Directors present at a meeting which a quorum is present shall be the act of the Board of Directors, except as otherwise specifically provided by statutes, the Articles of Incorporation, or these By-Laws. If a quorum is not present at a meeting of the Board of Directors, the Directors present may adjourn the meeting from time-to-time, without notice other than an announcement at the meeting, until a quorum is present. 3.12. 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 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 therefore. Members of the Executive Committee or of Special or Standing Committees may, by resolution of the Board of Directors, be allowed like compensation for attending committee meetings. 3.13. Procedure. The board of Directors shall keep regular minutes of its proceedings. The minutes shall be placed in the minute book of the Corporation. 3.14. Action Without Meeting. Any action required or permitted to be taken at a meeting of Directors may be taken without a meeting if a consent in writing setting forth the actions so taken, is signed by all of 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. The consent may be in more than one counter part so long as each Director signs one of the counterparts. 3.15. Telephone and Similar Meetings. (Same as By-Law 2.11.) 3.16. Interested Directors, Officers, Shareholders. (A) Validity. If Paragraph (B) is satisfied, no contract or other transaction between the Corporation and any of its Directors, Officers of Security Holders, or any Corporation or firm in which any of them are directly or indirectly interested, shall be invalid solely because of this relationship or because of the presence of the Director, Officer or Security Holder at the meeting authorizing the contract or transaction, or his participation or vote in the meeting or authorization. PAGE 6 (B) Disclosure, Approval, Fairness. (1) Material facts of the relationship or interest of each such Director, Officer or Security Holder are known or disclosed: (a) to the Board of Directors and it nevertheless authorizes or ratifies the contract or transaction by a majority of the Directors present each such interested Director to be counted to be determined whether a quorum is present, but not in calculating the majority necessary to carry the vote; or (b) to the Shareholders and they nevertheless authorize or ratify the contract or transaction by all of the shares present, each such interested person to be counted for quorum and voting purposes; or (2) The contract or transaction is fair to the Corporation as of the time it is authorized or ratified by the Board of Directors or the Shareholders. (C) Non-Exclusive. This provision shall not be construed to invalidate a contract or transaction which would be valid in the absence of this provision. ARTICLE IV EXECUTIVE COMMITTEE 4.01. Designation. The Board of Directors may, by resolution adopted by a unanimous decision of the Board, designate an Executive Committee. 4.02. Number; Qualification; Term. The Executive Committee shall consist of one or more Directors, one of whom shall be the President. The Executive Committee shall serve at the pleasure of the Board of Directors. 4.03. Authority. 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 the affairs of the Corporation, including authority over the use of the Corporate Seal. However, the Executive Committee shall not have the authority of the Board in reference to: PAGE 7 (A) Amending the Articles of Incorporation; (B) Approving a plan of merger or consolidation; (C) Recommending to the Shareholders the sale, lease or exchange of all or substantially all of the property and assets of the Corporation otherwise than in the usual or regular course of its business; (D) Recommending to the Shareholders a voluntary dissolution of the Corporation or a revocation thereof; (E) Amending, altering, or repealing these By-Laws or adopting new By-Laws; (F) Filling vacancies in or removing members of the Board of Directors or of any Committee appointed by the Board of Directors; (G) Electing or removing Officers or members of such Committee; (H) Fixing the compensation of any member of any such Committee; (I) Altering or repealing any resolution of the Board of Directors which by its terms provides that it shall not be so amenable or repealable; (J) Declaring a dividend; or (K) Authorizing the issuance of shares of stock of the Corporation. 4.04. Change in Number. The number of Executive Committee members may be increased or decreased from time-to-time by resolution adopted by a majority of the whole Board of Directors. 4.05. Removal. Any member of the Executive 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 interest of the Corporation will be served thereby. 4.06. Vacancies. A vacancy occurring in the Executive 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 4.01. PAGE 8 4.07. Meetings. Time, place and notice (if any) of Executive Committee Meetings shall be determined by the Executive Committee. (See also By-Laws 5.01 and 5.02.) 4.08. Quorum; Majority Vote. At meetings of the Executive 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 number of members present at any meeting at which a quorum is present shall be the act of the Executive Committee, except as otherwise specifically provided by statute, the Articles of Incorporation, or these By-Laws. If a quorum is not present at a meeting of the Executive Committee, the members present may adjourn the meeting from time-to-time, without notice other than an announcement at the meeting, until a quorum is present. 4.09. Compensation. (Same as By-Law 3.12.) 4.10. Procedure. The Executive 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 the Executive Committee shall be placed in the minute book of the Corporation. 4.11. Action Without Meeting. Any action required or permitted to be taken at a meeting of the Executive 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 Executive 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. 4.12. Telephone and Similar Meetings. (Same as By-Law 2.11.) 4.13. Responsibility. The designation of an Executive Committee and the delegation of authority to it shall not operate to relieve the Board of Directors, or any member thereof, or any responsibility imposed upon it or him by law. ARTICLE V. NOTICE 5.01. Method. Whenever by statute, the Articles of Incorporation, these By-Laws, or otherwise, notice is required to be given to a Director, Committee Member, or Security Holder, 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: PAGE 9 (A) in writing, by mail, postage prepaid, addressed to the Director, Committee Member, or Security Holder 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 thus deposited in the United Stated mails. 5.02. Waiver. Whenever, by statute, the Articles of Incorporation or these By-Laws, notice is required to be given to a Security Holder, Committee Member, or Director, a Waiver to such Notice, whether before or after the time stated in such notice, shall be equivalent to the giving of such notice. Attendance at a meeting shall constitute a Waiver of Notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened. ARTICLE VI. OFFICERS AND AGENTS 6.01. Number, Qualifications; Elections; Term. (A) The Corporation shall have a President, Vice-President and Secretary and such other Officers and agents as the Board of Directors may deem necessary. (B) No Officer or Agent need be a Shareholder, a Director or a resident of the State of Incorporation. (C) Officers named by By-Law 6.01(A)(l) 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 by By-Law 6.01(A)(2) may be elected by the Board at any meeting. (D) 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 Shareholders. He shall serve until the end of his term or, if earlier, his death, resignation, or removal. PAGE 10 (E) Any two or more offices 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 interest of the Corporation will be served thereby. Such removal shall be without prejudice to the contract right, 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 filled by the Board of Directors. 6.04. Authority. Officers and agents shall have such authority and perform such duties in the management by 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 Officer and Agents shall be fixed from time-to-time by the Board of Directors. 6.06. President. The President shall be the Chief Executive officer of the Corporation; he shall preside at all meetings of the Shareholders 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. 6.07. Vice-President. The Vice-Presidents, in 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 exercise the powers of the President. They 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 from time-to-time delegate. 6.08. Secretary. (A) The Secretary shall attend all meetings of the Board of Directors and all meetings of the Shareholders and record all votes, actions and the minutes of all proceedings in a book to be kept for that purpose and shall perform like duties for Executive and other Committees when required. PAGE 11 (B) He shall give, or cause to be given, notice of all meetings of the Shareholders 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 of the Executive Committee, affix it to any instrument requiring it. When so affixed, it shall be attested by his signature or by the signature of the Treasurer or an Assistant Secretary. (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. 6.09. Assistant Secretary. The Assistant Secretary 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. 6.10. Treasurer. (A) The Treasurer shall have the custody of the Corporate funds and securities, shall keep full and accurate accounts of receipts and disbursement of the Corporation, and shall deposit all funds and other valuables in the name and to the credit of the Corporation in depositories designated by the Board of Directors. (B) He shall disburse the funds of the Corporation as ordered by the Board of Directors, and prepare financial statements as they direct. (C) If required by the Board of Directors, he 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 performances 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 PAGE 12 possession or under his control belonging to the Corporation. (D) 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 Treasurer. The Assistant Treasurer, 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 from time-to-time prescribe or the President may from time-to-time delegate. 6.12. Combined Offices. If by the election and appointment of the Board of Directors, two or more offices are combined and delegated to the same person, that said Officer shall perform such duties as prescribed by these ByLaws for each office that he may hold and shall remain responsible for the duties of each office which he thereby holds. ARTICLE VII. CERTIFICATE AND SHAREHOLDERS 7.01. Certificates. Certificates in the form determined by the Board of Directors shall be delivered representing all shares to which Shareholders 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 its face 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. It shall be signed by the President and Secretary 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. If a certificate is registered by a registrar (either of which is other than the Corporation or an employee of the Corporation), the signature of any Officer may be facsimile. 7.02. Issuance. Shares (both treasury and authorized, but unissued) may be issued for such consideration (not less than par value) and to such persons as the Board of Directors may determine from time-to-time. Shares may not be issued until the full amount of the consideration, fixed as provided by law, has been paid. PAGE 13 7.03 Payment for Shares. (A) 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. (B) 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. (C) Effect. When consideration, fixed as provided by law, has been paid, the shares shall be deemed to have been issued and shall be considered fully paid and nonassessable. (D) 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. Subscriptions. Unless otherwise provided in a subscription agreement, subscriptions for shares, whether made before or after organization of a Corporation, shall be paid in full at such time or in such installments and at such time as shall be determined by the Board of Directors. Any call made by the Board of Directors for payment of subscriptions shall be uniform as to all shares to the same series. 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 Shareholder 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 for other distributions declared thereon. 7.06. Lost, Stolen or Destroyed Certificates. The Corporation shall issue a new certificate in place of any certificates for shares previously issued if the registered owner of the certificate: (A) Claim. Makes proof in affidavit form that it has been lost, destroyed, or wrongfully taken, and PAGE 14 (B) Timely Request. Request 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) Guarantee Effectiveness of Signature. The signature of such person has been guaranteed by a national banking association or a member of the New York Stock Exchange, and reasonable assurance is given that such endorsements 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. PAGE 15 7.08. Registered Owner. Prior to due presentation for registration of transfer of a certificate for shares, the Corporation may treat the registered owner as the person exclusively entitled to vote, to receive notices and otherwise to all rights and powers of a Shareholder. ARTICLE VIII. MISCELLANEOUS PROVISIONS 8.01. Dividends and Reserves. (A) Declaration in 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, or in shares of the Corporation. The declaration of 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 Shareholders entitled to receive payment of any dividend, the record date to be not more than fifty (50) 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 (50) days prior to 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 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 Board of Directors may modify or abolish any such reserve in the manner in which it was created. 8.02. Books and Records. The Corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of its Shareholders and Board of Directors, and shall keep at its registered office or principal place of business, or at the office of its transfer agent or PAGE 16 registrar, a record of its Shareholders, giving the names and addresses of all Shareholders and the number and class of shares held by each. 8.03. Annual Statement. The Board of Directors shall mail to each Shareholder of record, at least ten (10) days before each Annual Meeting, a full and clear statement of the business and condition of the Corporation, including a reasonable detailed Balance Sheet, Income Statement, Surplus Statement, and Statement of Changes in Financial Position, for the last year and for the prior fiscal year, all prepared in conformity with generally accepted accounting principals applied on a consistent basis. These said statements are to be certified by independent public accountants appointed by the Board of Directors or Shareholders. 8.04. Checks and Notes. Checks, and demands for money of the Corporation shall be signed by an officer of the Corporation or other persons designated from time-to-time by the Board of Directors. The Corporation shall not execute any note or incur any indebtedness without specific resolution passed by the Board of Directors upon meeting for such purpose, and shall be signed by the Officer so designated by the Board of Directors in such resolution. 8.05. Fiscal Year. The fiscal year or the Corporation shall be set by the Board of Directors by resolution. 8.06. Seal. The Corporation (of which there may be one or more exemplers) 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. 8.07. Indemnification. The Corporation shall indemnify the following: (A) Persons. The Corporation shall indemnify, to the extent provided in Paragraph (B), (D), or (F): (1) Any person who is or was a Director, Officer, Agent or employee of the Corporation; and (2) Any person who serves or served at the Corporation's request as a Director, Officer, Agent, and employee, partner, or trustee of another corporation or of a partnership, joint venture, trust or other enterprise. (B) Extent---Derivative Suits. In case of a suit by or in the right of the Corporation against the person named in Paragraph (A) by reason of his holding a position named in (A) (2), the PAGE 17 Corporation shall indemnify him if he satisfies the standards in Paragraph (C), for expenses (including attorneys' fees but excluding amounts paid in settlement) actually and reasonably incurred by him in connection with the defense or the settlement of the suit. (C) Standard---Derivative Suits. In case of a suit by or in the right of the Corporation, a person named in Paragraph (A) shall be indemnified only if: (1) He is successful on the merits or otherwise; or (2) 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, he is fairly and reasonably entitled to indemnify for such expenses as the courts shall deem proper. (D) Extent-Nonderivative Suits. In case of a suit, action or proceeding, (whether civil, criminal, administrative or investigative), other together hereafter referred to as a non- derivative suit, against a person named in Paragraph (A), the Corporation shall indemnify him if he satisfies the standard in Paragraph (E), for amounts actually and reasonably incurred by him in connection with the defense or settlement of the non-derivative suit as: (1) Expenses (including attorneys' fees), (2) Amounts paid in settlement, (3) Judgments, and (4) Fines. PAGE 18 (E) Standard-Nonderivative Suits. In case of a non-derivative suit, a person named in Paragraph (A) shall be indemnified only if: (1) He is successful on the merits or otherwise, or (2) He acted in good faith in the transaction which is the subject of the non-derivative suit, and in a manner he 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 had no reason to believe his conduct was unlawful. The termination of a non-derivative suit by judgement, order, settlement, conviction or upon a plea of nolo contendre or its equivalent shall not, of itself, create a presumption that the person failed to satisfy the standard of this Paragraph (E)(2). (F) Determination That Standard Has Been Met. A determination that the standard of Paragraph (C) or (E) has been satisfied may be made by a court. Or, except as stated in Paragraph (C) (2) [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 action, suit, or proceeding, or (2) Independent legal counsel (appointed by a majority of the Directors of the Corporation, whether or not a quorum, or elected by the Shareholders of the Corporation) in a written opinion, or (3) The Shareholders of the Corporation. (G) Proration. Anyone making a determination under Paragraph (F) 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. (H) Advance Payment. The Corporation may pay in advance any expenses (including attorneys' fees) which may be subject to the indemnification under Paragraphs (A) - (G) if: PAGE 19 (1) The Board of Directors authorizes the specific payment, and (2) The person receiving the payment undertakes in writing to repay unless it is ultimately determined that he is entitled to indemnification by the Corporation under Paragraphs (A) - (G). (I) Nonexclusive. The indemnification provided by Paragraphs (A) - (G) shall not be exclusive of any other rights to which a person may be entitled by law, by-law, agreement, vote of Shareholders or disinterested Directors, or otherwise. (J) Continuation. The indemnification provided by Paragraphs (A) - (H) shall continue as to a person who has ceased to hold a position named in Paragraph (A) and shall inure to his heirs, executors and administrators. (K) Reports. Indemnification payments, advance payments, and insurance purchases made under Paragraphs (A) - (J) shall be reported in writing to the Shareholders of the Corporation with the next notice of Annual Meeting, or within six (6) months, whichever is sooner. 8.08. Resignation. A Director, Committee Member, Officer, or agent may resign by giving written notice to the President or the Secretary. The resignation shall take effect at the time specified in it or immediately, if no time is specified. Unless it is specified otherwise, a resignation takes effect without being accepted. 8.09. Amendment of By-Laws. (A) These By-Laws may be altered, amended, or repealed at any meeting of the Board of Directors which a quorum is present, by the majority vote of the Directors present at such meeting, provided notice of the proposed alteration, amendment, or repeal is contained in the Notice of the Meeting. (B) These By-Laws may also be altered, amended or repealed at any meeting of the Shareholders which a quorum is present or represented, by a two thirds (2/3) vote of the holders of the shares present or represented at the meeting and entitled to vote thereat, provided notice of the proposed alteration, amendment, or PAGE 20 repeal is contained in the Notice of the Meeting. 8.10. 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 reasonable and possible: (A) The remainder of these By-Laws shall be considered valid and operative, and (B) Effect shall be given to the intent manifested by the portion held invalid or inoperative. 8.11. 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. 8.12. Relation to Articles of Incorporation. The By-Laws are subject to, and governed by, the Articles of Incorporation. CERTIFICATE OF ORIGINAL BY-LAWS These By-Laws of BSQUARE, INC. consisting of twenty one (21) pages, is one and the same document as that presented to, considered, and adopted by the Board of Directors at their First Meeting of the Corporation on the 8th of October, 1993. /s/ Daniel L. Bechtel ---------------------------------------- DANIEL L. BECHTEL President (Seal) l:2:l/sub:rm PAGE 21 EX-3.37 35 file034.txt CERTIFICATE OF INCORPORATION AND AMENDMENTS CERTIFICATE OF INCORPORATION OF BF ACQUISITION CORP. --------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is BF Acquisition Corp. SECOND: The address of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is 2 otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on March 2, 2000. /s/ Robert L. Lawrence --------------------------- Robert L. Lawrence Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF BF ACQUISITION CORP. -------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is BF Acquisition Corp. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Break-Free Armor Corp." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. Dated: March 22, 2000. BF ACQUISITION CORP. By: /s/ Nicholas B. Winiewicz ---------------------------- Nicholas B. Winiewicz President EX-3.38 36 file035.txt BYLAWS OF BREAK FREE ARMOR CORP. BYLAWS OF BREAK-FREE ARMOR CORP. A DELAWARE CORPORATION ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled 2 to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least one and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alterative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article HI. Any number of offices may be held by the same person. SECTION 2. Election. Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. 8 SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. 9 SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 10 SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, a waiver thereof 11 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, maybe 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 capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. 12 SECTION 9. Disbursements. 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. ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.39 37 file036.txt CERTIFICATE OF INCORPORATION AND AMENDMENTS CERTIFICATE OF INCORPORATION OF BF ACQUISITION CO. ARTICLE ONE The name of the corporation is BF Acquisition Co. ARTICLE TWO The address of the corporation's registered office in the State of Delaware is 229 South State Street, in the City of Dover, County of Kent 19901. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc. ARTICLE THREE The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE FOUR The total number of shares of stock which the corporation has authority to issue is 1,000 shares of Common Stock, with a par value of $.01 per share. ARTICLE FIVE The name and mailing address of the sole incorporator are as follows: NAME MAILING ADDRESS ---- --------------- Gary R. Wendorf 200 East Randolph Drive 56th Floor Chicago, Illinois 60601 ARTICLE SIX The corporation is to have perpetual existence. ARTICLE SEVEN In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the by-laws of the corporation. ARTICLE EIGHT Meetings of stockholders may be held within or without the State of Delaware, as the by-laws of the corporation may provide. The books of the corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. Election of directors need not be by written ballot unless the by-laws of the corporation so provide. ARTICLE NINE To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of this corporation shall not be liable to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification. ARTICLE TEN Unless this Certificate of Incorporation is amended or repealed with respect to this ARTICLE TEN or unless the by-laws of the corporation designate otherwise, the corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware. -2- ARTICLE ELEVEN The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation. * * * * * -3- I, THE UNDERSIGNED, being the sole incorporator herein-before named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, under penalties of perjury do make this certificate, hereby declaring and certifying that this is my act and deed and the facts stated herein are true, and accordingly have hereunto set my hand on the 16th day of August, 1989. /s/ Gary R. Wendorf ---------------------------------------- Gary R. Wendorf, Sole Incorporator -4- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF BF ACQUISITION CO. * * * * * Adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware * * * * * Ronald M. Bass and Dwight B. Woodruff, being the Vice President and Assistant Secretary, respectively, of BF Acquisition Co., a corporation organized and existing under and by virtue of the laws of the State of Delaware (the "Corporation"), do hereby certify as follows: FIRST: The Certificate of Incorporation of the Corporation (the "Certificate of Incorporation") is hereby amended by deleting ARTICLE ONE in its entirety and substituting in lieu thereof a new ARTICLE ONE as follows: ARTICLE ONE The name of the corporation is Break-Free Inc. SECOND: The Board of Directors of the Corporation approved the foregoing amendment pursuant to the provisions of Sections 141(f) and 242 of the General Corporation Law of the State of Delaware and directed that the amendment be submitted to the sole stockholder of the Corporation for its consideration and approval. THIRD: The sole stockholder of the Corporation approved the foregoing amendment pursuant to the provisions of Sections 228(c) and 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, the undersigned, being the Vice President and Assistant Secretary hereinabove named, for the purpose of amending the Certificate of Incorporation of the Corporation pursuant to the General Corporation Law of the State of Delaware, under penalties of perjury do each hereby declare and certify that this is the act and deed of the Corporation and the facts stated herein are true, and accordingly have hereunto signed this Certificate of Amendment of Certificate of Incorporation this 31st day of August, 1989. BF ACQUISITION CO. /s/ Ronald M. Bass ---------------------------------------- Ronald M. Bass, Vice President ATTEST: /S/ Dwight B. Woodruff - -------------------------------- Dwight B. Woodruff, Assistant Secretary -2- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF BREAK-FREE INC. Break-Free Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify that: I. The amendment to the Corporation's Certificate of Incorporation set forth below was duly adopted in accordance with the provisions of Section 242 and has been consented to in writing by the sole stockholder in accordance with Section 228 of the General Corporation Law of the State of Delaware. II. Article FOUR of the Corporation's Certificate of Incorporation is amended to read in its entirety as follows: "The total number of shares of stock which this corporation is authorized to issue is 10,000 shares of Common Stock, with a par value of $.01 per share. Upon the amendment of this article to read as herein set forth, each outstanding share is split up and converted into 7.628 shares." IN WITNESS WHEREOF, Break-Free Inc. has caused this Certificate to be executed by Arne F. Haug, its authorized officer, on this 3rd day of September, 1997. By: /s/ Arne F. Haug ------------------------------------ Arne F. Haug Chairman of the Board CERTIFICATE OF CORRECTION FOR THE CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF BREAK-FREE INC. Break-Free Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify that: I. On December 1, 1997, Arne Haug, as the authorized agent of Break- Free Inc., executed an amendment to the Corporation's Certificate of Incorporation which was duly adopted in accordance with the provisions of Section 242 and was consented to in writing by the sole stockholder in accordance with Section 228 of the General Corporation Law of the State of Delaware. II. The Certificate of Amendment executed on December 1, 1997 contained a clerical error in the number of shares that each share was to be split up and converted into. The Certificate of Amendment states in relevant part: "Upon the amendment of this article to read as herein set forth, each outstanding share is split up and converted into 7.847 shares." III. The Certificate of Amendment shall be corrected by this Certificate of Correction pursuant to Section 103(f) of the General Corporation Law of the State of Delaware. The Certificate of Amendment shall be corrected to state: "Upon the amendment of this article to read as herein set forth, each outstanding share is split up and converted into 78.47 shares." IN WITNESS WHEREOF, Break-Free Inc. has caused this Certificate of Correction to be executed by Arne F. Haug, its authorized officer, on this 17th day of February, 1997. By: /s/ Arne F. Haug ------------------------------------ Arne F. Haug Chairman of the Board CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF BREAK-FREE INC. Break-Free Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify that: I. The amendment to the Corporation's Certificate of Incorporation set forth below was duly adopted in accordance with the provisions of Section 242 and has been consented to in writing by the sole stockholder in accordance with Section 228 of the General Corporation Law of the State of Delaware. II. Article FOUR of the Corporation's Certificate of Incorporation is amended to read in its entirety as follows: "The total number of shares of stock which this corporation is authorized to issue is 10,000 shares of Common Stock, with a par value of $.01 per share. Upon the amendment of this article to read as herein set forth, each outstanding share is split up and converted into 7.847 shares." IN WITNESS WHEREOF, Break-Free Inc. has caused this Certificate to be executed by Arne F. Haug, its authorized officer, on this 1st day of December, 1997. By: /s/ Arne F. Haug ------------------------------------ Arne F. Haug Chairman of the Board EX-3.40 38 file037.txt BYLAWS OF BREAK FREE, INC. BY-LAWS OF BF Acquisition Co. A Delaware corporation ARTICLE I OFFICES Section 1. Registered Office. The registered office of the corporation in the State of Delaware shall be located at 229 South State Street, City of Dover, Delaware, County of Kent. The name of the corporation's registered agent at such address shall be The Prentice-Hall Corporation System, Inc. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors. 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. Place and Time of Meetings. An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place of the annual meeting shall be determined by the chairman of the board or the president of the corporation; provided, that if the chairman of the board or the president do not act, the board of directors shall determine the date, time and place of such meeting. Section 2. Special Meetings. Special meetings of stockholders may be called for any purpose and may be held at such time and place, within or without the State of Delaware, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors, the chairman of the board, the president or the holders of shares entitled to cast not less than fifty percent of the votes at the meeting. Section 3. Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation. Section 4. Notice. Whenever stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date, time, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be given at the direction of the board of directors, the chairman of the board, the president or the secretary, and such notice will be deemed to have been given when personally delivered, two business days after being sent by overnight air courier, postage prepaid, or when receipt is acknowledged, if telecopied, to the stockholder at his, her or its address as the same appears on the records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends 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. Section 5. Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, 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 10 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 6. Quorum. The holders of a majority of the outstanding shares of capital stock, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place. -2- When a quorum is once present to commence a meeting of stockholders, it is not broken by the subsequent withdrawal of any stockholders or their proxies. Section 7. Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. 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 8. Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law 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. Section 9. Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the certificate of incorporation of the corporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder. Section 10. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him, her, or it by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all -3- proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular. Section 11. Action by Written Consent. 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 or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation's principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. 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. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof. ARTICLE III DIRECTORS Section 1. General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors. Section 2. Number, Election and Term of Office. The number of directors which shall constitute the first board shall be three (3). Thereafter, the number of directors shall be established from time to time by resolution of the board. The -4- directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided. Section 3. Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporation's certificate of incorporation, the provisions of this section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon written notice to the corporation. Section 4. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided. Section 5. Annual Meetings. The annual meeting of each newly elected board of directors shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of stockholders. Section 6. Other Meetings and Notice. Regular meetings, other than the annual meeting, 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 resolution of the board. Special meetings of the board of directors may be called by or at the request of the chairman of the board, the president or any director on at least 3 days notice to each director, either personally, by telephone, by mail or by telegraph. Section 7. Quorum, Required Vote and Adjournment. A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. 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 -5- time, without notice other than announcement at the meeting, until a quorum shall be present. Section 8. Committees. 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 the directors of the corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of directors 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. 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. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. Section 9. Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that member's alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member. Section 10. Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting. Section 11. Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends 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. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless -6- his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action. Section 12. Action by Written Consent. Unless otherwise restricted by the certificate of incorporation, 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. ARTICLE IV OFFICERS Section 1. Number. The officers of the corporation shall be elected by the board of directors and shall consist of a chairman of the board, a president, a general manager, one or more vice-presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable, except that the offices of general manager and secretary shall be filled as expeditiously as possible. Section 2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or 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 a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided. Section 3. Removal. Any officer or agent elected 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. Section 4. Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the -7- unexpired portion of the term by the board of directors then in office. Section 5. Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation. Section 6. Chairman of the Board. The chairman of the board shall be the chief executive officer of the corporation, and shall have the powers and perform the duties incident to that position. Subject to the powers of the board of directors, he or she shall be in the general and active charge of the entire business and affairs of the corporation, and shall be its chief policy making officer. He or she shall preside at all meetings of the board of directors and stockholders and shall have such other powers and perform such other duties as may be prescribed by the board of directors or provided in these by-laws. The chairman shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. Section 7. The President. The president shall subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall have such other powers and perform such other duties as may be prescribed by the chairman of the board or the board of directors or as may be provided in these by-laws. Section 8. General Manager. The general manager of the corporation, subject to the powers of the board of directors, shall have general and active management of the business of the corporation; and shall see that all orders and resolutions of the board of directors are carried into effect. The general manager shall have such other powers and perform such other duties as may be prescribed by the chairman of the board, the president or the board of directors or as may be provided in these by-laws. Section 7. Vice-presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors shall, in the absence or disability of the chairman of the board or the president act with all of the powers and be subject to all the restrictions of the chairman of the board or the president. The vice-presidents shall also perform such other duties and have such other powers -8- as the board of directors, the chairman of the board, the president or these by-laws may, from time to time, prescribe. Section 8. The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president's or vice president's supervision, the secretary shall give, or cause to be given, all notices required to be given by these by-laws or by law; shall have such powers and perform such duties as the board of directors, the chairman of the board, the president, the vice president or these by-laws may, from time to time, prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the chairman of the board, the president, the vice president, or secretary may, from time to time, prescribe. Section 9. The Treasurer and Assistant Treasurer. The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the chairman of the board, the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; shall have such powers and perform such duties as the board of directors, the chairman of the board or these by-laws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of treasurer and for the restoration to the corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the -9- control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the chairman of the board, the vice president or treasurer may, from time to time, prescribe. Section 10. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors. Section 11. Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer's place during such officer's absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select. ARTICLE V INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS Section 1. Nature of Indemnity. 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, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so 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 actually and reasonably incurred by such person in connection with such proceeding) and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 2 hereof, the corporation shall indemnify any -10- such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers. Section 2. Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation under Section 1 of this Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person's costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. 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, 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, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she 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 its 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. -11- Section 3. Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V 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 purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V. Section 5. Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding's final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate. Section 6. Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the board of directors. Section 7. Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing. Section 8. Merger or Consolidation. For purposes of this Article V, references to "the corporation" shall include, in -12- addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. ARTICLE VI CERTIFICATES OF STOCK Section 1. Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the chairman of the board, the president, the general manager or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such chairman of the board, president, general manager, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder's attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, -13- authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation. Section 2. Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously 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 give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate. Section 3. Fixing a Record Date for Stockholder Meetings. 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, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 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 4. Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the -14- resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action. Section 5. Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. Section 6. Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation 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. Section 7. Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such -15- 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 class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation. ARTICLE VII GENERAL PROVISIONS Section 1. Dividends. 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. 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 any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created. Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof. Section 3. Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. Section 4. Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, -16- including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute. Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. Section 6. Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation 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 7. Voting Securities Owned By Corporation. Voting securities in any other corporation held by the corporation shall be voted by the chairman of the board, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution. Section 8. Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation's stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person's interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business. Section 9. Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein. Section 10. Inconsistent Provisions. In the event that any provision of these by-laws is or becomes inconsistent with any provision of the certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these by-laws shall not be given any effect -17- to the extent of such inconsistency but shall otherwise be given full force and effect. ARTICLE VIII AMENDMENTS These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers. -18- EX-3.41 39 file038.txt CERTIFICATE OF INCORPORATION OF CASCO ARTICLES OF AGREEMENT THE STATE OF NEW HAMPSHIRE ARTICLES OF AGREEMENT OF CASCO INTERNATIONAL, INC. We, the undersigned, all of lawful age, do hereby associate ourselves together for the purpose of forming a corporation under the provisions of New Hampshire Revised Statutes Annotated, Chapter 294, as amended. ARTICLE I The name of this corporation shall be Casco International, Inc. ARTICLE II The purposes for which this corporation is established are: 1. To manufacture, design, buy, sell, and generally deal in police batons, clubs, handcuffs, police accessories and police equipment, and other security products of all makes, kinds, and descriptions. 2. To manufacture, buy, sell, and generally deal in any other products or articles of commerce, and to acquire the supply of materials used for making such products and other articles of commerce, and to generally deal in such matters. 3. To purchase, lease, and sell land and buildings, vehicles, and to generally do all acts necessary or desirable to further the aforementioned objects and purposes, and to exercise all general powers conferred by Chapter 294 of the New Hampshire Revised Statutes Annotated. ARTICLE III The principal place of business of the corporation shall be located at Route 12, Fitzwilliam, New Hampshire, but the corporation may carry on any portion of its business at other places within and outside New Hampshire. Any meeting of the stockholders of the corporation may be held either within or outside the State of New Hampshire, but if outside the State, the filing requirements of RSA 294:81 shall be satisfied. ARTICLE IV The capital stock of the corporation shall consist of three hundred (300) shares of common stock without par value, one hundred (100) shares of which will be issued to Paul D. Starrett in consideration for a capital contribution of Five Thousand Dollars ($5,000.00). ARTICLE V The first meeting of the incorporators shall be held at the offices of Tower, Bean & Crocker, P.A., at 138 Main Street, Jaffrey, New Hampshire, on September 23, 1981, at 11:00 a.m. NAME: ADDRESS: /s/ Paul D. Starrett - -------------------------------------- --------------------------------------- Paul D. Starrett Paradise Island Road, Rindge, NH /s/ Candice A. Starrett - -------------------------------------- --------------------------------------- Candice A. Starrett Paradise Island Road, Rindge, NH /s/ Patricia Gauthier - -------------------------------------- --------------------------------------- Patricia Gauthier Route 12, Troy, NH /s/ David M. Tower - -------------------------------------- --------------------------------------- David M. Tower Wellington Road, Rindge, NH -2- EX-3.42 40 file039.txt BYLAWS OF CASCO INTERNATIONAL, INC. BYLAWS OF CASCO INTERNATIONAL, INC. TABLE OF CONTENTS SECTION ARTICLE I. OFFICES Section 1.1 Business Office Section 1.2 Registered Office ARTICLE II. SHAREHOLDERS Section 2.1 Annual Shareholder Meeting Section 2.2 Special Shareholder Meetings Section 2.3 Place of Shareholder Meeting Section 2.4 Notice of Shareholder Meeting Section 2.5 Fixing of Record Date Section 2.6 Shareholder List Section 2.7 Shareholder Quorum and Voting Requirements Section 2.8 Increasing Either Quorum or Voting Requirements Section 2.9 Proxies Section 2.10 Voting of Shares Section 2.11 Corporation's Acceptance of Votes Section 2.12 Informal Action by Shareholders Section 2.13 Voting for Directors Section 2.14 Shareholder's Rights to Inspect Corporate Records Section 2.15 Financial Statements Shall be Furnished to the Shareholders Section 2.16 Dissenters' Rights ARTICLE III. BOARD OF DIRECTORS Section 3.1 General Powers Section 3.2 Number, Tenure and Qualifications of Directors Section 3.3 Regular Meetings of the Board of Directors Section 3.4 Special Meetings of the Board of Directors Section 3.5 Notice of, and Waiver of Notice for, Special Director Meetings Section 3.6 Director Quorum Section 3.7 Directors, Manner of Acting Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement for the Board of Directors Section 3.9 Director Action Without a Meeting Section 3.10 Removal of Directors Section 3.11 Board of Director Vacancies Section 3.12 Director Compensation Section 3.13 Director Committees ARTICLE IV. OFFICERS Section 4.1 Number of Officers Section 4.2 Appointment and Term of Office. Section 4.3 Removal of Officers Section 4.4 President Section 4.5 Vice Presidents Section 4.6 The Secretary Section 4.7 The Treasurer Section 4.8 Assistant Secretaries and Assistant Treasurers Section 4.9 Salaries ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES Section 5.1 Indemnification of Directors Section 5.2 Advance Expenses for Directors Section 5.3 Indemnification of Officers, Agents, and Employees Who are Not Directors ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 6.1 Certificates for Shares Section 6.2 Shares Without Certificates Section 6.3 Registration of the Transfer of Shares Section 6.4 Restrictions on Transfer Shares Permitted Section 6.5 Acquisition of Shares ARTICLE VII. DISTRIBUTIONS Section 7.1 Distributions ARTICLE VIII. CORPORATE SEAL Section 8.1 Corporate Seal ARTICLE IX. EMERGENCY BYLAWS Section 9.1 Emergency Bylaws ARTICLE X. AMENDMENTS Section 10.1 Amendments BYLAWS OF CASCO INTERNATIONAL, INC. ARTICLE I OFFICES Section 1.1 Business Office. The principal office of the corporation shall be located at any place either within or outside the State of New Hampshire as designated in the company's most current Annual Report filed with the New Hampshire Secretary of State. The corporation may have such other offices, either within or without the State of New Hampshire, as the Board of Directors may designate or as the business of the corporation may require from time to time. The corporation shall maintain at its principal office a copy of certain records, as specified in Section 2.14 of Article II. Section 1.2 Registered Office. The registered office of the corporation, as required by Section 5.01 of the New Hampshire Business Corporation Act, shall be located within New Hampshire and may be, but need not be, identical with the principal office (if located within New Hampshire). The address of the registered office may be changed from time to time. ARTICLE II SHAREHOLDERS Section 2.1 Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on the third Tuesday of December, in each year, beginning with the year 1993, at the hour of 11:00 o'clock in the forenoon, or at such other time on such other day within such month as shall be fixed by the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of New Hampshire, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for any annual meeting of the shareholders, or at any subsequent continuation after adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. Section 2.2 Special Shareholder Meetings. Special meetings of the shareholders, for any purpose or purposes, described in the meeting notice, may be called by the president, or by the Board of Directors or by the Secretary, and shall be called by the president at the request of the holders of not less than one-tenth of all outstanding votes of the corporation entitled to be cast on any issue at the meeting. Section 2.3 Place of Shareholder Meeting. The Board of Directors may designate any place within the county in New Hampshire where the company has its principal office as the place of meeting for any annual or special meeting of the shareholders, unless all the shareholders entitled to vote at the meeting agree by written consents (which may be in the form of waiver of notice or otherwise) to another location, which may be either within or without the State of New Hampshire. If no designation is made, the place of meeting shall be the principal office of the corporation in the State of New Hampshire. Section 2.4 Notice of Shareholder Meeting. (a) Required Notice. Written notice stating the place, day and hour of any annual or special shareholder meeting shall be delivered not less than ten nor more than 60 days before the date of the meeting, either personally or by mail, by or at the direction of the president, the Board of Directors, or other persons calling the meeting, to each shareholder of record, entitled to vote at such meeting and to any other shareholder entitled by the New Hampshire Business Corporation Act or the articles of incorporation to receive notice of the meeting. Notice shall be deemed to be effective at the earlier of: (1) When deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; (2) On the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; (3) When received; or (4) Five days after deposit in the United States mail, if mailed postpaid and correctly addressed to an address other than that shown in the corporation's current record of shareholders. (b) Adjourned Meeting. If any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. But if a new record date for the adjourned meeting is, or must be fixed (see Section 2.5 of Article II) then notice must be given pursuant to the requirements of paragraph (a) of this Section 2.4, to those persons who are shareholders as of the new record date. 2 (c) Waiver of Notice. The shareholder may waive notice of the meeting (or any notice required by the Act, articles of incorporation, or bylaws), by a writing signed by the shareholder entitled to the notice, which is delivered to the corporation (either before or after the date and time stated in the notice) for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting. (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose of purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called. Except as provided in this Section 2.4(d), or as provided in the corporation's articles, or otherwise in the New Hampshire Business Corporation Act, the notice of an annual shareholder meeting need not include a description of the purpose or purposes for which the meeting is called. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the articles of incorporation (including any restated articles requiring shareholder approval); (2) a plan of merger or share exchange; (3) the sale, lease, exchange or other disposition of all, or substantially all of the corporation's property; (4) the dissolution of the corporation; or (5) the removal of a director, the notice must so state and be accompanied by respectively a copy or summary of the: (1) articles of amendment; (2) plan of merger or share exchange; Xand (3) transaction for disposition of all the corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders are, or may be entitled to assert dissenters' rights, and must be accompanied by a copy of Subchapter 13 of the New Hampshire Business Corporation Act. If the corporation issues, or authorizes the issuance of shares for promissory notes or for promises to render services in the future, the corporation shall report in writing to all the shareholders the number of shares authorized or issued, and the consideration received with or before the notice of the next shareholder meeting. Likewise, if the corporation indemnifies or advances expenses to a director (as defined in New Hampshire Business Corporation Act 3 section 16.21), this shall be reported to all the shareholders with or before notice of the next shareholder's meeting. Section 2.5 Fixing of Record Date. For the purpose of determining shareholders of any voting group entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be more than 70 days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If no record date is so fixed by the Board for the determination of shareholders entitled to notice of, or to vote at a meeting of shareholders, or shareholders entitled to receive a share dividend or distribution, the record date for determination of such shareholders shall be at the close of business on: (a) With respect to an annual shareholder meeting or any special shareholder meeting called by the Board or any person specifically authorized by the Board or these bylaws to call a meeting, the day before the first notice is delivered to shareholders; (b) With respect to a special shareholder's meeting demanded by the shareholders, the date the first shareholder signs the demand; (c) With respect to the payment of a share dividend, the date the Board authorizes the share dividend; (d) With respect to actions taken in writing without a meeting (pursuant to Article II, Section 2.12), the date the first shareholder signs a consent; (e) And with respect to a distribution to shareholders, (other than one involving a repurchase or reacquisition of shares), the date the Board authorizes the distribution. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the Board of Directors fixes a new record date which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. 4 Section 2.6 Shareholder List. The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete record of the shareholders entitled to vote at each meeting of shareholders thereof, arranged in alphabetical order, with the address of and the number of shares held by each. The list must be arranged by voting group (if such exists, see Article II, Section 2.7) and within each voting group by class or series of shares. The shareholder list must be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting. The list shall be available at the corporation's principal office or at a place identified in the meeting notice in the city where the meeting is to be held. A shareholder, his agent, or attorney is entitled on written demand to inspect and, subject to the requirements of Section 2.14 of this Article II, to copy the list during regular business hours and at his expense, during the period it is available for inspection. The corporation shall maintain the shareholder list in written form or in another form capable of conversion into written form within a reasonable time. Section 2.7 Shareholder Quorum and Voting Requirements. If the articles of incorporation or the New Hampshire Business Corporation Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Unless the articles of incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or the New Hampshire Business Corporation Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter. If the articles of incorporation or the New Hampshire Business Corporation Act provide for voting by two or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. 5 If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the articles of incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or the New Hampshire Business Corporation Act require a greater number of affirmative votes. Section 2.8 Increasing Either Quorum or Voting Requirements. For purposes of this Section 2.8 a "supermajority" quorum is a requirement that more than a majority of the votes of the voting group be present to constitute a quorum; and a "supermajority" voting requirement is any requirement that requires the vote of more than a majority of the affirmative votes of a voting group at a meeting. The shareholders, but only if specifically authorized to do so by the articles of incorporation, may adopt, amend, or delete a bylaw which fixes a "supermajority" quorum or "supermajority" voting requirement. The adoption or amendment of a bylaw that adds, changes, or deletes a "supermajority" quorum or voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater. A bylaw that affixes a supermajority quorum or voting requirement for shareholders may not be adopted, amended, or repealed by the Board of Directors. Section 2.9 Proxies. At all meetings of shareholders, a shareholder may vote in person, or vote by proxy which is executed in writing by the shareholder or which is executed by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after 11 months from the date of its execution unless otherwise provided in the proxy. Section 2.10 Voting of Shares. Unless otherwise provided in the articles, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. Except as provided by specific court order, no shares held by another corporation, if a majority of the shares entitled to vote 6 for the election of directors of such other corporation are held by the corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting. Provided, however, the prior sentence shall not limit the power of the corporation to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. Section 2.11 Corporation's Acceptance of Votes. (a) If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a shareholder, the corporation if acting in good faith is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder. (b) If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the name of its shareholder, the corporation if acting in good faith is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder if: (1) the shareholder is an entity as defined in the New Hampshire Business Corporation Act and the name signed purports to be that of an officer or agent of the entity; (2) the name signed purports to be that of an administrator, executor, guardian, or conservator representing the shareholder and, if the corporation requests, evidence of fiduciary status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; (3) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the corporation requests, evidence of this status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; 7 (4) the name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the corporation requests, evidence acceptable to the corporation of the signatory's authority to sign for the shareholder has been presented with respect to the vote, consent, waiver, or proxy appointment; (5) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all the co-owners. (c) The corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the shareholder. (d) The corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the shareholder for the consequences of the acceptance or rejection. (e) Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise. Section 2.12 Informal Action by Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to non-voting shareholders, the corporation shall give the non-voting shareholders written notice of the proposed action at least ten days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. 8 A consent signed under this section has the effect of a meeting vote and may be described as such in any document. Section 2.13 Voting for Directors. Unless otherwise provided in the articles of incorporation, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Section 2.14 Shareholder's Rights to Inspect Corporate Records. (a) Minutes and Accounting Records. The corporation shall keep as permanent records minutes of all meetings of its shareholders and board of directors, a record of all actions taken by the shareholders or board of directors without a meeting, and a record of all actions taken by a committee of the Board of Directors on behalf of the corporation. The corporation shall maintain appropriate accounting records. (b) Absolute Inspection Rights of Records Required at Principal Office. If he gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy, a shareholder (or his agent or attorney) has the right to inspect and copy, during regular business hours any of the following records, all of which the corporation is required to keep at its principal office: (1) its articles or restated articles of incorporation and all amendments to them currently in effect; (2) its bylaws or restated bylaws and all amendments to them currently in effect; (3) resolutions adopted by its Board of Directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding; (4) the minutes of all shareholders' meetings, and records of all actions taken by shareholders without a meeting, for the past three years; (5) all written communications to shareholders generally within the past three years, including the financial statement furnished for the past three years to the shareholders; 9 (6) a list of the names and business addresses of its current directors and officers; and, (7) its most recent annual report delivered to the Secretary of State. (c) Conditional Inspection Right. In addition, if he gives the corporation a written demand made in good faith and for a proper purpose at least five business days before the date on which he wishes to inspect and copy, he describes with reasonable particularity his purpose and the records he desires to inspect, and the records are directly connected with this purpose, a shareholder of a corporation (or his agent or attorney) is entitled to inspect and copy, during regular business hours at a reasonable location specified by the corporation, any of the following records of the corporation: (1) excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors on behalf of the corporation, minutes of any meeting of the shareholders, and records of actions taken by the shareholders or Board of Directors without a meeting, to the extent not subject to inspection under paragraph (a) of this Section 2.14. (2) accounting records of the corporation; and (3) the record of shareholders (compiled no earlier than the date of the shareholder's demand). (d) Copy Costs. The right to copy records includes, if reasonable, the right to receive copies made by photographic, xerographic, or other means. The corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the shareholder. The charge may not exceed the estimated cost of production or reproduction of the records. (e) Shareholder Includes Beneficial Owner. For purposes of this Section 2.14, the term "shareholder" shall include a beneficial owner whose shares are held in a voting trust or by a nominee on his behalf. Section 2.15 Financial Statements Shall Be Furnished to the Shareholders. (a) The corporation shall furnish its shareholders annual financial statements, which may be consolidated or combined statements of the corporation and one or more of its subsidiaries, as appropriate, that include a 10 balance sheet as of the end of the fiscal year, an income statement for that year, and a statement of changes in shareholders' equity for the year unless that information appears elsewhere in the financial statements. If financial statements are prepared for the corporation on the basis of generally accepted accounting principles, the annual financial statements for the shareholders also must be prepared on that basis. (b) If the annual financial statements are reported upon by a public accountant, his report must accompany them. If not, the statements must be accompanied by a statement of the president or the person responsible for the corporation's accounting records: (1) stating his reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and (2) describing any respects in which the statements were not prepared on a basis of accounting consistent with the statements prepared for the preceding year. (c) A corporation shall mail the annual financial statements to each shareholder within 120 days after the close of each fiscal year. Thereafter, on written request from a shareholder who was not mailed the statements, the corporation shall mail him the latest financial statements. Section 2.16 Dissenters' Rights. Each shareholder shall have the right to dissent from and obtain payment for his shares when so authorized by the New Hampshire Business Corporation Act, articles of incorporation, these bylaws, or in a resolution of the Board of Directors. ARTICLE III BOARD OF DIRECTORS Section 3.1 General Powers. Unless the articles of incorporation have dispensed with or limited the authority of the Board of Directors by describing who will perform some or all of the duties of a Board of Directors, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of the Board of Directors. 11 Section 3.2 Number, Tenure, and Qualifications of Directors. Unless otherwise provided in the articles of incorporation, the authorized number of directors shall be not less than one nor more than five. The current number of directors shall be within the limits specified above, and as determined (or as amended from time-to-time) by resolution adopted by either the shareholders or directors. Each director shall hold office until the next annual meeting of shareholders or until removed. However, if his term expires, he shall continue to serve until his successor shall have been elected and qualified, or until there is a decrease in the number of directors. Directors need not be residents of the State of New Hampshire or shareholders of the corporation unless so required by the articles of incorporation. Section 3.3 Regular Meetings of the Board of Directors. A regular meeting of the Board of Directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the time and place (which shall be within the county where the company's principal office is located) for the holding of additional regular meetings without other notice than such resolution. (If so permitted by Section 3.7, any such regular meeting may be held by telephone.) Section 3.4 Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be called by or at the request of the president or any one director. The person authorized to call special meetings of the Board of Directors may fix any place, only within the county where this corporation has its principal office as the place for holding any special meeting of the Board of Directors, or if permitted by Section 3.7, such meeting may be held by telephone. Section 3.5 Notice of, and Waiver of Notice for, Special Director Meetings. Unless the articles of incorporation provide for a longer or shorter period, notice of any special director meeting shall be given at least two days previously thereto either orally or in writing. If mailed, notice of any director meeting shall be deemed to be effective at the earlier of: (1) when received; (2) five days after deposited in the United States mail, addressed to the director's business office, with postage thereon prepaid; or (3) 12 the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the director. Any director may waive notice of any meeting. Except as provided Xin the next sentence, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business and at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting, and does not thereafter vote for or assent to action taken at the meeting. Unless required by the articles of incorporation, neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 3.6 Director Quorum. If Section 3.2 establishes a fixed board size, a majority of the number of directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the articles require a greater number. If Section 3.2 permits a variable-range size board (a board size set by resolution within a given range), a majority of the number of directors prescribed by resolution, (or if no number is prescribed the number in office immediately before the meeting begins) shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the articles require a greater number. Any amendment to this quorum requirement is subject to the provisions of Section 3.8 of this Article III. Section 3.7 Directors, Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present when the vote is taken shall be the act of the Board of Directors unless the articles of incorporation require a greater percentage. Any amendment which changes the number of directors needed to take action, is subject to the provisions of Section 3.8. Unless the articles of incorporation provide otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director 13 participating in a meeting by this means is deemed to be present in person at the meeting. A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) he objects at the beginning of the meeting (or promptly upon his arrival) to holding it or transacting business at the meeting; or (2) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement for the Board of Directors. For purposes of this Section 3.8, a "supermajority" quorum is a requirement that more than a majority of the directors in office constitute a quorum; and a "supermajority" voting requirement is any requirement that requires the vote of more than a majority of those directors present at a meeting at which a quorum is present to be the act of the directors. A bylaw that fixes a supermajority quorum or supermajority voting requirement may be amended or repealed: (1) if originally adopted by the shareholders, only by the shareholders (unless otherwise provided by the shareholders); (2) if originally adopted by the Board of Directors, either by the shareholders or by the Board of Directors. A bylaw adopted or amended by the shareholders that fixes a supermajority quorum or supermajority voting requirement for the Board of Directors may provide that it may be amended or repealed only by a specified vote of either the shareholders or the Board of Directors. Subject to the provisions of the preceding paragraph, action by the Board of Directors to adopt, amend, or repeal a bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater. 14 Section 3.9 Director Action Without a Meeting. Unless the articles of incorporation provide otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if all the directors take the action, each one signs a written consent describing the action taken, and the consents are filed with the records of the corporation. Action taken by consents is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be described as such in any document. Section 3.10 Removal of Directors. The shareholders may remove one or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal. The removal may be with or without cause unless the articles provide that directors may only be removed with cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. Section 3.11 Board of Director Vacancies. Unless the articles of incorporation provide otherwise, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, the shareholders may fill the vacancy. During such time that the shareholders fail or are unable to fill such vacancies then and until the shareholders act: (1) the Board of Directors may fill the vacancy; or (2) if the directors remaining in office constitute fewer than a quorum of the Board, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs. 15 The term of a director elected to fill a vacancy expires at the next shareholders' meeting at which directors are elected. However, if his term expires, he shall continue to serve until his successor is elected and qualified or until there is a decrease in the number of directors. Section 3.12 Director Compensation. Unless otherwise provided in the articles, by resolution of the Board of Directors, each director may be paid his expenses, if any, of attendance at each meeting of the Board of Directors, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or both. No such payment shall preclude any director from serving the corporation in any capacity or receiving compensation therefor. Section 3.13 Director Committees. (a) Creation of Committees. Unless the articles of incorporation provide otherwise, the Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee must have two or more members, who serve at the pleasure of the Board of Directors. (b) Selection of Members. The creation of a committee and appointment of members to it must be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the articles of incorporation to take such action, (or if not specified in the articles the numbers required by Section 3.7 of this Article III to take action). (c) Required Procedures. Sections 3.4, 3.5, 3.6, 3.7, 3.8, and 3.9 of this Article III, which govern meetings, action without meetings, notice and waiver of notice, quorum and voting requirements of the Board of Directors, apply to committees and their members. (d) Authority. Unless limited by the articles of incorporation, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee. Provided, however, a committee may not: (1) authorize distributions; (2) approve or propose to shareholders action that the New Hampshire Business Corporation Act requires be approved by shareholders; 16 (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the articles of incorporation pursuant to the authority of directors, to do so granted by Section 10.02 of the New Hampshire Business Corporation Act, (5) adopt, amend, or repeal bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; or (8) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except that the Board of Directors may authorize a committee (or a senior executive officer of the corporation) to do so within limits specifically prescribed by the Board of Directors. ARTICLE IV OFFICERS Section 4.1 Number of Officers. The officers of the corporation shall be a president, a secretary, and a treasurer, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any vice presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one or more officers or assistant officers. The same individual may simultaneously hold more than one office in the corporation. Section 4.2 Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. (The designation of a specified term grants to the officer no contract rights, and the Board can remove the officer at any time prior to the termination of such term.) If no term is specified, they shall hold office until they resign, die, or until they are removed in the manner provided in Section 4.3 of this Article IV. 17 Section 4.3 Removal of Officers. Any officer or agent may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of itself create contract rights. Section 4.4 President. The president shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and of the Board of Directors. The president may sign, with the secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time. Section 4.5 Vice Presidents. If appointed, in the absence of the president or in the event of his death, 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 at the time of their election, or in the absence of any designation, then in the order of their appointment) 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. (If there is no vice president, then the treasurer shall perform such duties of the president.) Any vice president may sign, with the secretary or an assistant secretary, certificates for shares of the corporation the issuance of which have been authorized by resolution of the Board of Directors; 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. Section 4.6 The Secretary. The secretary shall: 18 (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation and if there is a seal of the corporation, see that it is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the post office address of each shareholder which shall be furnished to the secretary by such shareholder; (f) sign with the president, or vice president, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (g) have general charge of the stock transfer books of the corporation; and (h) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the president or by the Board of Directors. Section 4.7 The Treasurer. The treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositaries as shall be selected by the Board of Directors; and (c) in general perform all of the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him by the president or by the Board of Directors. If required by the Board of Directors, the treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 19 Section 4.8 Assistant Secretaries and Assistant Treasurers. The assistant secretaries, when authorized by the Board of Directors, may sign with the president or a vice president certificates for shares of the corporation the issuance of which shall have been authorized by a resolution of the Board of Directors. 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. The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or the treasurer, respectively, or by the president or the Board of Directors. Section 4.9 Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES Section 5.1 Indemnification of Directors. Unless otherwise provided in the articles, the corporation shall indemnify any individual made a party to a proceeding because he is or was a director of the corporation, against liability incurred in the proceeding, but only if such indemnification is both (i) determined permissible and (ii) authorized, as defined in subsection (a) of this Section 5.1. (Such indemnification is further subject to the limitation specified in subsection (c).) (a) Determination and Authorization. The corporation shall not indemnify a director under this Section 5.1 of Article V unless: (1) Determination. A determination has been made in accordance with the procedures set forth in Section 8.55(b) of the New Hampshire Business Corporation Act that the director met the standard of conduct set forth in subsection (b) below, and (2) Authorization. Payment has been authorized in accordance with the procedures set forth in Section 8.55(c) of the New Hampshire Business Corporation Act based on a conclusion that the expenses are reasonable, the corporation has the financial ability to make the payment, and the financial resources of the corporation should be devoted to 20 this use rather than some other use by the corporation. (b) Standard of Conduct. The individual shall demonstrate that: (1) he conducted himself in good faith; and (2) he reasonably believed: (i) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests; (ii) in all other cases, that his conduct was not opposed to its best interest; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. The corporation shall not indemnify a director under this Section 5.1, Article V: (1) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or (2) in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. (c) Indemnification in Derivative Actions Limited. Indemnification permitted under this Section 5.1 of Article V in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding. Section 5.2 Advance Expenses for Directors. If a determination is made, following the procedures of Section 8.55(b) of the New Hampshire Business Corporation Act that the director has met the following requirements; and if an authorization of payment is made, following the procedures and standards set forth in Section 8.55(c) of the New Hampshire Business Corporation Act, then unless otherwise provided in the articles of incorporation, the company shall pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding, if: 21 (1) the director furnishes the corporation a written affirmation of his good faith belief that he has met the standard of conduct described in Section 5.1 of this Article V; (2) the director furnishes the corporation a written undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet the standard of conduct (which undertaking must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment); and (3) a determination is made that the facts then known to those making the determination would not preclude indemnification under Section 5.1 of this Article V or Sections 8.50 through 8.58 of the New Hampshire Business Corporation Act. Section 5.3 Indemnification of Officers, Agents, and Employees Who Are Not Directors. Unless otherwise provided in the articles of incorporation, the Board of Directors may indemnify and advance expenses to any officer, employee, or agent of the corporation, who is not a director of the corporation, to any extent consistent with public policy, as determined by the general or specific action of the Board of Directors. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 6.1 Certificates for Shares. (a) Consent. Certificates representing shares of the corporation shall at minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of New Hampshire; the name of the person to whom issued; and the number and class of shares and the designation of the series, if any, the certificate represents; and be in such form as determined by the Board of Directors. Such certificates shall be signed (either manually or by facsimile) by the president or a vice president and by the secretary or an assistant secretary and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified. (b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable 22 to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) must be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish the shareholder this information on request in writing and without charge. (c) Shareholder List. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. (d) Transferring Shares. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed, or mutilated certificate a new one may be issued therefor upon such terms and indemnity to the corporation as the Board of Directors may prescribe. Section 6.2 Shares Without Certificates. (a) Issuing Shares Without Certificates. Unless the articles of incorporation provide otherwise, the Board of Directors may authorize the issue of some or all the shares of any or all of its classes or series without certificates. The authorization does not affect shares already represented by certificates until they are surrendered to the corporation. (b) Information Statement Required. Within a reasonable time after the issue or transfer of shares without certificates, the corporation shall send the shareholder a written statement containing at minimum: (1) the name of the issuing corporation and that it is organized under the law of this State; (2) the name of the person to whom issued; and (3) the number and class of shares and the designation of the series, if any, of the issued shares. If the corporation is authorized to issue different classes of shares or different series within a class, the written statement shall describe the designations, relative rights, preferences, and limitations applicable to each class and the variation in rights, preferences, and limitations determined for each series (and the 23 authority of the Board of Directors to determine variations for future series). Section 6.3 Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the person in whose name shares stand on the books of the corporation shall be deemed by the corporation to be the owner thereof for all purposes. Section 6.4 Restrictions on Transfer of Shares Permitted. The Board of Directors (or shareholders) may impose restrictions on the transfer or registration of transfer of shares (including any security convertible into, or carrying a right to subscribe for or acquire shares). A restriction does not affect shares issued before the restriction was adopted unless the holders of the shares are parties to the restriction agreement or voted in favor of the restriction. A restriction on the transfer or registration of transfer of shares may be authorized: (1) to maintain the corporation's status when it is dependent on the number or identity of its shareholders; (2) to preserve exemptions under federal or state securities law; (3) for any other reasonable purpose. A restriction on the transfer or registration of transfer of shares may: (1) obligate the shareholder first to offer the corporation or other persons (separately, consecutively, or simultaneously) an opportunity to acquire the restricted shares; (2) obligate the corporation or other persons (separately, consecutively, or simultaneously) to acquire the restricted shares; 24 (3) require the corporation, the holders or any class of its shares, or another person to approve the transfer of the restricted shares, if the requirement is not manifestly unreasonable; (4) prohibit the transfer of the restricted shares to designated persons or classes of persons, if the prohibition is not manifestly unreasonable. A restriction on the transfer or registration of transfer of shares is valid and enforceable against the holder or a transferee of the holder if the restriction is authorized by this section and its existence is noted conspicuously on the front or back of the certificate or is contained in the information statement required by Section 6.2 of this Article VI with regard to shares issued without certificates. Unless so noted, a restriction is not enforceable against a person without knowledge of the restriction. Section 6.5 Acquisition of Shares. The corporation may acquire its own shares and unless otherwise provided in the articles of incorporation, the shares so acquired constitute authorized but unissued shares. If the articles of incorporation prohibit the reissue of acquired shares, the number of authorized shares is reduced by the number of shares acquired, effective upon amendment of the articles of incorporation, which amendment shall be adopted by the shareholders or the Board of Directors without shareholder action. The articles of amendment must be delivered to the Secretary of State and must set forth: (1) the name of the corporation; (2) the reduction in the number of authorized shares, itemized by class and series; and (3) the total number of authorized shares, itemized by class and series, remaining after reduction of shares. ARTICLE VII DISTRIBUTIONS Section 7.1 Distributions. The Board of Directors may authorize, and the corporation may make, distributions (including dividends on its outstanding shares) in the manner and upon the terms and conditions provided by law and in the corporation's articles of incorporation. 25 ARTICLE VIII CORPORATE SEAL Section 8.1 Corporate Seal. The Board of Directors may provide a corporate seal which may be circular in form and have inscribed thereon any designation including the name of the corporation, New Hampshire as the state of incorporation, and the words "Corporate Seal." ARTICLE IX EMERGENCY BYLAWS Section 9.1 Emergency Bylaws. Unless the articles of incorporation provide otherwise, the following provisions of this Article IX, Section 9.1 "Emergency Bylaws" shall be effective during an emergency which is defined as when a quorum of the corporation's directors cannot be readily assembled because of some catastrophic event. During such emergency: (a) Notice of Board Meetings. Any one member of the Board of Directors or any one of the following officers: president, any vice president, secretary, or treasurer, may call a meeting of the Board of Directors. Notice of such meeting need be given only to those directors whom it is practicable to reach, and may be given in any practical manner, including by publication and radio. Such notice shall be given at least six hours prior to commencement of the meeting. (b) Temporary Directors and Quorum. One or more officers of the corporation present at the emergency board meeting, as is necessary to achieve a quorum, shall be considered to be directors for the meeting, and shall so serve in order of rank, and within the same rank, in order of seniority. In the event that less than a quorum (as determined by Article III, Section 3.6) of the directors are present (including any officers who are to serve as directors), those directors present (including any officers serving as directors) shall constitute a quorum. (c) Actions Permitted to Be Taken. The board as constituted in paragraph (b), and after notice as set forth in paragraph (a) may: (1) Officers' Powers. Prescribe emergency powers to any officer of the corporation; 26 (2) Delegation of Any Power. Delegate to any officer or director, any of the powers of the Board of Directors; (3) Lines of Succession. Designate lines of succession of officers and agents, in the event that any of them are unable to discharge their duties; (4) Relocate Principal Place of Business. Relocate the principal place of business, or designate successive or simultaneous principal places of business; (5) All Other Actions. Take any other action, convenient, helpful, or necessary to carry on the business of the corporation. ARTICLE X AMENDMENTS Section 10.1 Amendments. The corporation's Board of Directors may amend or repeal the corporation's bylaws unless: (1) the articles of incorporation or the New Hampshire Business Corporation Act reserve this power exclusively to the shareholders in whole or part; or (2) the shareholders in adopting, amending, or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw; or (3) the bylaw either establishes, amends, or deletes, a supermajority shareholder quorum or voting requirement (as defined in Section 2.8 of Article II). Any amendment which changes the voting or quorum requirement for the Board must comply with Article III, Section 3.8, and for the shareholders, must comply with Article II, Section 2.8. The corporation's shareholders may amend or repeal the corporation's bylaws even though the bylaws may also be amended or repealed by its Board of Directors. This version of the corporation's bylaws is dated December 21, 1993. 27 EX-3.43 41 file040.txt CERTIFICATE OF INCORPORATION AND AMENDMENTS ARTICLES OF INCORPORATION of CCEC ACQUISITION CORP. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: CCEC ACQUISITION CORP. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 401 West Baseline, Suite 204, Tempe, Arizona 85283 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the Stale of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be as contractor and subcontractor for seating products and components utilized in vehicles. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Tiffany & Hoffmann, P.A., 500 Dial Tower, 1850 North Central Avenue, Phoenix, Arizona 85004, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. -1- The initial Board of Directors shall consist of two persons, who shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address ---- --------------- Stanley P. Desjardins 10016 South 51st Street Phoenix, Arizona 85044 Donald Townsend 401 West Baseline Suite 204 Tempe, Arizona 85283 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address ---- --------------- Donald Townsend 401 West Baseline Suite 204 Tempe, Arizona 85283 Cora Yanacek 401 West Baseline Suite 204 Tempe, Arizona 85283 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. -2- IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 6th day of June, 1994. /s/ Donald W. Townsend ---------------------------------------- DONALD W. TOWNSEND /s/ Cora Yanacek ---------------------------------------- CORA YANACEK -3- STATE OF ARIZONA CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF COACH AND CAR EQUIPMENT CORPORATION Pursuant to Section 10-058 et seq., including Section 10-061 of the Arizona General Corporation Law, Coach and Car Equipment Corporation, an Arizona corporation, hereby amends its Articles of Incorporation as follows: FIRST, that the Articles of Incorporation of this corporation be amended to read as follows: "The name of the corporation is CCEC Capital Corp." SECOND, that this amendment was adopted by the Board of Directors and sole shareholder of Coach and Car Equipment Corporation pursuant to Sections 10-058 et seq. of the Arizona General corporation Law on September 30, 1999; THIRD, that the shares outstanding and entitled to vote on the amendment were 5,000 shares of common stock, and no other shares were entitled to vote as a class or series; FOURTH, that the number of shares voted for the amendment was 5,000, the number of shares voted against was 0 and the number of shares that abstained from voting was 0; and FIFTH, that the amendment does not provide for an exchange, reclassification, or cancellation of issued shares nor effect a change in the amount of stated capital of Coach and Car Equipment Corporation. ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF CCEC ACQUISITION CORP. Pursuant to Section 10-58 et seq. including Section 10-061 of the Arizona General Corporation Law CCEC ACQUISITION CORP., an Arizona corporation, hereby amends its Articles of Incorparation as follows: FIRST: Article One of the Articles of Incorporation is hereby amended to read as follows: "The name of the corporation is Coach and Car Equipment Corporation. SECOND: This amendment was adopted by the board of directors and sole shareholder of CCOC Acquisition Corp. pursuant to Sections 10-058 et seq. of the Arizona General Corporation Law on July 5, 1994. THIRD: The shares outstanding and entitled to vote on the amendment were 5,000 shares of Common Stock, and no other shares were entitled to vote as a class or series. FOURTH: The number of shares voted for the amendment was 5,000, the number of shares Voted against was 0 and the number of shares that abstained from voting was 0. FIFTH: The amendment does not provide for an exchange, reclassification or cancellation of shares nor effect a change in the amount of stated capital of CCEC Acquisition Corp. IN WITNESS WHEREOF, the undersigned officers hereby certify this 5th day of July 5, 1994 the foregoing amendment has been duly adopted in accordance with Sections 10-058 et seq. Arizona General Corporation Law. By: /s/ Donald W. Townsend ------------------------------------------------ Donald W. Townsend, Executive Vice President By: /s/ Cora Yanacek ------------------------------------------------ Cora Yanacek, Assistant Secretary -1- EX-3.44 42 file041.txt BYLAWS OF CCEC CAPITAL CORP. BYLAWS of CCEC ACQUISITION CORP. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of June of each year, commencing with the year 1995, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office, until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation -1- acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of -2- sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the -3- affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such -4- trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) -5- the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract of act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in -6- consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then, entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be -7- held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such -8- relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. -9- 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets end liabilities and the results of its operations. VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of -10- the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer, or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal -11- on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make if effective. IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. -12- X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. -13- XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. 12.06 Conduct of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. * * * * * -14- CERTIFICATION The undersigned Secretary of CCEC ACQUISITION CORP., an Arizona corporation, hereby certifies that the foregoing Bylaws of the Corporation were duly adopted pursuant to the Unanimous Written Consent of the Board of Directors in Lieu of Organizational Meeting dated June __, 1994. /s/ DONALD W. TOWNSEND ------------------------------- DONALD W. TOWNSEND -15- EX-3.45 43 file042.txt CERTIFICATE OF INCORPORATION OF CDR INTERNATIONAL CERTIFICATE OF INCORPORATION OF CDR INTERNATIONAL, INC. ---------- FIRST. The name of this corporation shall be: CDR INTERNATIONAL, INC. SECOND. Its registered office in the State of Delaware is to be located at 1013 Centre Road, in the City of Wilmington, County of New Castle and its registered agent at such address is CORPORATION SERVICE COMPANY. THIRD. The purpose or purposes of the corporation shall be: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of stock which this corporation is authorized to issue is: One Thousand (1,000) shares without par value. FIFTH. The name and address of the incorporator is as follows: Kathleen Crowley Corporation Service Company 1013 Centre Road Wilmington, DE 19805 SIXTH. The Board of Directors shall have the power to adopt, amend or repeal the by-laws. SEVENTH. No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law, (i) for breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. IN WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore named, has executed, signed and acknowledged this certificate of incorporation this twenty-third day of December, A.D., 1996. /s/ Kathleen Crowley ------------------------- Kathleen Crowley Incorporator EX-3.46 44 file043.txt BYLAWS OF CDR INTERNATIONAL, INC. CDR INTERNATIONAL, INC. BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in Boston, Massachusetts, 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 meetings of stockholders, commencing with the year 1998 shall be held on the fourth Friday in March if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 A.M., or at such other date and 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. 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. 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 of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount 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. 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 any special meeting of stockholders shall be limited to the purposes stated in the notice. -2- Section 8. 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, 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 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. 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. Section 10. 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, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. 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 -3- 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. The number of directors which shall constitute the whole board shall be not less than one. Thereafter, subject to the foregoing limitation, 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 and newly created directorships resulting from any increase in the authorized number of directors may be filled by 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. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. -4- Section 3. 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. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. 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 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 of the board may be called by the president on two days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any -5- 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. 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. 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. COMMITTEES OF DIRECTORS Section 11. 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 the directors of the corporation. 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. 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 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. -6- 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 provide, 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. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. 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. REMOVAL OF DIRECTORS Section 14. 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. -7- ARTICLE IV NOTICES Section 1. 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. 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. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. -8- Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. 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 directors, or in the absence of any designation, then in the order of their election) 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. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation -9- and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. -10- Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors 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. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the 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 in the corporation. Section 2. 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 were such officer, transfer agent or registrar at the date of issue. -11- LOST CERTIFICATES Section 3. 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 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. TRANSFER OF STOCK Section 4. 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. FIXING RECORD DATE Section 5. 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 -12- 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. REGISTERED STOCKHOLDERS Section 6. 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 GENERAL PROVISIONS DIVIDENDS Section 1. 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. Section 2. 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. ANNUAL STATEMENT Section 3. 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. -13- CHECKS Section 4. 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. FISCAL YEAR Section 5. The fiscal year of the corporation shall end on December 31 or as otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal 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. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the fullest extent permitted by the General Corporation Law of Delaware. Neither the amendment nor repeal of this Article VII, nor the adoption of any provisions of the Certificate of Incorporation inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article VII would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws -14- be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. -15- EX-3.47 45 file044.txt CERTIFICATE OF INCORPORATION CERTIFICATE OF INCORPORATION OF DEFENSE TECHNOLOGY CORPORATION OF AMERICA The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is: Defense Technology Corporation of America SECOND: The address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is One Thousand Five Hundred (1,500) shares, par value $.001 per share. All such shares are of one class and are shares of Common Stock. FIFTH: The name and the mailing address of the incorporator is as follows: NAME MAILING ADDRESS ---- --------------- Richard M. Rosier c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th Fl. New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation 2 shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on August 20, 1996. /s/ RICHARD M. ROSIER ---------------------------------------- RICHARD M. ROSIER, Incorporator 3 EX-3.48 46 file045.txt BYLAWS OF DEFENSE TECHNOLOGY CORP. OF AMERICA BYLAWS OF DEFENSE TECHNOLOGY CORPORATION OF AMERICA ARTICLE I Stockholders SECTION 1. Annual Meetings. Subject to change by resolution of the Board of Directors, the annual meeting of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held on a date fixed, from time to time, by the Board of Directors of the Corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. The meeting may be held at such time and such place within or without the State of Delaware as shall be fixed by the Board of Directors and stated in the notice of the meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the President, a majority of the Board of Directors or the Chairman of the Board or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation of the Corporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten nor more than sixty days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney hereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in Section 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least a majority of all the shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares voting at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of both the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Every proxy must be signed by the stockholder or by his attorney-in-fact, and shall be filed with the Inspectors of Election, if any, prior to being voted upon. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the Certificate of Incorporation and these Bylaws. In the election of directors, and for any other action, voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the 2 stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Addresses of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, or if any Inspector appointed be absent or refuses to act, or if his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. Each Inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspectors at such meeting with strict impartiality and according to the best of his ability. The Inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots, or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the Inspector or Inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by him or them and execute a certificate of any fact found by him or them. Except as otherwise required by subsection (e) of Section 231 of the General Corporation Law, the provisions of that Section shall not apply to the corporation. All proxies shall be filed with the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any meeting of stockholders, 3 or any action which may be taken at any 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 all of the outstanding voting stock of the Corporation. In addition, any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number Qualification and Term of Office. The initial number of directors shall consist of two (2) persons. Thereafter, the number of directors may be fixed from time to time by action of the Board of Directors within the maximum and minimum limits provided by the Certificate of Incorporation. Directors need not be stockholders. The directors shall be elected at the annual meeting of stockholders except as otherwise provided for filling vacancies. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. The number of directors may be increased or decreased by action of the stockholders or of the directors. SECTION 3. Chairman of the Board. The Chairman of the Board, if any, shall preside, if present, at all meetings of the stockholders and at all meetings of the Board 4 of Directors and shall perform such other duties and have such other powers as from time to time may be assigned by the Board of Directors or prescribed by these Bylaws. SECTION 4. Vice Chairman of the Board. The Vice Chairman of the Board, if any, shall, at the request of the Chairman of the Board or in his absence or disability, perform the duties of the Chairman of the Board and when so acting shall, have all the powers of, and be subject to all restrictions upon, the Chairman of the Board and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Chairman of the Board or prescribed by these Bylaws. SECTION 5. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided that such majority shall constitute at least one-half of the whole Board. The act of a majority of a quorum of the Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within ten days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 6. Place of Meetings; Etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 7. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at such times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 8. Special Meetings. Special meetings of the Board of Directors 5 may be called by the Chairman of the Board, the President, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopier, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a special meeting called in accordance with this Section 8, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 9. Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 10. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as secretary of the meeting. SECTION 11. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective SECTION 12. Removal of Directors. Except as otherwise provided by law, any director or the entire Board of Directors may be removed, with or without cause, by the affirmative vote of the holders of a majority of the shares then entitled to vote at an election of directors. SECTION 13. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 14. Compensation of Directors. Directors may receive such 6 reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 15. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every member of such committee at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee SECTION 16. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. SECTION 17. Interested Directors. No contract or transaction between the 7 Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or the committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall consist of a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive Vice President and one or more other Vice-Presidents. In addition, the Board may elect one or more Vice Presidents and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person, as the directors may determine. Except as may otherwise be provided in the resolutions of the Board of Directors choosing him, no officer other than the Chairman or Vice-Chairman of the Board, if any, need be a director. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. 8 SECTION 3. Subordinate Officers. The Board of Directors or the President may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these Bylaws provided or as the Board of Directors or the President may from time to time prescribe. The Board of Directors or the President may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular election or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice Presidents. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, 9 the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 10. Assistant Secretaries. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the Corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurers. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. 10 SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officers of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. ARTICLE IV Shares and Their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation shall be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Uncertificated Shares. Subject to any conditions imposed by the General Corporation Law, the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertificated shares. Within a reasonable time after the issuance or transfer of any uncertificated shares, the Corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law. 11 SECTION 3. Fractional Share Interests. The Corporation may, but shall not be required to, issue fractions of a share. If the Corporation does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the Corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the Corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose. SECTION 4. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney hereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 5. Lost, Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 12 SECTION 6. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 7. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If the stock transfer books are to be closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting in the case of a merger or consolidation, the books shall be closed at least twenty days before such meeting. SECTION 8. Beneficial Owners. 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 law. 13 ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdraw; therefrom SECTION 4. Registered Office. The registered office of the Corporation shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. 14 SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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 at the Board of Directors may from time to time designate. ARTICLE VI Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 15 EX-3.49 47 file046.txt ARTICLES OF INCORPORATION ARTICLES OF INCORPORATION OF HATCH IMPORTS, INC. ONE: The name of this corporation is: HATCH IMPORTS, INC TWO: The purpose for which this corporation is formed are: To engage primarily in the steel importing and steel brokerage business and related activities (b) To purchase, acquire, own, hold, lease either as lessor or lessee, improved and unimproved, apartment houses, hotels, boarding houses, business blocks, office buildings, manufacturing works and plants, dwelling houses and other buildings of any kind. To sell, exchange, mortgage, create or assume obligations either secured or not, deed in trust, improve, farm, develop, construct, maintain, equip, operate and generally deal in any and all lands, and any and all other property of any and every kind or description, real, personal and mixed, wheresoever situated, including water and water rights, to supervise and manage all classes of properties, income bearing or otherwise, for other persons, corporations and associations; to act as agent, broker, or attorney in fact, on a commission basis or otherwise, for any -1- other person, corporation or association; to negotiate sales, leases, mortgages, deeds of trust and other encumbrances or properties of other persons, corporations and associations, real, personal and mixed, wheresoever situated; and generally to maintain, conduct and carry on the business of real estate agent and broker. (d) To acquire, by purchase or otherwise, the good will, business, property rights, franchises and assets of every kind, with or without undertaking, either wholly or in part, the liabilities of any person, firm, association or corporation; and to acquire any property or business as a going concern or otherwise (i) by purchase of the assets thereof wholly or in part, (ii) by acquisition of the shares or any part thereof, or (iii) in any other manner, and to pay for the same in cash or in shares or bonds or other evidences of indebtedness of this corporation, or otherwise; to hold, maintain and operate, or in any manner dispose of, the whole or any part of the good will, business rights and property so acquired, and to conduct in any lawful manner the whole or any part of any business so acquired; and to exercise all the powers necessary or convenient in and about the management of such business (e) To manufacture, fabricate, assemble, to take, purchase, and otherwise acquire, own, hold, use, sell, assign, transfer, exchange, lease and otherwise dispose of, and to invest trade, deal in and deal with goods, wares and merchandise and -2- or to enhance the value of its property or business. (i) From time to time to apply for, purchase, acquire by assignment, transfer or otherwise, exercise, carry out and enjoy any benefit, right, privilege, prerogative or power conferred by, acquired under or granted by any statute, ordinancy, order, license, power, authority, franchise, commission, right or privilege which any government or authority or governmental or corporation or other public body may be empowered to enact, make or grant; to pay for, aid in, and contribute toward carrying the same into effect and to appropriate any of this corporation's shares, bonds and/or assets to defray the costs, charges and expenses thereof. (j) To subscribe or cause to be subscribed for and to take, purchase and otherwise acquire, own, hold, use, sell, assign, transfer, exchange, distribute and otherwise dispose of, the whole or any part of the shares of the capital stock, bonds, coupons, mortgages, deeds to trust, debentures securities, obligations, evidences of indebtedness, notes, good will, rights, assets and property of any and every kind, or any part thereof, of any other corporation or corporations, association or associations, firm or firms, or person or persons, together with shares, rights, units of interest in, or in respect of, any trust estate, now or hereafter existing, and whether created by the laws of the State of California or of any other state, territory, or country; and to operate, manage and control such -4- properties, or any of them, either in the name of such other corporation or corporations or in the name of this corporation, and while the owners of any of said shares of capital stock, to exercise all the rights, powers and privileges of ownership of every kind and description, including the right to vote thereon, with power to designate some persons or persons for that purpose from time to time, and to the same extent as natural persons might or could do. To promote or to aid in any manner, financially or otherwise, any person, firm, corporation or association of which any shares of stock, bonds, notes, debentures or other securities or evidences of indebtedness are held directly or indirectly by this corporation; and for this purpose to guarantee the contracts, dividends, shares, bonds, debentures, notes and other obligations of such other persons, firms, corporations or associations; and to do any other acts or things designed to protect, preserve, improve or enhance the value of indebtedness (l) To borrow and lend money, but nothing herein contained shall be construed as authorizing the business of banking, or as including the business purposes of a commercial bank, savings bank, or trust company. To issue bonds, notes, debentures or other obligations of this corporation form time to time for any of the objects or purposes of this corporation, and to secure the same by -5- mortgage, deed of trust, pledge or otherwise, or to issue the same unsecured; to purchase or otherwise acquire its own bonds, debentures or other evidences of its indebtedness or obligations; to purchase, hold, sell and transfer the shares of its own capital stock to the extent and in the manner provided by the laws of the State of California as the same are now in force or may be hereafter amended. To purchase, acquire, take, hold, own use and enjoy, and to sell, lease, transfer, pledge, mortgage, convey, grant, assign, or otherwise dispose of, and generally to invest, trade, deal in and with oil royalties, mineral rights of all kinds, mineral bearing lands and hydrocarbon products of all kinds, oil, gas and mineral leases, and all rights and interests therein, and in general products of the earth and deposits, both subsoil and surface, of every nature and description. To carry on any business whatsoever, either as principal or as a agent or both, or as a partnership, which this corporation may deem proper or convenient in connection with any of the foregoing purposes or otherwise, or which may be calculated directly or indirectly to promote the interests of this corporation or to enhance the value of its property or business; to conduct its business in this state, in other states, in the District of Columbia, in the territories and colonies of the United States, and in foreign countries. To engage in any one or -6- more other businesses or transactions which the board of directors of this corporation may from time to time authorize and approve, whether related or unrelated to the business described above or to any other business then or theretofore done by this corporation. (p) To have and to exercise all the powers conferred by the laws of California upon corporations formed under the laws pursuant to and under which this corporation is formed, as such laws are now in effect or may at any time hereafter, be amended. The foregoing statement of purposes shall be construed as a statement of both purposes and powers, and the purposes and powers stated in each clause shall, except where otherwise expressed, be in nowise limited or restricted by reference to or inference from the terms or provisions of any other clause, but shall be regarded as independent purposes and powers THREE: The principal office for the transaction of the business of this corporation shall be at 14622 Victory Boulevard, Van Nuys, California, located in the County of Los Angeles. FOUR: This corporation is authorized to issue only one class of shares of stock and the total number of shares which this corporation shall be authorized to issue shall be seven hundred fifty (750) shares; the aggregate par value thereof shall -7- be Seventy-Five Thousand ($75,000.00) Dollars and the par value of each of the said shares shall be One Hundred ($100.00) Dollars. FIVE: The number of directors of this corporation shall be three (3), and the names and addresses of the persons hereby appointed to act as the first directors of this corporation are as follows: Harry F. Hatch 14622 Victory Boulevard Van Nuys, California 91401 Laura D. Hatch 14622 Victory Boulevard Van Nuys, California 91401 Robert J. Hatch 14622 Victory Boulevard Van Nuys, California 91401 IN WITNESS WHEREOF, for the purpose of forming this corporation under the laws of the State of California, the undersigned, constituting the incorporators of this corporation, including the persons named hereinabove as the first directors of this corporation, have executed these Articles of Incorporation this 25th day of August, 1967. /s/ Harry F. Hatch ---------------------------- Harry F. Hatch /s/ Laura D. Hatch ---------------------------- Laura D. Hatch /s/ Robert J. Hatch ---------------------------- Robert J. Hatch -8- STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) On this 25th day of August, 1967, before me, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared HARRY F. HATCH, known to me to be the person whose name is subscribed to the foregoing Articles of Incorporation, and acknowledged to me that he executed the same. WITNESS my hand and official seal. /s/ Pauline M Warmoth ---------------------------------- Notary Public in and for said County and State PAULINE M. WARMOTH My Commission Expires July 6, 1970 (SEAL) [SEAL OMITTED] -9- CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION ROBERT J. HATCH and LAURA D. HATCH certify that: 1. They are the President and the Secretary, respectively, of HATCH IMPORTS, INC., a California corporation 2. Article Four of the Articles of Incorporation of this Corporation is amended to read as follows: FOUR. This corporation is authorized to issue only one class of shares of no par stock which shall be designated as "common" shares. The total number of common shares which this corporation shall be authorized to issue shall be seven hundred fifty (750) shares. 3. The foregoing amendement of Articles of Incorporation has been duly approved by the Board of Directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of Shareholders in accordance with Section 902 of the Corporation Code. The total number of outstanding shares of the corporation is 500. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than fifty percent (50%). We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. DATED: October 15, 1994 HATCH IMPORTS, INC. A California Corporation BY: /s/ Robert J. Hatch -------------------------- ROBERT J. HATCH, President AND BY: /s/ Laura D. Hatch -------------------------- LAURA D. HATCH, Secretary CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION ROBERT J. HATCH and WILLIAM E. HATCH certify that: 1. They are the President and the Secretary, respectively, of HATCH IMPORTS, INC., a California corporation. 2. Article Four of the Articles of Incorporation of this Corporation is amended to read as follows: FOUR. This corporation is authorized to issue only one class of shares of no par stock which shall be designated as "common" shares. The total number of common shares which this corporation shall be authorized to issue shall be two thousand five hundred (2500) shares. 3. The foregoing amendment of Articles of Incorporation has been duly approved by the Board of Directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of Shareholders in accordance with Section 902 of the Corporation Code. The total number of outstanding shares of the corporation is 500. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than fifty percent (50%). We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. DATED: September 30, 1998 By: /s/ Robert J. Hatch ------------------------- ROBERT J. HATCH, President AND BY: /s/ William E. Hatch ---------------------------- WILLIAM E. HATCH, Secretary [SEAL OMITTED] EX-3.50 48 file047.txt BYLAWS OF HATCH IMPORTS, INC. BY-LAWS OF HATCH IMPORTS, INC. ARTICLE I SHAREHOLDERS' MEETING. Section 1. Place of Meetings. All meetings of the shareholders shall be held at the office of the corporation in the State of California, as may be designated for that purpose from time to time by the Board of Directors. Section 2. Annual Meetings. The annual meeting of the shareholders shall be held on the 1st day of October in each year if not a legal holiday, and if a legal holiday, then on the next succeeding business day, at the hour of 10:00 o'clock a.m., at which time the shareholders shall elect by plurality of vote, a Board of Directors, consider reports of the affairs of the corporation, and transact such other business as may properly be brought before the meeting. Section 3. Special Meetings Special meetings of the shareholders, for any purpose or purposes whatsoever, may be called at any time by the President, or by the Board of Directors, or by any two or more members thereof, or by one or more shareholders holding not lose than one-fifth (1/5) of the voting power of the corporation. Section 4. Notice of Meetings. Notices of meetings, annual or special, shall be given in writing to shareholders entitled to vote by the Secretary or the Assistant Secretary, or if there be no such officer, or in the case of his neglect or refusal, by any director or shareholder. -1- Such notices shall be sent to the shareholder's address appearing on the books of the corporation, or supplied by him to the corporation for the purpose of notice, not less than seven days before such meeting. Notice of any meeting of shareholders shall specify the place, the day and the hour of meeting, and in case of special meeting, as provided by the Corporations Code of California the general nature of the business to be transacted. When a meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Save, as aforesaid, it shall not be necessary to give any notice of the adjournment or of the business to be transacted at an adjourned meeting other than by announcement at the meeting at which such adjournment is taken. Section 5. Consent to Shareholders' Meetings The transactions of any meeting of shareholders, however called and noticed, shall be valid as though had at a meeting duly held after regular call and notice if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, not present in person or by proxy, sign a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Any action which may be taken at a meeting of the shareholders, may be taken without a meeting if authorized by a writing signed by all of the holders of shares who would be entitled to vote at a meeting for such purpose, and filed with the Secretary of the corporation. Section 6. Quorum. The holders of a majority of the shares entitled to vote thereat, present in person, or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by law, by the Articles of Incorporation, or by these By-Laws. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote thereat, present in person, or by proxy, shall have power to adjourn the meeting from time to time, until the requisite amount of voting shares shall be present. At such adjourned meeting at which the requisite amount of voting shares shall -2- be represented, any business may transacted which might have been transacted at the meeting as originally notified. Section 7. Voting Rights; Cumulative Voting. Only persons in whose names shares entitled to vote stand on the stock records of the corporation on the day any meeting of shareholders, unless some other day be fixed by the Board of Directors for the determination of shareholders of record, then on such other day, shall be entitled to vote at such meeting. Every shareholder entitled to vote shall be entitled to one vote for each of said shares and shall have the right to cumulate his votes as provided in Section 2235, Corporations Code of California. Section 8. Proxies. Every shareholder entitled to vote, or to execute consents, may do so, either in person or by written proxy, executed in accordance with the provisions of Section 2225 of the Corporations Code of California and filed with the Secretary of the Corporation. ARTICLE II DIRECTORS; MANAGEMENT Section 1. Powers. Subject to the limitation of the Articles of Incorporation, of the By-Laws and of the Laws of the State of California as to action to be authorized or approved by shareholders, all corporate powers shall be exercised by or under authority of, and the business and affairs of this corporation shall be controlled by, a Board of Directors. Section 2. Number and Qualification. The authorized number of directors of the corporation shall be three (3) until changed by amendment to the Articles of Incorporation or by amendment to this Section 2, Article II of these By-Laws, adopted by the vote or written assent of the shareholders entitled to exercise the majority of the voting power of the corporation. -3- Section 3. Election and Tenure of Office. The directors shall be elected by ballot at the annual meeting of the shareholders, to serve for one year and until their successors are elected and have qualified. Their term of office shall begin immediately after election. Section 4. Vacancies. Vacancies in the Board Directors may be filled by a majority of the remaining directors, though less than a quorum, or by a sole reaming director, and each director so elected shall hold office until his successor is elected at an annul meeting of shareholders or at a special meeting called for that purpose. The shareholders may at any time elect a director to fill any vacancy not filled by the directors and may elect additional directors at the meeting at which an amendment of the By-Laws is voted authorizing an increase in the number of directors. A vacancy or vacancies shall be deemed to exist in case of the death, resignation or removal of any director, or if the shareholders shall increase the authorized number of directors but shall fail at the meeting at which such increase is authorized, or at an adjournment thereof, to elect the additional director so provided for, or in case the shareholders fail at any time to elect the full number of authorized directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board, or the shareholders, shall have power to elect a successor to take office when the resignation shall become effective. No reduction of the number of directors shall have the effect of removing any director prior to the expiration of his term of office. Section 5. Removal of Directors. The entire Board of Directors or any individual director may be removed from office as provided by Sections 807, 810 and 811 of the Corporations Code of the State of California. Section 6. Place of Meetings. Meetings of the Board of Directors shall be held at the office of the corporation in the State of California, as designated for that purpose, from time to time, by resolution of the Board of -4- Directors, or written consent of all of the Members of the Board. Any meeting shall be valid, wherever held, if held by the written consent all Members of the Board of Directors, given either before or after the meeting and filed with the Secretary of the corporation. Section 7. Organization of Meetings. The organization meetings of the Board of Directors shall be held immediately following the adjournment of the annual meetings of the shareholders. Section 8. Other regular Meetings. Regular meetings of the Board of Directors shall be held on October 1st and April 1st of each year at 9:30 a.m. If said day shall fall upon a holiday, such meetings shall be held the next succeeding business day thereafter. No notice need be given of such regular meetings. Section 9. Special Meetings - Notices. Special meetings of the Board of Directors for any purpose or purposes shall be called at any time by the President or if he is absent or unable or refuses to act, by any Vice-President or by any two directors. Written notice of the time and place of special meetings shall be delivered personally to the directors or sent to each director by letter or by telegram, charges prepaid, addressed to him at his address as it is shown upon the records of the corporation, or if it is not so shown on such records or is not readily ascertainable, at the place in which the meetings of the directors are regularly held. In case such notice is mailed or telegraphed, it shall be deposited in the United States mail or delivered to the telegraph company in the place in which the principal office of the corporation is located at least forty-eight (48) hours prior to the time of the holding of the meeting. In case such notice is delivered an above provided; it shall be so delivered at least twenty-four (24) hours prior to the time of the holding of the meeting. Such mailing, telegraphing or delivery as above provided shall be due, legal and personal notice to such director. Section 10. Waiver of Notice. When all the directors are present at any directors' meeting, however called or noticed, and sign a written consent thereto on the records of such meeting, or, if a majority of the directors are -5- present, and if those not present sign in writing a waiver of notice of such meeting, whether prior to or after the holding of such meeting, which said waiver shall be filed with the Secretary of the corporation, the transactions thereof are as valid as if had at a meeting regularly called and noticed. Section 11. Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. Section 12. Quorum. A majority of the number of directors as fixed by the Articles or By-Laws shall be necessary to constitute a quorum for the transaction of business, and the action of a majority of the Directors present at any meeting at which there is a quorum, when duly assembled, is valid as a corporate act; provided that a minority of the directors, in the absence of a quorum, may adjourn from time to time, but may not transact any business. Section 13. Consent of Board Obviating Necessity of Meeting. (Pursuant to California Corporations Code Section 814. 5) Notwithstanding anything to the contrary contained in these By-laws, any action required or permitted be taken by the board of directors under any provisions of Sections 100 - 6804 of the Corporations Code of California may be taken without a meeting, if all members of the board of directors shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such directors. ARTICLE II OFFICERS Section 1. Officers. The Officers shall be a President, one or more Vice Presidents, a Secretary and a Treasurer, which officers shall be elected by, and hold office at the pleasure of the Board of Directors. -6- Section 2. Election. After their election the directors shall meet and organize by electing a President from their own number, and one or more Vice-Presidents, a Secretary and a Treasurer, who may, but need not be, members of the Board of Directors. Any two or more of such offices except those of President and Secretary, may be held by the same person. Section 3. Compensation and Tenure of Office. The compensation and tenure of office of all of the officers of the corporation shall be fixed by the Board of Directors. Section 4. Removal and Resignation. Any officer may be removed, either with or without cause, by a majority of the directors at the time in office, at any regular or special meeting of the Board, or, except case of any officer chosen by the Board Directors, by any officer ups whom such power of removal may be conferred by the Board of Directors. Any officer may resign at any time by giving written notice to the Board of Directors or to the President, or to the Secretary of the corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 5. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or other cause shall be filled in the manner prescribed in the By-Laws for regular appointments to such office. Section 6. President. The President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and the Board of Directors. He shall be ex-officio a member of all the standing committees, including the executive committee, if any, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the By-Laws. -7- Section 7. Vice-presidents. The Vice Presidents shall, in the order designated by the Board of Directors, in the absence or disability of the President, perform the duties and exercise the powers of the President, and shall perform such other duties as the Board of Directors shall prescribe. Section 8. Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office or such other place as the Board of Directors may order, of all meetings of directors and shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at directors' meetings, the number of shares present or represented at shareholders' meetings and the proceedings thereof. The Secretary shall keep, or cause to be kept, at the principal office or at the office of the corporation's transfer agent a share register, or a duplicate share register, showing the names of the shareholders and their addresses; the number and classes of shares held by each; the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give, or cause to be given, notice of all the meetings of the shareholders and of the Board of Directors required by the By-Laws or by law to be given; he shall keep the seal of the corporation and affix said seal to all documents requiring a seal, and shall have such other powers and perform such other duties as may be prescribed, by the Board of Directors or the By-Laws. Section 9. Treasurer. The Treasurer shall receive and keep all the funds of the corporation, and pay them out only on the check of the corporation, signed in the manner authorized by the Board of Directors. Section 10. Assistants. Any Assistant Secretary or Assistant Treasurer, respectively, may exercise any of the powers of Secretary or Treasurer, respectively, as provided in these By-Taws or as directed by the Board of Directors, and shall perform such other duties as are imposed upon them by the By-Laws or the Board of Directors. -8- Section 11. Subordinate Officers. The Board of Directors may from time to time appoint such subordinate officers or agents as the business of the corporation may require, fix their tenure of office and allow them suitable compensation. ARTICLE IV EXECUTIVE AND OTHER COMMITTEES The Board of Directors may appoint an executive committee, and such other committees as may be necessary from time to time, consisting of such number of its members and with such powers as it may designate, consistent with the Articles of Incorporation and By-Laws and the General Corporation Laws of the State of California. Such committees hold office at the pleasure of the board. ARTICLE V CORPORATE RECORDS AND REPORTS - INSPECTION Section 1. Records. The corporation shall maintain adequate and correct accounts, books and records of its business and properties. All of such books, records and accounts shall be kept at its principal place of business in the State of California, as fixed by the Board of Directors from time to time. Section 2. Inspection of Books and Records. All books and records provided for in Sections 3003 - 3005 of the Corporations Code of California shall be open to inspection of the directors and shareholders from time to time and in the manner provided in said Section 3003 - 3005. Section 3. Certification and Inspection of By-Laws. The original or a copy of these By-Laws, as amended or otherwise altered to date, certified by the Secretary, shall be open -9- to inspection by the shareholders of the company, as provided in Section 502 of the Corporations Code of California. Section 4. Checks, Drafts, etc. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors. Section 5. Contracts, etc. How Executed. The Board of Directors, except as in the By-Laws otherwise provided, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation. Such authority may be general or confined to specific instances. Unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement, or pledge its credit, or to render it liable for any purpose or to any amount. Section 6. Annual Reports. The Board Directors shall cause annual reports to be made to the shareholders as provided by Sections 3006 - 3012 of the Corporations Code of California. The Board of Directors shall cause such annual reports to be sent to the shareholders not later than one hundred twenty (120) days after the close of the fiscal year. ARTICLE VI CERTIFICATES AND TRANSFER OF SHARES Section. 1. Certificates for Shares. Certificates for shares shall be of such form and device as the Board of Directors may designate and shall state the name of the record holder of the shares represented thereby; its number; date of issuance; the number of shares for which it is issued; the par value, if any, or a statement that such shares are without par value; a statement of the rights, privileges, preferences and restrictions, any; a statement as to redemption or conversion, if any, a statement of liens or restrictions upon transfer or voting, if any; if the shares be assessable, or, if assessments are collectible by personal action, a plain statement of such facts. -10- ARTICLE VII CORPORATE SEAL. The corporate seal shall be circular in form, and shall have inscribed thereon the name of the corporation, the date of its incorporation, and the word California. ARTICLE VIII AMENDMENTS TO BY-LAWS Section 1. By Shareholders. New By-Laws may be adopted or these By-Laws may be repealed or amended at their annual meeting, or at any other meeting of the shareholders called for that purpose, by a vote of shareholders entitled to exercise a majority of the voting power of the corporation, or by written assent of such shareholders. Section 2. Powers of Directors. Subject to the right of the shareholders to adopt, amend or repeal By-Laws, as provided in Section 1 of this Article VIII, the Board of Directors may adopt, amend or repeal any of these By-Laws other than a By-Law or amendment thereof changing the authorized number of directors. Section 3. Record of Amendments. Whenever an amendment or new By-Law is adopted, it shall be copied in the Book of By-Laws with the original By-Laws in the appropriate place. If any By-Law is repealed, the fact of repeal with the date of the meeting at which the repeal was enacted or written assent was filed, shall be stated in said book. KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, being all of the persons appointed in the Articles of Incorporation to act as the first Board of -12- Directors of HATCH IMPORTS, INC., hereby assent to the foregoing By-Laws and adopt the same as the By-Laws of said corporation. IN WITNESS WHEREOF, we have hereunto set our hands this 2nd day of October, 1967. /s/ Harry F. Hatch ---------------------------- Harry F. Hatch /s/ Laura D. Hatch ---------------------------- Laura D. Hatch /s/ Robert J. Hatch ---------------------------- Robert J. Hatch -13- THIS IS TO CERTIFY: That I am the duly elected, qualified and acting Secretary of HATCH IMPORTS, INC., and that the above and foregoing By-Laws were adopted as the By-Laws of said corporation on the 2nd day of October, 1967, by the persons appointed in the Articles of Incorporation to act as the first directors of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of October, 1967. Laura D. Hatch -------------------------- Secretary THIS IS TO CERTIFY: That I am the duly elected, qualified and acting Secretary of HATCH IMPORTS, INC., and that the above and foregoing Code of By-Laws was submitted to the shareholders at their first meeting held on the 2nd day of October, 1967 and was ratified by the vote of the shareholders entitled to exercise the majority of the voting power of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of October, 1967. Laura D. Hatch -------------------------- Secretary -14- EX-3.51 49 file048.txt CERTIFICATE OF INCORPORATION OF IDENTICATOR, INC. CERTIFICATE OF INCORPORATION OF IDENTICATOR ACQUISITION CORP. ----------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Identicator Acquisition Corp. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $0.001 per share. FIFTH: The name and the mailing address of the incorporator is: Jeffrey S. Tullman, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the 2 State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on October 30, 2001. /s/ Jeffrey S. Tullman ---------------------------------- Jeffrey S. Tullman Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF IDENTICATOR ACQUISITION CORP. ----------------------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is Identicator Acquisition Corp. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Identicator, Inc." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. Dated: November 30, 2001. IDENTICATOR ACQUISITION CORP. By: /s/ Heather W. Fouts -------------------------- Name: Heather W. Fouts Title: Vice President EX-3.52 50 file049.txt BYLAWS OF IDENTICATOR, INC. Ex-3.52 BYLAWS OF IDENTICATOR ACQUISITION CORP. A DELAWARE CORPORATION ---------------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the 2 number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall 8 have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, 10 each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. 11 SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. 12 ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.53 51 file050.txt CERT. OF INCORPORATION OF INTERNATIONAL CENTER ARTICLES OF INCORPORATION of INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 401 West Baseline, Suite 204, Tempe, Arizona 85283 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be as a school for study, research and education regarding aviation safety. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Tiffany & Hoffmann, P.A., 500 Dial Tower, 1850 North Central Avenue, Phoenix, Arizona 85004, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. -1- The initial Board of Directors shall consist of two persons, who shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address - ---- --------------- Stanley P. Desjardins 10016 South 51st Street Phoenix, Arizona 85044 Donald Townsend 401 West Baseline Suite 204 Tempe, Arizona 85283 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address - ---- --------------- Donald Townsend 401 West Baseline Suite 204 Tempe, Arizona 85283 Cora Yanacek 401 West Baseline Suite 204 Tempe, Arizona 85283 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. -2- IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 31st day of January, 1995. /s/ Donald W. Townsend -------------------------------- DONALD W. TOWNSEND /s/ Cora Yanacek -------------------------------- CORA YANACEK -3- EX-3.54 52 file051.txt BYLAWS OF INTL CENTER FOR SAFETY BYLAWS of INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices, The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to those Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of January of each year, commencing with the year 1996, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. -1- 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted -2- for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President arc unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; -3- provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted by him, either in person or by proxy, without a transfer of such shares into his -4- name. Shares standing in the name of a trustee, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business -5- address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. -6- (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings -7- other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. -8- 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. -9- 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and die committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares hold by each. Any books, records and minutes may be in written form or in any other form capable of being convened into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of me Corporation, upon written demand delivered to the Secretary of the Corporation or to She statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. -10- VII OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from lime to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not fee held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with nil of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to lime be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other -11- instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make if effective. IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. -12- 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. -13- XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capita] stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. -14- 12.06 Conduct of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. ***** -15- CERTIFICATION The undersigned Secretary of INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC., an Arizona corporation, hereby certifies that the foregoing Bylaws of the Corporation were duly adopted pursuant to the Unanimous Written Consent of the Board of Directors in Lieu of Organizational Meeting dated 2/6/95, 1995. /s/ Donald W. Townsend -------------------------------- DONALD W. TOWNSEND -16- EX-3.55 53 file052.txt CERTIFICATE OF INCORPORATION OF MONADNOCK Ex-3.55 CERTIFICATE OF INCORPORATION OF MONADNOCK LIFETIME PRODUCTS, INC. ----------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Monadnock Lifetime Products, Inc. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of 2 Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on November 7, 2000. /s/ Robert L. Lawrence ---------------------------------- Robert L. Lawrence Incorporator 3 EX-3.56 54 file053.txt BYLAWS OF MONADNOCK LIFETIME PRODUCTS, INC. (DE) BYLAWS OF MONADNOCK LIFETIME PRODUCTS, INC. A DELAWARE CORPORATION ------------- ARTICLE I STOCKHOLDERS SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non- election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled 2 to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II BOARD OF DIRECTORS SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alterative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III OFFICERS SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. 8 SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. 9 SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. ARTICLE IV SHARES AND THEIR TRANSFER SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 10 SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V GENERAL PROVISIONS SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, a waiver thereof 11 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. 12 SECTION 9. Disbursements. 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. ARTICLE VI INDEMNIFICATION The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII AMENDMENTS These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.57 55 file054.txt ARTICLES OF INCORPORATION OF MONADNOCK POLICE ARTICLES OF INCORPORATION OF MONADNOCK PR-24 TRAINING COUNCIL, INC. THE UNDERSIGNED, ACTING AS INCORPORATOR(S) OF A CORPORATION UNDER THE NEW HAMPSHIRE BUSINESS CORPORATION ACT, ADOPT(S) THE FOLLOWING ARTICLES OF INCORPORATION FOR SUCH CORPORATION: FIRST: The name of the Corporation is MONADNOCK PR-24 TRAINING COUNCIL, INC. (Note 1) SECOND: The period of its duration is indefinite. THIRD: The corporation is empowered to transact any and all lawful business for which corporations may be incorporated under RSA 293:A and the principal purpose or purposes for which the corporation is organized are: 1. To engage in the business of training police officers and other law enforcement and security personnel in the application and usage of weapons, batons, and other kinds of police equipment including, but not limited to, the PR-24 police baton; 2. To write, publish, purchase, sell, and distribute books, training manuals, pamphlets, films, video tapes and other materials relating to law enforcement and security training matters; 3. To conduct seminars and other educational programs having to do with the training of law enforcement and security personnel; 4. To purchase, sell and generally deal in police batons, clubs, handcuffs, and police accessories and equipment and security products of all makes, kinds and description; 5. To purchase, lease and sell land and buildings, vehicles, and to generally do all acts necessary or desirable to further the aforementioned objects and purposes and to exercise all general powers conferred by Chapter 293:A of the N.H. Revised Statutes Annotated. [if more space is needed, attach additional sheet(s)] Page 1 of 3 ARTICLES OF INCORPORATION Form No. 11 OF MONADNOCK PR-24 TRAINING COUNCIL, INC. (Cont.) FOURTH: Approval, license or permit from another New Hampshire agency, board or commission required prior to receiving a Certificate of Incorporation from the Secretary of State, has been obtained from (Note 2) N/A FIFTH: The aggregate number of shares which the corporation shall have authority to issue is: (Note 3) 300 shares no par common stock SIXTH: Provision, if any, for the limitation or denial of preemptive rights: (Note 4) N/A SEVENTH: Provisions for the regulation of the internal affairs of the corporation are: (Note 5) N/A Page 2 of 3 ARTICLES OF INCORPORATION Form No. 11 OF MONADNOCK PR-24 TRAINING COUNCIL, INC. (Cont.) EIGHTH: The address of the initial registered office of the corporation is Route 12, Fitzwilliam, N.H. 03447, and the name of its initial registered agent at such address is Paul D. Starrett NINTH: The number of directors constituting the initial board of directors of the corporation is 3, and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and shall qualify are: Name Address ---- ------- Paul D. Starrett Gilson Road, Jaffrey, N. H. 03452 Patricia Starrett Gilson Road, Jaffrey, N. H. 03452 Richard Aldsworth Route 119, Fitzwilliam, N. H. 03447 _________________ ___________________________________ TENTH: The name and address of each incorporator is: Name Address ---- ------- Paul D. Starrett Gilson Road, Jaffrey, N. H. 03452 Patricia Starrett Gilson Road, Jaffrey, N. H. 03452 _________________ ___________________________________ DATED January 24, 1985 /s/ Paul D. Starrett -------------------------- Paul D. Starrett /s/ Patricia Starrett -------------------------- Patricia Starrett -------------------------- Incorporator(s) (Note 6) Mail duplicate originals with total fees to: Secretary of State, Rm. 204, State House Concord, NH 03301-4989 Page 3 of 3 ARTICLES OF AMENDMENT to the ARTICLES OF INCORPORATION PURSUANT TO THE PROVISIONS OF THE NEW HAMPSHIRE BUSINESS CORPORATION ACT, THE UNDERSIGNED CORPORATION ADOPTS THE FOLLOWING ARTICLES OF AMENDMENT TO ITS ARTICLES OF INCORPORATION: FIRST: The name of the corporation is MONADNOCK PR-24 TRAINING COUNCIL, INC. SECOND: The text of each amendment adopted is: "To change the name of the corporation to Monadnock Police Training Council, Inc." THIRD: If the amendment provides for an exchange, reclassification, or cancellation of issued shares the provisions for implementing the amendment(s) if not contained in the above amendment are: N/A FOURTH: The amendment(s) were adopted on (date) November 12, 1997 [if more space is needed, attach additional sheet(s)] page 1 of 3 ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF MONADNOCK PR-24 TRAINING COUNCIL, INC. FIFTH: (Check one) A. [ ] The amendment(s) were adopted by the incorporators or board of directors without shareholder action and shareholder action was not required. B. [X] The amendment(s) were approved by the shareholders. (Note 1) Number of votes Designation Number of indisputably (class or series) Number of votes entitled represented at of voting group shares outstanding to be cast the meeting - ----------------- ------------------ -------------- --------------- No Par Common 100 100 100 Designation Total number of votes cast: Total number of (class or series) --------------------------- undisputed of voting group FOR AGAINST OR votes cast FOR - ----------------- --- ------- -- --------------- No Par Common 100 0 page 2 of 3 ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF MONADNOCK PR-24 TRAINING COUNCIL, INC. SIXTH: The number cast for the amendment(s) by each voting group was sufficient for approval by each voting group. Dated November 12, 1997 MONADNOCK PR-24 TRAINING COUNCIL, INC. (Note 2) By /s/ Paul D. Starrett (Note 3) ------------------------------------- Signature of its President Paul D. Starrett Print or type name Notes: 1: All sections under "B." must be completed. If any voting group is entitled to vote separately, give respective information for each voting group. (See RSA 293-A:1.40 for definition of voting group.) 2. Exact corporate name of corporation adopting articles of amendment. 3. Signature and title of person signing for the corporation. Must be signed by the chairman of the board of directors, president or another officer; or see RSA 293-A:1.20(f) for alternative signatures. Mail fee and ORIGINAL and ONE EXACT OR CONFORMED COPY to: Secretary of State, State House, Room 204, 107 North Main Street, Concord, NH 03301-4989 page 3 of 3 EX-3.58 56 file055.txt BYLAWS OF MONADNOCK POLICE TRAINING COUNCIL, INC. BYLAWS OF MONADNOCK PR-24 TRAINING COUNCIL, INC. TABLE OF CONTENTS SECTION ARTICLE I. OFFICES Section 1.1 Business Office Section 1.2 Registered Office ARTICLE II. SHAREHOLDERS Section 2.1 Annual Shareholder Meeting Section 2.2 Special Shareholder Meetings Section 2.3 Place of Shareholder Meeting Section 2.4 Notice of Shareholder Meeting Section 2.5 Fixing of Record Date Section 2.6 Shareholder List Section 2.7 Shareholder Quorum and Voting Requirements Section 2.8 Increasing Either Quorum or Voting Requirements Section 2.9 Proxies Section 2.10 Voting of Shares Section 2.11 Corporation's Acceptance of Votes Section 2.12 Informal Action by Shareholders Section 2.13 Voting for Directors Section 2.14 Shareholder's Rights to Inspect Corporate Records Section 2.15 Financial Statements Shall be Furnished to the Shareholders Section 2.16 Dissenters' Rights ARTICLE III. BOARD OF DIRECTORS Section 3.1 General Powers Section 3.2 Number, Tenure and Qualifications of Directors Section 3.3 Regular Meetings of the Board of Directors Section 3.4 Special Meetings of the Board of Directors Section 3.5 Notice of, and Waiver of Notice for, Special Director Meetings Section 3.6 Director Quorum Section 3.7 Directors, Manner of Acting Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement for the Board of Directors Section 3.9 Director Action Without a Meeting Section 3.10 Removal of Directors Section 3.11 Board of Director Vacancies Section 3.12 Director Compensation Section 3.13 Director Committees ARTICLE IV. OFFICERS Section 4.1 Number of Officers Section 4.2 Appointment and Term of Office. Section 4.3 Removal of Officers Section 4.4 President Section 4.5 Vice Presidents Section 4.6 The Secretary Section 4.7 The Treasurer Section 4.8 Assistant Secretaries and Assistant Treasurers Section 4.9 Salaries ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES Section 5.1 Indemnification of Directors Section 5.2 Advance Expenses for Directors Section 5.3 Indemnification of Officers, Agents, and Employees Who are Not Directors ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 6.1 Certificates for Shares Section 6.2 Shares Without Certificates Section 6.3 Registration of the Transfer of Shares Section 6.4 Restrictions on Transfer Shares Permitted Section 6.5 Acquisition of Shares ARTICLE VII. DISTRIBUTIONS Section 7.1 Distributions ARTICLE VIII. CORPORATE SEAL Section 8.1 Corporate Seal ARTICLE IX. EMERGENCY BYLAWS Section 9.1 Emergency Bylaws ARTICLE X. AMENDMENTS Section 10.1 Amendments BYLAWS OF MONADNOCK PR-24 TRAINING COUNCIL, INC. ARTICLE I OFFICES Section 1.1 Business Office. The principal office of the corporation shall be located at any place either within or outside the State of New Hampshire as designated in the company's most current Annual Report filed with the New Hampshire Secretary of State. The corporation may have such other offices, either within or without the State of New Hampshire, as the Board of Directors may designate or as the business of the corporation may require from time to time. The corporation shall maintain at its principal office a copy of certain records, as specified in Section 2.14 of Article II. Section 1.2 Registered Office. The registered office of the corporation, as required by Section 5.01 of the New Hampshire Business Corporation Act, shall be located within New Hampshire and may be, but need not be, identical with the principal office (if located within New Hampshire). The address of the registered office may be changed from time to time. ARTICLE II SHAREHOLDERS Section 2.1 Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on the third Tuesday of December, in each year, beginning with the year 1993, at the hour of 10:00 o'clock in the forenoon, or at such other time on such other day within such month as shall be fixed by the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of New Hampshire, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for any annual meeting of the shareholders, or at any subsequent continuation after adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. Section 2.2 Special Shareholder Meetings. Special meetings of the shareholders, for any purpose or purposes, described in the meeting notice, may be called by the president, or by the Board of Directors or by the Secretary, and shall be called by the president at the request of the holders of not less than one-tenth of all outstanding votes of the corporation entitled to be cast on any issue at the meeting. Section 2.3 Place of Shareholder Meeting. The Board of Directors may designate any place within the county in New Hampshire where the company has its principal office as the place of meeting for any annual or special meeting of the shareholders, unless all the shareholders entitled to vote at the meeting agree by written consents (which may be in the form of waiver of notice or otherwise) to another location, which may be either within or without the State of New Hampshire. If no designation is made, the place of meeting shall be the principal office of the corporation in the State of New Hampshire. Section 2.4 Notice of Shareholder Meeting. (a) Required Notice. Written notice stating the place, day and hour of any annual or special shareholder meeting shall be delivered not less than ten nor more than 60 days before the date of the meeting, either personally or by mail, by or at the direction of the president, the Board of Directors, or other persons calling the meeting, to each shareholder of record, entitled to vote at such meeting and to any other shareholder entitled by the New Hampshire Business Corporation Act or the articles of incorporation to receive notice of the meeting. Notice shall be deemed to be effective at the earlier of: (1) When deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; (2) On the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; (3) When received; or (4) Five days after deposit in the United States mail, if mailed postpaid and correctly addressed to an address other than that shown in the corporation's current record of shareholders. (b) Adjourned Meeting. If any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. But if a new record date for the adjourned meeting is, or must be fixed (see Section 2.5 of Article II) then notice must be given pursuant to the requirements of paragraph (a) of this Section 2.4, to those persons who are shareholders as of the new record date. 2 (c) Waiver of Notice. The shareholder may waive notice of the meeting (or any notice required by the Act, articles of incorporation, or bylaws), by a writing signed by the shareholder entitled to the notice, which is delivered to the corporation (either before or after the date and time stated in the notice) for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting. (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose of purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called. Except as provided in this Section 2.4(d), or as provided in the corporation's articles, or otherwise in the New Hampshire Business Corporation Act, the notice of an annual shareholder meeting need not include a description of the purpose or purposes for which the meeting is called. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the articles of incorporation (including any restated articles requiring shareholder approval); (2) a plan of merger or share exchange; (3) the sale, lease, exchange or other disposition of all, or substantially all of the corporation's property; (4) the dissolution of the corporation; or (5) the removal of a director, the notice must so state and be accompanied by respectively a copy or summary of the: (1) articles of amendment; (2) plan of merger or share exchange; and (3) transaction for disposition of all the corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders are, or may be entitled to assert dissenters' rights, and must be accompanied by a copy of Subchapter 13 of the New Hampshire Business Corporation Act. If the corporation issues, or authorizes the issuance of shares for promissory notes or for promises to render services in the future, the corporation shall report in writing to all the shareholders the number of shares authorized or issued, and the consideration received with or before the notice of the next shareholder meeting. Likewise, if the corporation indemnifies or advances expenses to a director (as defined in New Hampshire Business Corporation Act 3 section 16.21), this shall be reported to all the shareholders with or before notice of the next shareholder's meeting. Section 2.5 Fixing of Record Date. For the purpose of determining shareholders of any voting group entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be more than 70 days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If no record date is so fixed by the Board for the determination of shareholders entitled to notice of, or to vote at a meeting of shareholders, or shareholders entitled to receive a share dividend or distribution, the record date for determination of such shareholders shall be at the close of business on: (a) With respect to an annual shareholder meeting or any special shareholder meeting called by the Board or any person specifically authorized by the Board or these bylaws to call a meeting, the day before the first notice is delivered to shareholders; (b) With respect to a special shareholder's meeting demanded by the shareholders, the date the first shareholder signs the demand; (c) With respect to the payment of a share dividend, the date the Board authorizes the share dividend; (d) With respect to actions taken in writing without a meeting (pursuant to Article II, Section 2.12), the date the first shareholder signs a consent; (e) And with respect to a distribution to shareholders, (other than one involving a repurchase or reacquisition of shares), the date the Board authorizes the distribution. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the Board of Directors fixes a new record date which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. 4 Section 2.6 Shareholder List. The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete record of the shareholders entitled to vote at each meeting of shareholders thereof, arranged in alphabetical order, with the address of and the number of shares held by each. The list must be arranged by voting group (if such exists, see Article II, Section 2.7) and within each voting group by class or series of shares. The shareholder list must be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting. The list shall be available at the corporation's principal office or at a place identified in the meeting notice in the city where the meeting is to be held. A shareholder, his agent, or attorney is entitled on written demand to inspect and, subject to the requirements of Section 2.14 of this Article II, to copy the list during regular business hours and at his expense, during the period it is available for inspection. The corporation shall maintain the shareholder list in written form or in another form capable of conversion into written form within a reasonable time. Section 2.7 Shareholder Quorum and Voting Requirements. If the articles of incorporation or the New Hampshire Business Corporation Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Unless the articles of incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or the New Hampshire Business Corporation Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter. If the articles of incorporation or the New Hampshire Business Corporation Act provide for voting by two or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. 5 If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the articles of incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or the New Hampshire Business Corporation Act require a greater number of affirmative votes. Section 2.8 Increasing Either Quorum or Voting Requirements. For purposes of this Section 2.8 a "supermajority" quorum is a requirement that more than a majority of the votes of the voting group be present to constitute a quorum; and a "supermajority" voting requirement is any requirement that requires the vote of more than a majority of the affirmative votes of a voting group at a meeting. The shareholders, but only if specifically authorized to do so by the articles of incorporation, may adopt, amend, or delete a bylaw which fixes a "supermajority" quorum or "supermajority" voting requirement. The adoption or amendment of a bylaw that adds, changes, or deletes a "supermajority" quorum or voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater. A bylaw that affixes a supermajority quorum or voting requirement for shareholders may not be adopted, amended, or repealed by the Board of Directors. Section 2.9 Proxies. At all meetings of shareholders, a shareholder may vote in person, or vote by proxy which is executed in writing by the shareholder or which is executed by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after 11 months from the date of its execution unless otherwise provided in the proxy. Section 2.10 Voting of Shares. Unless otherwise provided in the articles, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. Except as provided by specific court order, no shares held by another corporation, if a majority of the shares entitled to vote 6 for the election of directors of such other corporation are held by the corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting. Provided, however, the prior sentence shall not limit the power of the corporation to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. Section 2.11 Corporation's Acceptance of Votes. (a) If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a shareholder, the corporation if acting in good faith is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder. (b) If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the name of its shareholder, the corporation if acting in good faith is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder if: (1) the shareholder is an entity as defined in the New Hampshire Business Corporation Act and the name signed purports to be that of an officer or agent of the entity; (2) the name signed purports to be that of an administrator, executor, guardian, or conservator representing the shareholder and, if the corporation requests, evidence of fiduciary status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; (3) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the corporation ________, evidence of this status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; 7 (4) the name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the corporation requests, evidence acceptable to the corporation of the signatory's authority to sign for the shareholder has been presented with respect to the vote, consent, waiver, or proxy appointment; (5) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all the co-owners. (c) The corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the shareholder. (d) The corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the shareholder for the consequences of the acceptance or rejection. (e) Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise. Section 2.12 Informal Action by Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to non-voting shareholders, the corporation shall give the non-voting shareholders written notice of the proposed action at least ten days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. 8 A consent signed under this section has the effect of a meeting vote and may be described as such in any document. Section 2.13 Voting for Directors. Unless otherwise provided in the articles of incorporation, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Section 2.14 Shareholder's Rights to Inspect Corporate Records. (a) Minutes and Accounting Records. The corporation shall keep as permanent records minutes of all meetings of its shareholders and board of directors, a record of all actions taken by the shareholders or board of directors without a meeting, and a record of all actions taken by a committee of the Board of Directors on behalf of the corporation. The corporation shall maintain appropriate accounting records. (b) Absolute Inspection Rights of Records Required at Principal Office. If he gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy, a shareholder (or his agent or attorney) has the right to inspect and copy, during regular business hours any of the following records, all of which the corporation is required to keep at its principal office: (1) its articles or restated articles of incorporation and all amendments to them currently in effect; (2) its bylaws or restated bylaws and all amendments to them currently in effect; (3) resolutions adopted by its Board of Directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding; (4) the minutes of all shareholders' meetings, and records of all actions taken by shareholders without a meeting, for the past three years; (5) all written communications to shareholders generally within the past three years, including the financial statement furnished for the past three years to the shareholders; 9 (6) a list of the names and business addresses of its current directors and officers; and, (7) its most recent annual report delivered to the Secretary of State. (c) Conditional Inspection Right. In addition, if he gives the corporation a written demand made in good faith and for a proper purpose at least five business days before the date on which he wishes to inspect and copy, he describes with reasonable particularity his purpose and the records he desires to inspect, and the records are directly connected with this purpose, a shareholder of a corporation (or his agent or attorney) is entitled to inspect and copy, during regular business hours at a reasonable location specified by the corporation, any of the following records of the corporation: (1) excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors on behalf of the corporation, minutes of any meeting of the shareholders, and records of actions taken by the shareholders or Board of Directors without a meeting, to the extent not subject to inspection under paragraph (a) of this Section 2.14. (2) accounting records of the corporation; and (3) the record of shareholders (compiled no earlier than the date of the shareholder's demand). (d) Copy Costs. The right to copy records includes, if reasonable, the right to receive copies made by photographic, xerographic, or other means. The corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the shareholder. The charge may not exceed the estimated cost of production or reproduction of the records. (e) Shareholder Includes Beneficial Owner. For purposes of this Section 2.14, the term "shareholder" shall include a beneficial owner whose shares are held in a voting trust or by a nominee on his behalf. Section 2.15 Financial Statements Shall Be Furnished to the Shareholders. (a) The corporation shall furnish its shareholders annual financial statements, which may be consolidated or combined statements of the corporation and one or more of its subsidiaries, as appropriate, that include a 10 balance sheet as of the end of the fiscal year, an income statement for that year, and a statement of changes in shareholders' equity for the year unless that information appears elsewhere in the financial statements. If financial statements are prepared for the corporation on the basis of generally accepted accounting principles, the annual financial statements for the shareholders also must be prepared on that basis. (b) If the annual financial statements are reported upon by a public accountant, his report must accompany them. If not, the statements must be accompanied by a statement of the president or the person responsible for the corporation's accounting records: (1) stating his reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and (2) describing any respects in which the statements were not prepared on a basis of accounting consistent with the statements prepared for the preceding year. (c) A corporation shall mail the annual financial statements to each shareholder within 120 days after the close of each fiscal year. Thereafter, on written request from a shareholder who was not mailed the statements, the corporation shall mail him the latest financial statements. Section 2.16 Dissenters' Rights. Each shareholder shall have the right to dissent from and obtain payment for his shares when so authorized by the New Hampshire Business Corporation Act, articles of incorporation, these bylaws, or in a resolution of the Board of Directors. ARTICLE III BOARD OF DIRECTORS Section 3.1 General Powers. Unless the articles of incorporation have dispensed with or limited the authority of the Board of Directors by describing who will perform some or all of the duties of a Board of Directors, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of the Board of Directors. 11 Section 3.2 Number, Tenure, and Qualifications of Directors. Unless otherwise provided in the articles of incorporation, the authorized number of directors shall be not less than one nor more than five. The current number of directors shall be within the limits specified above, and as determined (or as amended from time-to-time) by resolution adopted by either the shareholders or directors. Each director shall hold office until the next annual meeting of shareholders or until removed. However, if his term expires, he shall continue to serve until his successor shall have been elected and qualified, or until there is a decrease in the number of directors. Directors need not be residents of the State of New Hampshire or shareholders of the corporation unless so required by the articles of incorporation. Section 3.3 Regular Meetings of the Board of Directors. A regular meeting of the Board of Directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the time and place (which shall be within the county where the company's principal office is located) for the holding of additional regular meetings without other notice than such resolution. (If so permitted by Section 3.7, any such regular meeting may be held by telephone.) Section 3.4 Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be called by or at the request of the president or any one director. The person authorized to call special meetings of the Board of Directors may fix any place, only within the county where this corporation has its principal office as the place for holding any special meeting of the Board of Directors, or if permitted by Section 3.7, such meeting may be held by telephone. Section 3.5 Notice of, and Waiver of Notice for, Special Director Meetings. Unless the articles of incorporation provide for a longer or shorter period, notice of any special director meeting shall be given at least two days previously thereto either orally or in writing. If mailed, notice of any director meeting shall be deemed to be effective at the earlier of: (1) when received; (2) five days after deposited in the United States mail, addressed to the director's business office, with postage thereon prepaid; or (3) 12 the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the director. Any director may waive notice of any meeting. Except as provided in the next sentence, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business and at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting, and does not thereafter vote for or assent to action taken at the meeting. Unless required by the articles of incorporation, neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 3.6 Director Quorum. If Section 3.2 establishes a fixed board size, a majority of the number of directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the articles require a greater number. If Section 3.2 permits a variable-range size board (a board size set by resolution within a given range), a majority of the number of directors prescribed by resolution, (or if no number is prescribed the number in office immediately before the meeting begins) shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the articles require a greater number. Any amendment to this quorum requirement is subject to the provisions of Section 3.8 of this Article III. Section 3.7 Directors, Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present when the vote is taken shall be the act of the Board of Directors unless the articles of incorporation require a greater percentage. Any amendment which changes the number of directors needed to take action, is subject to the provisions of Section 3.8. Unless the articles of incorporation provide otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director 13 participating in a meeting by this means is deemed to be present in person at the meeting. A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) he objects at the beginning of the meeting (or promptly upon his arrival) to holding it or transacting business at the meeting; or (2) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement for the Board of Directors. For purposes of this Section 3.8, a "supermajority" quorum is a requirement that more than a majority of the directors in office constitute a quorum; and a "supermajority" voting requirement is any requirement that requires the vote of more than a majority of those directors present at a meeting at which a quorum is present to be the act of the directors. A bylaw that fixes a supermajority quorum or supermajority voting requirement may be amended or repealed: (1) if originally adopted by the shareholders, only by the shareholders (unless otherwise provided by the shareholders); (2) if originally adopted by the Board of Directors, either by the shareholders or by the Board of Directors. A bylaw adopted or amended by the shareholders that fixes a supermajority quorum or supermajority voting requirement for the Board of Directors may provide that it may be amended or repealed only by a specified vote of either the shareholders or the Board of Directors. Subject to the provisions of the preceding paragraph, action by the Board of Directors to adopt, amend, or repeal a bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater. 14 Section 3.9 Director Action Without a Meeting. Unless the articles of incorporation provide otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if all the directors take the action, each one signs a written consent describing the action taken, and the consents are filed with the records of the corporation. Action taken by consents is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be described as such in any document. Section 3.10 Removal of Directors. The shareholders may remove one or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal. The removal may be with or without cause unless the articles provide that directors may only be removed with cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. Section 3.11 Board of Director Vacancies. Unless the articles of incorporation provide otherwise, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, the shareholders may fill the vacancy. During such time that the shareholders fail or are unable to fill such vacancies then and until the shareholders act: (1) the Board of Directors may fill the vacancy; or (2) if the directors remaining in office constitute fewer than a quorum of the Board, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs. 15 The term of a director elected to fill a vacancy expires at the next shareholders' meeting at which directors are elected. However, if his term expires, he shall continue to serve until his successor is elected and qualified or until there is a decrease in the number of directors. Section 3.12 Director Compensation. Unless otherwise provided in the articles, by resolution of the Board of Directors, each director may be paid his expenses, if any, of attendance at each meeting of the Board of Directors, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or both. No such payment shall preclude any director from serving the corporation in any capacity or receiving compensation therefor. Section 3.13 Director Committees. (a) Creation of Committees. Unless the articles of incorporation provide otherwise, the Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee must have two or more members, who serve at the pleasure of the Board of Directors. (b) Selection of Members. The creation of a committee and appointment of members to it must be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the articles of incorporation to take such action, (or if not specified in the articles the numbers required by Section 3.7 of this Article III to take action). (c) Required Procedures. Sections 3.4, 3.5, 3.6, 3.7, 3.8, and 3.9 of this Article III, which govern meetings, action without meetings, notice and waiver of notice, quorum and voting requirements of the Board of Directors, apply to committees and their members. (d) Authority. Unless limited by the articles of incorporation, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee. Provided, however, a committee may not: (1) authorize distributions; (2) approve or propose to shareholders action that the New Hampshire Business Corporation Act requires be approved by shareholders; 16 (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the articles of incorporation pursuant to the authority of directors, to do so granted by Section 10.02 of the New Hampshire Business Corporation Act, (5) adopt, amend, or repeal bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; or (8) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except that the Board of Directors may authorize a committee (or a senior executive officer of the corporation) to do so within limits specifically prescribed by the Board of Directors. ARTICLE IV OFFICERS Section 4.1 Number of Officers. The officers of the corporation shall be a president, a secretary, and a treasurer, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any vice presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one or more officers or assistant officers. The same individual may simultaneously hold more than one office in the corporation. Section 4.2 Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. (The designation of a specified term grants to the officer no contract rights, and the Board can remove the officer at any time prior to the termination of such term.) If no term is specified, they shall hold office until they resign, die, or until they are removed in the manner provided in Section 4.3 of this Article IV. 17 Section 4.3 Removal of Officers. Any officer or agent may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of itself create contract rights. Section 4.4 President. The president shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and of the Board of Directors. The president may sign, with the secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time. Section 4.5 Vice Presidents. If appointed, in the absence of the president or in the event of his death, 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 at the time of their election, or in the absence of any designation, then in the order of their appointment) 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. (If there is no vice president, then the treasurer shall perform such duties of the president.) Any vice president may sign, with the secretary or an assistant secretary, certificates for shares of the corporation the issuance of which have been authorized by resolution of the Board of Directors; 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. Section 4.6 The Secretary. The secretary shall: 18 (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation and if there is a seal of the corporation, see that it is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the post office address of each shareholder which shall be furnished to the secretary by such shareholder; (f) sign with the president, or vice president, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (g) have general charge of the stock transfer books of the corporation; and (h) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the president or by the Board of Directors. Section 4.7 The Treasurer. The treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositaries as shall be selected by the Board of Directors; and (c) in general perform all of the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him by the president or by the Board of Directors. If required by the Board of Directors, the treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 19 Section 4.8 Assistant Secretaries and Assistant Treasurers. The assistant secretaries, when authorized by the Board of Directors, may sign with the president or a vice president certificates for shares of the corporation the issuance of which shall have been authorized by a resolution of the Board of Directors. 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. The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or the treasurer, respectively, or by the president or the Board of Directors. Section 4.9 Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES Section 5.1 Indemnification of Directors. Unless otherwise provided in the articles, the corporation shall indemnify any individual made a party to a proceeding because he is or was a director of the corporation, against liability incurred in the proceeding, but only if such indemnification is both (i) determined permissible and (ii) authorized, as defined in subsection (a) of this Section 5.1. (Such indemnification is further subject to the limitation specified in subsection (c).) (a) Determination and Authorization. The corporation shall not indemnify a director under this Section 5.1 of Article V unless: (1) Determination. A determination has been made in accordance with the procedures set forth in Section 8.55(b) of the New Hampshire Business Corporation Act that the director met the standard of conduct set forth in subsection (b) below, and (2) Authorization. Payment has been authorized in accordance with the procedures set forth in Section 8.55 (c) of the New Hampshire Business Corporation Act based on a conclusion that the expenses are reasonable, the corporation has the financial ability to make the payment, and the financial resources of the corporation should be devoted to 20 this use rather than some other use by the corporation. (b) Standard of Conduct. The individual shall demonstrate that: (1) he conducted himself in good faith; and (2) he reasonably believed: (i) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests; (ii) in all other cases, that his conduct was not opposed to its best interest; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. The corporation shall not indemnify a director under this Section 5.1, Article V: (1) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or (2) in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. (c) Indemnification in Derivative Actions Limited. Indemnification permitted under this Section 5.1 of Article V in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding. Section 5.2 Advance Expenses for Directors. If a determination is made, following the procedures of Section 8.55(b) of the New Hampshire Business Corporation Act that the director has met the following requirements; and if an authorization of payment is made, following the procedures and standards set forth in Section 8.55 (c) of the New Hampshire Business Corporation Act, then unless otherwise provided in the articles of incorporation, the company shall pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding, if: 21 (1) the director furnishes the corporation a written affirmation of his good faith belief that he has met the standard of conduct described in Section 5.1 of this Article V; (2) the director furnishes the corporation a written undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet the standard of conduct (which undertaking must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment); and (3) a determination is made that the facts then known to those making the determination would not preclude indemnification under Section 5.1 of this Article V or Sections 8.50 through 8.58 of the New Hampshire Business Corporation Act. Section 5.3 Indemnification of Officers, Agents, and Employees Who Are Not Directors. Unless otherwise provided in the articles of incorporation, the Board of Directors may indemnify and advance expenses to any officer, employee, or agent of the corporation, who is not a director of the corporation, to any extent consistent with public policy, as determined by the general or specific action of the Board of Directors. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 6.1 Certificates for Shares. (a) Consent. Certificates representing shares of the corporation shall at minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of New Hampshire; the name of the person to whom issued; and the number and class of shares and the designation of the series, if any, the certificate represents; and be in such form as determined by the Board of Directors. Such certificates shall be signed (either manually or by facsimile) by the president or a vice president and by the secretary or an assistant secretary and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified. (b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable 22 to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) must be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish the shareholder this information on request in writing and without charge. (c) Shareholder List. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. (d) Transferring Shares. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed, or mutilated certificate a new one may be issued therefor upon such terms and indemnity to the corporation as the Board of Directors may prescribe. Section 6.2 Shares Without Certificates. (a) Issuing Shares Without Certificates. Unless the articles of incorporation provide otherwise, the Board of Directors may authorize the issue of some or all the shares of any or all of its classes or series without certificates. The authorization does not affect shares already represented by certificates until they are surrendered to the corporation. (b) Information Statement Required. Within a reasonable time after the issue or transfer of shares without certificates, the corporation shall send the shareholder a written statement containing at minimum: (1) the name of the issuing corporation and that it is organized under the law of this State; (2) the name of the person to whom issued; and (3) the number and class of shares and the designation of the series, if any, of the issued shares. If the corporation is authorized to issue different classes of shares or different series within a class, the written statement shall describe the designations, relative rights, preferences, and limitations applicable to each class and the variation in rights, preferences, and limitations determined for each series (and the 23 authority of the Board of Directors to determine variations for future series). Section 6.3 Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the person in whose name shares stand on the books of the corporation shall be deemed by the corporation to be the owner thereof for all purposes. Section 6.4 Restrictions on Transfer of Shares Permitted. The Board of Directors (or shareholders) may impose restrictions on the transfer or registration of transfer of shares (including any security convertible into, or carrying a right to subscribe for or acquire shares). A restriction does not affect shares issued before the restriction was adopted unless the holders of the shares are parties to the restriction agreement or voted in favor of the restriction. A restriction on the transfer or registration of transfer of shares may be authorized: (1) to maintain the corporation's status when it is dependent on the number or identity of its shareholders; (2) to preserve exemptions under federal or state securities law; (3) for any other reasonable purpose. A restriction on the transfer or registration of transfer of shares may: (1) obligate the shareholder first to offer the corporation or other persons (separately, consecutively, or simultaneously) an opportunity to acquire the restricted shares; (2) obligate the corporation or other persons (separately, consecutively, or simultaneously) to acquire the restricted shares; 24 (3) require the corporation, the holders or any class of its shares, or another person to approve the transfer of the restricted shares, if the requirement is not manifestly unreasonable; (4) prohibit the transfer of the restricted shares to designated persons or classes of persons, if the prohibition is not manifestly unreasonable. A restriction on the transfer or registration of transfer of shares is valid and enforceable against the holder or a transferee of the holder if the restriction is authorized by this section and its existence is noted conspicuously on the front or back of the certificate or is contained in the information statement required by Section 6.2 of this Article VI with regard to shares issued without certificates. Unless so noted, a restriction is not enforceable against a person without knowledge of the restriction. Section 6.5 Acquisition of Shares. The corporation may acquire its own shares and unless otherwise provided in the articles of incorporation, the shares so acquired constitute authorized but unissued shares. If the articles of incorporation prohibit the reissue of acquired shares, the number of authorized shares is reduced by the number of shares acquired, effective upon amendment of the articles of incorporation, which amendment shall be adopted by the shareholders or the Board of Directors without shareholder action. The articles of amendment must be delivered to the Secretary of State and must set forth: (1) the name of the corporation; (2) the reduction in the number of authorized shares, itemized by class and series; and (3) the total number of authorized shares, itemized by class and series, remaining after reduction of shares. ARTICLE VII DISTRIBUTIONS Section 7.1 Distributions. The Board of Directors may authorize, and the corporation may make, distributions (including dividends on its outstanding shares) in the manner and upon the terms and conditions provided by law and in the corporation's articles of incorporation. 25 ARTICLE VIII CORPORATE SEAL Section 8.1 Corporate Seal. The Board of Directors may provide a corporate seal which may be circular in form and have inscribed thereon any designation including the name of the corporation, New Hampshire as the state of incorporation, and the words "Corporate Seal." ARTICLE IX EMERGENCY BYLAWS Section 9.1 Emergency Bylaws. Unless the articles of incorporation provide otherwise, the following provisions of this Article IX, Section 9.1 "Emergency Bylaws" shall be effective during an emergency which is defined as when a quorum of the corporation's directors cannot be readily assembled because of some catastrophic event. During such emergency: (a) Notice of Board Meetings. Any one member of the Board of Directors or any one of the following officers: president, any vice president, secretary, or treasurer, may call a meeting of the Board of Directors. Notice of such meeting need be given only to those directors whom it is practicable to reach, and may be given in any practical manner, including by publication and radio. Such notice shall be given at least six hours prior to commencement of the meeting. (b) Temporary Directors and Quorum. One or more officers of the corporation present at the emergency board meeting, as is necessary to achieve a quorum, shall be considered to be directors for the meeting, and shall so serve in order of rank, and within the same rank, in order of seniority. In the event that less than a quorum (as determined by Article III, Section 3.6) of the directors are present (including any officers who are to serve as directors), those directors present (including any officers serving as directors) shall constitute a quorum. (c) Actions Permitted to Be Taken. The board as constituted in paragraph (b), and after notice as set forth in paragraph (a) may: (1) Officers' Powers. Prescribe emergency powers to any officer of the corporation; 26 (2) Delegation of Any Power. Delegate to any officer or director, any of the powers of the Board of Directors; (3) Lines of Succession. Designate lines of succession of officers and agents, in the event that any of them are unable to discharge their duties; (4) Relocate Principal Place of Business. Relocate the principal place of business, or designate successive or simultaneous principal places of business; (5) All Other Actions. Take any other action, convenient, helpful, or necessary to carry on the business of the corporation. ARTICLE X AMENDMENTS Section 10.1 Amendments. The corporation's Board of Directors may amend or repeal the corporation's bylaws unless: (1) the articles of incorporation or the New Hampshire Business Corporation Act reserve this power exclusively to the shareholders in whole or part; or (2) the shareholders in adopting, amending, or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw; or (3) the bylaw either establishes, amends, or deletes, a supermajority shareholder quorum or voting requirement (as defined in Section 2.8 of Article II). Any amendment which changes the voting or quorum requirement for the Board must comply with Article III, Section 3.8, and for the shareholders, must comply with Article II, Section 2.8. The corporation's shareholders may amend or repeal the corporation's bylaws even though the bylaws may also be amended or repealed by its Board of Directors. This version of the corporation's bylaws is dated December 21, 1993. 27 EX-3.59 57 file056.txt CERTIFICATE OF LIMITED PARTNERSHIP & AMENDMENTS State of California [SEAL] March Fong Eu Form LP Secretary of State CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT--Read instructions on back before completing this form This Certificate is presented for filing pursuant to Section 15621, California Corporations Code. ==================================================================================================================================== 1. NAME OF LIMITED PARTNERSHIP NAP PROPERTIES, LTD., a California Limited Partnership - ------------------------------------------------------------------------------------------------------------------------------------ 2. STREET ADDRESS OF PRINCIPAL EXECUTIVE OFFICE CITY AND STATE ZIP CODE 1941 S. Walker Avenue Monrovia, CA 91016 - ------------------------------------------------------------------------------------------------------------------------------------ 3. STREET ADDRESS OF CALIFORNIA OFFICE IF EXECUTIVE OFFICE IS IN ANOTHER STATE CITY ZIP CODE N/A CA ==================================================================================================================================== 4. COMPLETE IF LIMITED PARTNERSHIP WAS FORMED PRIOR TO JULY 1, 1984 AND IS IN EXISTENCE ON DATE THIS CERTIFICATE IS EXECUTED. N/A THE ORIGINAL LIMITED PARTNERSHIP CERTIFICATE WAS RECORDED ON _____________________________________ 19 __________ WITH THE RECORDER OF_______________________________COUNTY. FILE OR RECORDATION NUMBER _________________________________ - ------------------------------------------------------------------------------------------------------------------------------------ 5. NAMES AND ADDRESSES OF ALL GENERAL PARTNERS: (CONTINUE ON SECOND PAGE, IF NECESSARY) A. NAME: NEALE A. PERKINS C. NAME: DAVID M. HOLMES ADDRESS: 1941 S. Walker Avenue ADDRESS: 27281 Las Ramblas, Ste 155 CITY: Monrovia STATE: CA ZIP CODE: 91016 CITY: Mission Viejo STATE: CA ZIP CODE: 92691 - ------------------------------------------------------------------------------------------------------------------------------------ B. NAME: ARLENE HAMEL D. NAME: ADDRESS: 1941 S. Walker Avenue ADDRESS: CITY: Monrovia STATE: CA ZIP CODE: 91016 CITY: STATE: ZIP CODE: ==================================================================================================================================== 6. NAME AND ADDRESS OF AGENT FOR SERVICE OF PROCESS: NAME: DAVID M. HOLMES, Esq. ADDRESS: 27281 Las Ramblas, Ste 155 CITY: Mission Viejo STATE: CA ZIP CODE: 92691 ==================================================================================================================================== 7. ANY OTHER MATTERS TO BE INCLUDED IN THIS CERTIFICATE MAY BE 8. INDICATE THE NUMBER OF GENERAL PARTNERS SIGNATURES REQUIRED FOR NOTED ON SEPARATE PAGES AND BY REFERENCE HEREIN ARE A PART FILING CERTIFICATES OF AMENDMENT, DISSOLUTION, CONTINUATION AND OF THIS CERTIFICATE. CANCELLATION. --- --- NUMBER OF PAGES ATTACHED: 0 NUMBER OF GENERAL PARTNER(S) SIGNATURES IS/ARE: 2 --- --- PLEASE INDICATE NUMBER ONLY ==================================================================================================================================== 9. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS CERTIFICATE OF LIMITED PARTNERSHIP WHICH EXECUTION IS MY (OUR) ACT AND DEED. (SEE INSTRUCTIONS) ========================================= THIS SPACE FOR FILING OFFICER USE /s/ Neale A. Perkins /s/ David M. Holmes 8922300028 - ------------------------------------------- ------------------------------------------ SIGNATURE Neale A. Perkins SIGNATURE David M. Holmes General Partner 8/10/89 General Partner 8/10/89 POSITION OR TITLE DATE POSITION OR TITLE DATE FILED /s/ Arlene Hamel - ------------------------------------------- ------------------------------------------ In the office of the Secretary of State SIGNATURE Arlene Hamel SIGNATURE of the State of California General Partner 8/10/89 AUG 11 1989 ------------------------------------------ POSITION OR TITLE DATE POSITION OR TITLE DATE ======================================================================================== /s/ MARCH FONG EU -------------------- 10. RETURN ACKNOWLEDGEMENT TO: MARCH FONG EU SECRETARY OF STATE NAME ADDRESS Law Offices of David M. Holmes, Inc. CITY 27281 Las Ramblas, Ste. 155 STATE Mission Viejo, CA 92691 ZIP CODE ======================================================================================== SEC/STATE REV. 1/88 FORM LP. 1--FILING FEE: $70 Approved by Secretary of State ====================================================================================================================================
State of California [SEAL] March Fong Eu Form LP Secretary of State AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT--Read instructions on back before completing this form This Certificate is presented for filing pursuant to Section 15622, California Corporations Code. ==================================================================================================================================== 1. SECRETARY OF STATE FILE NO. 2. NAME OF LIMITED PARTNERSHIP (ORIGINAL CERTIFICATE--FORM LP-1) 89 22300028 NAP PROPERTIES, LTD, a California Limited Partnership - ------------------------------------------------------------------------------------------------------------------------------------ 3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: (COMPLETE APPROPRIATE SUB-SECTION(S) CONTINUE ON SECOND PAGE. IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: - ------------------------------------------------------------------------------------------------------------------------------------ B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE: E. GENERAL PARTNER NAME CHANGE: ADDRESS: OLD NAME: CITY: STATE: ZIP CODE: NEW NAME: - ------------------------------------------------------------------------------------------------------------------------------------ C. CALIFORNIA OFFICE ADDRESS CHANGE: F. GENERAL PARTNER(S) WITHDRAWN: ADDRESS: NAME: CITY: STATE: CA ZIP CODE: NAME: - ------------------------------------------------------------------------------------------------------------------------------------ D. GENERAL PARTNER ADDRESS CHANGE: G. GENERAL PARTNER ADDED: NAME: NAME: Scott T. O'Brien ADDRESS: ADDRESS: 1941 S. Walker Avenue CITY: STATE: ZIP CODE: CITY: Monrovia STATE: CA ZIP CODE: 91016 - ------------------------------------------------------------------------------------------------------------------------------------ H. INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: NAME: ADDRESS: CITY: STATE: CA ZIP CODE: - ------------------------------------------------------------------------------------------------------------------------------------ I. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE J. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED AND FILE CERTIFICATES OF AMENDMENT, DISSOLUTION, CON- PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED TINUATION AND CANCELLATION IS CHANGED TO: PAGE(S). --- --- NUMBER OF PAGES ATTACHED: -0- --- --- (PLEASE INDICATE NUMBER ONLY). ==================================================================================================================================== 4. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED CERTIFICATE OF LIMITED, PARTNERSHIP WHICH EXECUTION IS MY (OUR) ACT AND ======================================== DEED. (SEE INSTRUCTIONS) THIS SPACE FOR FILING OFFICER USE 89 223 00028 /s/ David M. Holmes /s/ Scott T. O'Brien - ------------------------------------------- ------------------------------------------ SIGNATURE David M. Holmes SIGNATURE Scott T. O'Brien General Partner 12/04/89 General Partner 12/04/89 - ------------------------------------------- ------------------------------------------ POSITION OR TITLE DATE POSITION OR TITLE DATE FILED In the office of the Secretary of State /s/ Arlene Hamel of the State of California - ------------------------------------------- ------------------------------------------ SIGNATURE Arlene Hamel SIGNATURE FEB 21 1990 General Partner 2/08/90 - ------------------------------------------- ------------------------------------------ /s/ March Fong Eu POSITION OR TITLE DATE POSITION OR TITLE DATE MARCH FONG EU, Secretary of State ======================================================================================== 5. RETURN ACKNOWLEDGEMENT TO: NAME DAVID M. HOLMES ADDRESS DAVID M. HOLMES, INC. CITY 27281 Las Ramblas, Ste. 155 STATE Mission Viejo, CA 92691 ZIP CODE ======================================================================================== SEC/STATE REV. 1/88 FORM LP-2--FILING FEE: $__ Approved by Secretary of State ====================================================================================================================================
State of California [SEAL] Secretary of State Form LP AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT--Read instructions on back before completing this form This Certificate is presented for filing pursuant to Section 15622, California Corporations Code. - ------------------------------------------------------------------------------------------------------------------------------------ 1. SECRETARY OF STATE FILE NO. 2. NAME OF LIMITED PARTNERSHIP (ORIGINAL CERTIFICATE--FORM LP-1) 89 223 00028 NAP PROPERTIES LTD., a California limited partnership - ------------------------------------------------------------------------------------------------------------------------------------ 3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: COMPLETE APPROPRIATE SUB-SECTION(S) CONTINUE ON SECOND PAGE. IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: - ------------------------------------------------------------------------------------------------------------------------------------ B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE: E. GENERAL PARTNER NAME CHANGE: ADDRESS: OLD NAME: CITY: STATE: ZIP CODE: NEW NAME: - ------------------------------------------------------------------------------------------------------------------------------------ C. CALIFORNIA OFFICE ADDRESS CHANGE: F. GENERAL PARTNER(S) WITHDRAWN: ADDRESS: NAME: NAP PROPERTY MANAGERS, A General Partnership CITY: STATE: CA ZIP CODE: NAME: - ------------------------------------------------------------------------------------------------------------------------------------ D. GENERAL PARTNER ADDRESS CHANGE: G. GENERAL PARTNER ADDED: NAME: NAME: NAP PROPERTY MANAGERS LLC; A Limited Liability Company ADDRESS: ADDRESS: 3120 East Mission Boulevard CITY: STATE: ZIP CODE: CITY: Ontario STATE: CA ZIP CODE: 91761 - ------------------------------------------------------------------------------------------------------------------------------------ H. PERSON(S) WINDING UP AFFAIRS OF LIMITED PARTNERSHIP: I. INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS ____ CHANGED TO: NAME: NAME: ADDRESS: ADDRESS: CITY: STATE: ZIP CODE: CITY: STATE: CA ZIP CODE: - ------------------------------------------------------------------------------------------------------------------------------------ J. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE K. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED AND FILE CERTIFICATES OF AMENDMENT, RESTATEMENT, PARTNERS ARE AMENDED AS INDICATED ON THE ATTACHED PAGE(S). DISSOLUTION, CONTINUATION, CANCELLATION AND MERGER IS CHANGED TO: --- --- 1 NUMBER OF PAGES ATTACHED: --- --- (PLEASE INDICATE NUMBER ONLY) - ------------------------------------------------------------------------------------------------------------------------------------ 4. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED CERTIFICATE OF LIMITED PARTNERSHIP, WHICH EXECUTION IS MY (OUR) ACT AND DEED. (SEE INSTRUCTIONS) ========================================= THIS SPACE FOR FILING OFFICER USE NAP Properties Ltd. 89 223 00028 by: NAP Property Managers LLC, a limited liability company BY: /s/ Illegible - ------------------------------------------- ------------------------------------------ SIGNATURE SIGNATURE General Partner ---------------------------------------- ------------------------------------------ POSITION OR TITLE DATE POSITION OR TITLE DATE NAP Property Managers, LLC, a limited liability company BY: /s/ Illegible FILED ---------------------------------------- ------------------------------------------ In the office of the Secretary of State SIGNATURE SIGNATURE of the State of California Member ---------------------------------------- ------------------------------------------ POSITION OR TITLE DATE POSITION OR TITLE DATE =========================================================================================== 5. RETURN ACKNOWLEDGMENT TO: NOV - 1 1996 NAME Michael K. Inglis, Esq. ADDRESS INGLIS, LEDBETTER & GOWER /s/ Bill Jones ------------------------------ CITY 500 S. Grand Avenue, #1800 BILL JONES, Secretary of State STATE Los Angeles, CA 90071 ZIP CODE =========================================================================================== SEC/STATE REV. 1/93 FORM LP-2 -- FILING FEE: $15.00 Illegible
State of California March Fong Eu [SEAL] Secretary of State Form LP AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT--Read instructions on back before completing this form This Certificate is presented for filing pursuant to Section 15622, California Corporations Code. ==================================================================================================================================== 1. SECRETARY OF STATE FILE NO. 2. NAME OF LIMITED PARTNERSHIP (ORIGINAL CERTIFICATE--FORM LP-1) 89 22300028 NAP PROPERTIES, LTD., a California Limited Partnership - ------------------------------------------------------------------------------------------------------------------------------------ 3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: (COMPLETE APPROPRIATE SUB-SECT1ON(S) CONTINUE ON SECOI PAGE, IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: - ------------------------------------------------------------------------------------------------------------------------------------ B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE: E. GENERAL PARTNER NAME CHANGE: ADDRESS: 3120 E. Mission Blvd., Box 51478 OLD NAME: CITY: Ontario STATE: CA ZIP CODE: 91761 NEW NAME: - ------------------------------------------------------------------------------------------------------------------------------------ C. CALIFORNIA OFFICE ADDRESS CHANGE: F. GENERAL PARTNER(S) WITHDRAWN: ADDRESS: NAME: CITY: STATE: CA ZIP CODE: NAME: - ------------------------------------------------------------------------------------------------------------------------------------ D. GENERAL PARTNER ADDRESS CHANGE: G. GENERAL PARTNER ADDED: NAME: NAME: ADDRESS: ADDRESS: CITY: STATE: ZIP CODE: CITY: STATE: ZIP CODE: - ------------------------------------------------------------------------------------------------------------------------------------ H. INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: NAME: ADDRESS: CITY: STATE: CA ZIP CODE: - ------------------------------------------------------------------------------------------------------------------------------------ I. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE J. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED AND FILE CERTIFICATES OF AMENDMENT, DISSOLUTION, PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGE(S). CONTINUATION AND CANCELLATION IS CHANGED TO: --- --- NUMBER OF PAGES ATTACHED: 1 --- --- (PLEASE INDICATE NUMBER ONLY). ==================================================================================================================================== 4. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT ========================================= TO THE IDENTIFIED CERTIFICATE OF LIMITED PARTNERSHIP, WHICH EXECUTION IS MY (OUR) ACT THIS SPACE FOR FILING OFFICER USE AND DEED. (SEE INSTRUCTIONS) 89 223 00028 /s/ Neale A. Perkins /s/ Arlene Hamel - ------------------------------------------- ------------------------------------------ SIGNATURE Neale A. Perkins SIGNATURE Arlene Hamel General Partner 10/5/90 General Partner 10/5/90 - ------------------------------------------- ------------------------------------------ POSITION OR TITLE DATE POSITION OR TITLE DATE FILED /s/ Scott T. O'Brien /s/ David M. Holmes In the office of the Secretary of State - ------------------------------------------- ------------------------------------------ of the State of California SIGNATURE Scott T. O'Brien SIGNATURE David M. Holmes OCT 15 1990 General Partner 10/5/90 General Partner 10/5/90 /s/ March Fong Eu - ------------------------------------------- ------------------------------------------ ----------------- POSITION OR TITLE DATE POSITION OR TITLE DATE MARCH FONG EU ======================================================================================== SECRETARY OF STATE 5. RETURN ACKNOWLEDGEMENT TO: NAME David M. Holmes, Esq. ADDRESS Law Offices of David M. Holmes, Inc. CITY 27281 Las Ramblas, Ste. 155 STATE Mission Viejo, CA 92691 ZIP CODE ================================================================================ SEC/STATE REV. 1/88 FORM LP-2--FILING FEE:$15 Approved by Secretary of State ====================================================================================================================================
ATTACHMENT 2 AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP (Form LP-2) NAP PROPERTIES, LTD., a California Limited Partnership Original Certificate No. 89 22300028 The consent and signatures of any three (3) of the General Partners named in this Partnership's Certificate of Limited Partnership, as Amended, shall be required to encumber or to convey title to any real property held in the Partnership name by a conveyance as defined in Section 15010.5(2) of the California Corporations Code executed in the Partnership name. General Partners: /s/ NEALE A. PERKINS ---------------------------------------- NEALE A. PERKINS /s/ ARLENE HAMEL ---------------------------------------- ARLENE HAMEL /s/ SCOTT T. O'BRIEN ---------------------------------------- SCOTT T. O'BRIEN /s/ DAVID M. HOLMES ---------------------------------------- DAVID M. HOLMES Limited Partner: /s/ NEALE A. PERKINS ---------------------------------------- NEALE A. PERKINS 8922300028 State of California [SEAL] Secretary of State Form LP-2 AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT--Read instructions on back before completing this form This Certificate is presented for filing pursuant to Section 15622, California Corporations Code. ==================================================================================================================================== 1. SECRETARY OF STATE FILE NO. 2. NAME OF LIMITED PARTNERSHIP (ORIGINAL CERTIFICATE--FORM LP-1) 89 223 00028 NAP PROPERTIES, LTD., a California limited partnership - ------------------------------------------------------------------------------------------------------------------------------------ 3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: COMPLETE APPROPRIATE SUB-SECTION(S) CONTINUE ON SECOND PAGE. IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: - ------------------------------------------------------------------------------------------------------------------------------------ B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE: E. GENERAL PARTNER NAME CHANGE: ADDRESS: OLD NAME: CITY: STATE: ZIP CODE: NEW NAME: - ------------------------------------------------------------------------------------------------------------------------------------ C. CALIFORNIA OFFICE ADDRESS CHANGE: F. GENERAL PARTNER(S) WITHDRAWN: ADDRESS: NAME: SEE ATTACHED PAGE CITY: STATE: CA ZIP CODE: NAME: - ------------------------------------------------------------------------------------------------------------------------------------ D. GENERAL PARTNER ADDRESS CHANGE: G. GENERAL PARTNER ADDED: NAME: NAME: NAP Property Managers, a general partnership ADDRESS: ADDRESS: 3120 East Mission Boulevard CITY: STATE: ZIP CODE: CITY: ONTARIO, STATE: CA ZIP CODE: 91767 - ------------------------------------------------------------------------------------------------------------------------------------ H. PERSON(S) WINDING UP AFFAIRS OF LIMITED PARTNERSHIP: I. INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: NAME: NAME: ADDRESS: ADDRESS: CITY: STATE: ZIP CODE: CITY: STATE: CA ZIP CODE: - ------------------------------------------------------------------------------------------------------------------------------------ J. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE K. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED AND FILE CERTIFICATES OF AMENDMENT, RESTATEMENT, PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED DISSOLUTION, CONTINUATION, CANCELLATION AND MERGER IS PAGE(S). CHANGED TO: --- --- 1 NUMBER OF PAGES ATTACHED: 1 --- --- (PLEASE INDICATE NUMBER ONLY) ==================================================================================================================================== 4.IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED CERTIFICATE OF LIMITED PARTNERSHIP, WHICH EXECUTION IS MY (OUR) ACT AND ========================================= DEED. (SEE INSTRUCTIONS) THIS SPACE FOR FILING OFFICER USE NAP Properties, Ltd. 89 223 00028 BY: NAP Property Managers, a general partnership FILED In the office of the Secretary of State By: /s/ Illegible of the State of California - ------------------------------------------- ------------------------------------------ SIGNATURE SIGNATURE NOV - 1 1996 General Partner - ------------------------------------------- ------------------------------------------ /s/ BILL JONES POSITION OR TITLE DATE POSITION OR TITLE DATE ---------------------------------- BILL JONES, Secretary of State NAP Property Managers, a general partnership By /s/ Illegible ---------------------------------------- ------------------------------------------ SIGNATURE SIGNATURE General Partner - ------------------------------------------- ------------------------------------------ POSITION OR TITLE DATE POSITION OR TITLE DATE ======================================================================================== 5. RETURN ACKNOWLEDGEMENT TO: NAME Michael K. Inglis, Esq. ADDRESS Inglis, Ledbetter & Gower CITY 500 S. Grand Ave., #1800 STATE Los Angeles, CA 90071 ZIP CODE ======================================================================================== SEC/STATE REV. 1/93 FORM LP-2--FILING FEE: $15.00 __________________ ====================================================================================================================================
F. General Partners Withdrawn Scott T. O'Brien, David M. Holmes, Arlene Hamel and Neale A. Perkins 89 223 00028 State of California [SEAL] Secretary of State Bill Jones FILED AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP In the Office of the Secretary of State of the State of California SEP 21 2001 A $30.00 filing fee must accompany this form. IMPORTANT--Read instructions before completing this form. /s/ BILL JONES -------------------------------- BILL JONES, Secretary of State This Space For Filing Use Only - ---------------------------------------------------------------------------------------------------------------- 1. SECRETARY OF STATE FILE NUMBER 2. NAME OF LIMITED PARTNERSHIP 198922300028 NAP Properties, Ltd., a California Limited Partnership - ---------------------------------------------------------------------------------------------------------------- 3. COMPLETE ONLY THE BOXES WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED, IF NECESSARY. - ---------------------------------------------------------------------------------------------------------------- A. LIMITED PARTNERSHIP NAME (END THE NAME WITH THE WORDS "LIMITED PARTNERSHIP" OR THE ABBREVIATION "LP.") - ---------------------------------------------------------------------------------------------------------------- B. THE STREET ADDRESS OF THE PRINCIPAL OFFICE ADDRESS 1400 Marsh Landing Parkway #112 CITY Jacksonville STATE FL ZIP CODE 32250 - ---------------------------------------------------------------------------------------------------------------- C. THE STREET ADDRESS IN CALIFORNIA WHERE RECORDS ARE KEPT STREET ADDRESS CITY STATE CA ZIP CODE - ---------------------------------------------------------------------------------------------------------------- D. THE ADDRESS OF GENERAL PARTNER(S) NAME ADDRESS CITY STATE ZIP CODE - ---------------------------------------------------------------------------------------------------------------- E. NAME CHANGE OF A GENERAL PARTNER FROM: TO: - ---------------------------------------------------------------------------------------------------------------- F. GENERAL PARTNER(S) CESSATION - ---------------------------------------------------------------------------------------------------------------- G. GENERAL PARTNER ADDED NAME ADDRESS CITY STATE ZIP CODE - ---------------------------------------------------------------------------------------------------------------- H. THE PERSON(S) AUTHORIZED TO WIND UP AFFAIRS OF THE LIMITED PARTNERSHIP NAME ADDRESS CITY STATE ZIP CODE - ---------------------------------------------------------------------------------------------------------------- I. THE NAME OF THE AGENT FOR SERVICE OF PROCESS Corporation Service Company which will do business in California as CSC-Lawyers Incorporating Service - ---------------------------------------------------------------------------------------------------------------- J. IF AN INDIVIDUAL, CALIFORNIA ADDRESS OF THE AGENT FOR SERVICE OF PROCESS ADDRESS CITY STATE CA ZIP CODE - ---------------------------------------------------------------------------------------------------------------- K. NUMBER OF GENERAL PARTNERS' SIGNATURES REQUIRED FOR FILING CERTIFICATES OF AMENDMENT, RESTATEMENT, MERGER, DISSOLUTION, CONTINUATION AND CANCELLATION --- --- - ---------------------------------------------------------------------------------------------------------------- L. OTHER MATTERS (ATTACH ADDITIONAL PAGES, IF NECESSARY). - ---------------------------------------------------------------------------------------------------------------- 4. TOTAL NUMBER OF PAGES ATTACHED (IF ANY) 0 - ---------------------------------------------------------------------------------------------------------------- 5. I CERTIFY THAT THE STATEMENTS CONTAINED IN THIS DOCUMENT ARE TRUE AND CORRECT TO MY OWN KNOWLEDGE. I DECLARE THAT I AM THE PERSON WHO IS EXECUTING THIS INSTRUMENT, WHICH EXECUTION IS MY ACT AND DEED. NAP Property Managers, LLC, General Partner By: /s/ Armor Holding Properties, Inc. Member --------------------------------------------- ------------------------------------- POSITION OR TITLE PRINT NAME DATE By: /s/ Robert R. Schiller V.P. Robert R. Schiller --------------------------------------------- ------------------------------------- SIGNATURE POSITION OR TITLE PRINT NAME DATE - ---------------------------------------------------------------------------------------------------------------- SEC/STATE (REV. 10/98) FORM LP-2--FILING FEE: $30.00 Approved by Secretary of State - ----------------------------------------------------------------------------------------------------------------
EX-3.60 58 file057.txt LIMITED PARTNERSHIP AGREEMENT & AMENDMENTS THERETO LIMITED PARTNERSHIP AGREEMENT NAP PROPERTIES, LTD. A California Limited Partnership LIMITED PARTNERSHIP AGREEMENT TABLE OF CONTENTS Page ---- SECTION 1: DEFINITIONS 1.1 Affiliate ...................................................... 2 1.2 Allocations .................................................... 3 1.3 Assignee ....................................................... 3 1.4 Bankruptcy ..................................................... 3 1.5 Capital Account ................................................ 3 1.6 Internal Revenue Code .......................................... 3 1.7 Distributions .................................................. 4 1.8 Event of Dissolution ........................................... 4 1.9 General Partner ................................................ 4 1.10 Initial Limited Partner ........................................ 4 1.11 Invested Capital ............................................... 4 1.12 Limited Partner ................................................ 4 1.13 Majority for Voting Purposes (Limited Partners) ................ 4 1.14 Minimum Gain ................................................... 5 1.15 Net Income and Net Loss ........................................ 5 1.16 Net Proceeds From Operations ................................... 5 1.17 Net Proceeds From Sales or Refinancings ........................ 5 1.18 Partner ........................................................ 5 1.19 Partnership .................................................... 5 1.20 Percentage Interest ............................................ 5 1.21 Property ....................................................... 6 1.22 Reserves ....................................................... 6 1.23 Tax Matters Partner ............................................ 6 SECTION 2: ORGANIZATION 2.1 Authority To Do Business ....................................... 6 2.2 Certificate Of Limited Partnership ............................. 6 2.3 Purpose ........................................................ 6 2.4 Partnership Name ............................................... 7 2.5 Place Of Business .............................................. 7 2.6 Admission Of Limited Partners .................................. 7 2.7 Initial Limited Partner ........................................ 8 SECTION 3: TERM 3.1 Commencement ................................................... 8 3.2 Dissolution .................................................... 8 3.3 Continuation ................................................... 9 3.4 Authority To Wind Up ........................................... 10 SECTION 4: CAPITAL 4.1 Capital Contributions .......................................... 10 4.2 Additional Limited Partners .................................... 10 ii Table of Contents (Cont'd) 4.3 General Partner as Limited Partner ............................. 11 4.4 Capital Account ................................................ 11 4.5 Loans .......................................................... 13 4.6 Reserves ....................................................... 14 SECTION 5: ALLOCATIONS AND DISTRIBUTIONS 5.1 Net Income and Net Loss ........................................ 14 5.2 Distributions .................................................. 15 5.3 Dissolution .................................................... 15 5.4 Apportionment Among Partners ................................... 16 5.5 Allocation On Transfer of Interest in Partnership .............. 16 5.6 Return of Distributions ........................................ 16 SECTION 6: PARTNERSHIP EXPENSES 6.1 Direct Expenses ................................................ 17 6.2 Reimbursable Expenses .......................................... 17 SECTION 7: BOOKS AND RECORDS 7.1 Records ........................................................ 18 7.2 Delivery of Records to Limited Partner and Inspection .......... 19 7.3 Reports ........................................................ 20 7.4 Tax Returns .................................................... 20 7.5 Tax Matters Partner ............................................ 20 SECTION 8: CHANGES IN MEMBERSHIP 8.1 Additional Partners ............................................ 21 8.2 Transfer Restrictions of Partnership Interest .................. 22 8.3 Permitted Transfers of Partnership Interest .................... 23 8.4 Buy-Out Events ................................................. 23 8.5 Effect of Buy-Out Event ........................................ 25 8.6 Procedure for Sale and Purchase ................................ 26 8.7 Purchase Price ................................................. 28 8.8 Insurance Policies ............................................. 29 8.9 Payment and Transfer of Available Interest ..................... 30 8.10 Notes and Security ............................................. 32 SECTION 9: MANAGEMENT 9.1 Control In General Partner ..................................... 33 9.2 Acts and Voting of General Partner ............................. 35 9.3 Devotion of Time ............................................... 35 9.4 Indemnification of General Partner ............................. 35 9.5 Investment Opportunities ....................................... 36 9.6 Other Matters Concerning the General Partner ................... 36 iii Table of Contents (Cont'd) SECTION 10: LIMITED PARTNERS' VOTING RIGHTS AND MEETINGS 10.1 No Management and Control ...................................... 37 10.2 Voting Rights .................................................. 38 10.3 Limitations .................................................... 38 10.4 Meetings of Partners ........................................... 39 10.5 Voting Procedures .............................................. 39 10.6 Action Without a Meeting ....................................... 40 10.7 Waiver of California Corporations Code Section 15637 ........... 40 SECTION 11: GENERAL PARTNER'S WITHDRAWAL OR TERMINATION 11.1 Withdrawal or Termination ...................................... 41 11.2 Liability on Removal or Withdral ............................... 41 SECTION 12: SPECIAL POWER OF ATTORNEY 12.1 Attorney-In-Fact ............................................... 42 12.2 Special Provisions ............................................. 43 12.3 Signatures ..................................................... 43 SECTION 13: REORGANIZATION 13.1 Limited Partner Approval ....................................... 43 13.2 Incorporation .................................................. 44 13.3 Merger ......................................................... 44 13.4 Valuation ...................................................... 44 SECTION 14: MISCELLANEOUS 14.1 Amendments ..................................................... 45 14.2 Arbitration .................................................... 45 14.3 Attorneys Fees ................................................. 45 14.4 Capacity To Sign ............................................... 45 14.5 Counterparts ................................................... 45 14.6 Covenant To Sign Documents ..................................... 46 14.7 Cross-References ............................................... 46 14.8 Entire Agreement ............................................... 46 14.9 Gender and Number .............................................. 46 14.10 Governing Law .................................................. 46 14.11 Headings ....................................................... 46 14.12 Joint and Several Liability .................................... 47 14.13 Notices ........................................................ 47 14.14 No Waiver....................................................... 47 14.15 Severability ................................................... 48 14.16 Successors and Assigns ......................................... 48 iv Table of Contents (Cont'd) SIGNATURES General Partner ................................................ 48 Limited Partner ................................................ 48 v LIMITED PARTNERSHIP AGREEMENT OF NAP PROPERTIES, LTD., a California Limited Partnership This Limited Partnership Agreement ("Agreement") is made on August 11, 1989 between NEALE A. PERKINS ("Perkins"), ARLENE HAMEL ("Hamel") and DAVID M. HOLMES ("Holmes"), collectively, the "General Partner" or the "General Partners," and NEALE A. PERKINS, (the "Initial Limited Partner"). The General Partner and the Initial Limited Partner are sometimes referred to as the "Partners." R E C I T A L S A. All the Partners presently are employees of or affiliated with Safariland Ltd., Inc. a California corporation ("Safariland"), of which Perkins is the principal shareholder. B. The Partnership Property, as defined below, initially shall be leased to Safariland. 1 C. Except as otherwise provided in this Agreement or an amendment to it, the parties intend that Partnership interests will be held by Perkins and employees of or persons affiliated with Safariland (e.g., Holmes is legal counsel to and a member of the Executive Committee of Safariland). By this Agreement and with reference to the foregoing Recitals, the Partners join together to form a limited partnership under the California Revised Limited Partnership Act and agree to all the terms of this Agreement. SECTION 1 DEFINITIONS 1. When used in this Agreement, the following terms shall have the meanings stated in this Section, and not those stated in the California Revised Limited Partnership Act: 1.1 Affiliate. (a) A person directly or indirectly controlling, controlled by or under common control with another person; (b) a person owning or controlling 10% or more of the outstanding voting securities or beneficial interests of another person; (c) an officer, director or partner of another person. "Person" includes any natural person, partnership, corporation, association or other legal entity. Control includes the terms "controlled by" and "under common control with" and means the 2 possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. 1.2 Allocations. The Allocations of the Partnership's Net Income, Net Loss and other items of income loss, gain or credit, made for Federal income tax purposes and shown in the Partnership's Federal income tax return. 1.3 Assignee. A person who has acquired a beneficial interest in the Partnership from a Limited Partner in compliance with the terms of the Agreement but who is not a substituted Limited Partner. 1.4 Bankruptcy. Institution of any proceedings under Federal or State laws for relief of debtors, including the filing of a voluntary or involuntary petition under the Federal Bankruptcy Law; an adjudication as insolvent or bankrupt; an assignment of property for the benefit of creditors; the appointment of a receiver, trustee, or a conservator of any substantial portion of assets. Failure to obtain the dismissal of a proceeding under this Section or the removal of a conservator, receiver or trustee within 60 days after either event shall also be considered Bankruptcy. 1.5 Capital Account. As defined in Section 4.4. 1.6 Internal Revenue Code. The Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent 3 revenue laws. 1.7 Distributions. Cash or property distributed to Partners arising from their interests in the Partnership, other than payments to Partners for services or as repayment of loans. 1.8 Event of Dissolution. As defined in Section 3.2.1. 1.9 General Partner. The persons named above and referred to collectively as the General Partner and any person or persons who are successors to the named General Partners. 1.10 Initial Limited Partner. The person named above as the Initial Limited Partner, with the rights described in Section 2.7. 1.11 Invested Capital. The money contributed to the Partnership by a Partner as capital under Section 4.1, including contributions when this Partnership is formed and later contributions. 1.12 Limited Partner. The persons listed on the signature page as Limited Partners and any person who becomes a Limited Partner by substitution after receiving an assignment from a Limited Partner and the General Partner's consent. 1.13 Majority for Voting Purposes (Limited Partners. The Limited Partners collectively holding more than two-thirds of the Percentage Interest of all the Limited Partners. The definition of Majority supersedes and prevails over the Corporations Code Section 15611(1) definition of Majority. 4 1.14 Minimum Gain. The "Partnership Minimum Gain" as defined in Treasury Regulation Section 1.704-1(b). 1.15 Net Income and Net Loss. The Net Income or Net Loss of the Partnership for Federal income tax purposes, as determined by sound principles of tax accounting, as applied by the Partnership's accountants. 1.16 Net Proceeds From Operations. Gross Revenues generated by the Property and miscellaneous sources other than Net Proceeds From Sales or Refinancings, less cash expenditures, fees for services to the General Partner or any Affiliate of the General Partner, debt service, operating expenses, and amounts set aside for reserves. 1.17 Net Proceeds From Sales or Refinancings. Proceeds from a sale or refinancing of the Property after deducting expenses relating to the transaction and retention of reasonable reserves, or net condemnation proceeds, or insurance proceeds not used to rebuild or replace the affected property. 1.18 Partner. Any person who is a General Partner or a Limited Partner in the Partnership. 1.19 Partnership. The limited partnership formed by the Agreement. 1.20 Percentage Interest. A Partner's percentage interest as set forth on the signature page, unless modified under the Agreement; provided, it is the intent of the parties that the General Partner(s) collectively shall own a 90% 5 Percentage Interest and the Limited Partners collectively shall own a 10% Percentage Interest in the Partnership. 1.21 Property. The real property commonly known as approximately 5.64 acres located at the corner of Mission Boulevard and Turner Avenue in the City of Ontario, County of San Bernardino, California. 1.22 Reserves. A sum of money retained by the Partnership for contingencies, as described in Section 4.5. 1.23 Tax Matters Partner. A Partner as defined in Section 7.5. SECTION 2 ORGANIZATION 2.1 Authority To Do Business. The Partnership shall hold, operate, and manage the Property and enter into contracts and do business as a limited partnership. 2.2 Certificate of Limited Partnership. A Certificate of Limited Partnership ("Certificate") under California Corporations Code Section 15621 shall be prepared, signed by the General Partner and filed in the Office of the California Secretary of State. 2.3 Purpose. The purpose and activity of the Partnership shall be limited as stated in this Section. 2.3.1 The purpose of the Partnership is to purchase, manage, finance, refinance, and hold for investment and 6 disposition the Property. 2.3.2 Besides the primary purpose stated in Subsection 2.3.1, the Partnership may purchase any real or personal property, make any investment, and engage in any joint venture, general partnership, limited partnership, or other business activity proposed by the General Partner and not prohibited by law. 2.3.3 The Partnership may do all things necessary, in the General Partner's opinion and not prohibited by the Agreement or any law, to accomplish the purposes of the Partnership. 2.4 Partnership Name. The name of the Partnership shall be "NAP PROPERTIES, LTD., a California Limited Partnership" or such other name as the General Partner may choose. 2.5 Place of Business. The principal place of business for the Partnership shall be 1941 South Walker Avenue, Monrovia, California, 91016, or such other place as the General Partner may choose. 2.6 Admission of Limited Partners. Persons will be admitted as Limited Partners as follows: 2.6.1 Persons who have (a) signed the Agreement or a counterpart copy of the Agreement; (b) made the required payment of Invested Capital; and (c) been accepted by the General Partner to become Limited Partners. 2.6.2 Persons who purchase Limited Partnership 7 interests on the offering and issuing of additional interests after the initial organization of the Partnership shall be admitted and become Limited Partners according to the terms of the later offering and issuance. 2.6.3 The General Partner may establish additional reasonable rules and procedures for the admission of additional or substitute Limited Partners not otherwise inconsistent with this Agreement. 2.7 Initial Limited Partner. The Initial Limited Partner shall be a Limited Partner to the extent of the Invested Capital contributed by the Initial Limited Partner, provided that at the option of the General Partner or the Initial Limited Partner, exercisable by notice within 60 days of the admission of any other Limited Partner, the Initial Limited Partner's Invested Capital shall be returned and he or she shall no longer be a Limited Partner. SECTION 3 TERM 3.1 Commencement. The Partnership term shall begin on August 11, 1989, the date of filing of the Certificate with the Secretary of State. 3.2 Dissolution. 3.2.1 The Partnership shall dissolve on the earlier of December 31, 2015, or the occurrence of an Event of 8 Dissolution. Each of the following shall be an Event of Dissolution: (a) Sale of all or substantially all the Partnership's assets. (b) Ceasing of the General Partner to be a General Partner unless (i) at least one other General Partner remains, in which event the remaining General Partner shall continue the business of the Partnership or (ii) all Partners agree in writing to continue the business of the Partnership and to admit one or more General Partners. (c) Entry of a judicial decree of dissolution. 3.2.2 The occurrence of an Event of Dissolution shall dissolve the Partnership and the agency relationship between the Limited Partners and the General Partner. 3.2.3 After a dissolution, the Partnership's assets shall be liquidated and the proceeds distributed as provided in Section 5.3. 3.2.4 When appropriate, the General and Limited Partners shall file a Certificate of Dissolution, Certificate of Cancellation, or Certificate of Continuation. 3.3 Continuation. 3.3.1 On occurrence of an Event of Dissolution, the Limited Partners may continue the business of the Partnership in a new limited partnership on the same terms as in the Agreement and with a new General Partner elected by a Majority. 9 3.3.2 Despite Subsection 3.3.1, if the General Partner ceases to be a General Partner and there is no remaining or surviving General Partner, admission of a new General Partner or a decision to continue the business of the Partnership shall be approved by the affirmative vote of all the Limited Partners. Expenses incurred in the continuation, or attempted continuation, of the Partnership shall be considered expenses of the Partnership. 3.4 Authority To Wind Up. If the Partnership is dissolved and not reconstituted, the person designated by the Court decree or a vote of a Majority shall wind up the affairs of the Partnership and shall be entitled to compensation as approved by the Court or by a vote of a Majority. SECTION 4 CAPITAL 4.1 Capital Contributions. 4.1.1 Each Partner has contributed, or will contribute within 120 days of the date of this Agreement the amount shown next to his or her name on the signature page. 4.1.2 Limited Partners shall not be required to contribute additional capital. 4.2 Additional Limited Partners. Additional Limited Partners may be admitted to the Partnership at any time as 10 proposed by the General Partner and in accordance with Section 2.6. Additional Limited Partners shall be admitted effective as of the first day of the first calendar month after the month in which the additional Limited Partner has contributed Invested Capital. The additional Limited Partners' Percentage Interest shall be that set forth on the signature page of this Agreement or an amendment admitting the additional Limited Partner. 4.3 General Partner as Limited Partner. A General Partner shall also be a Limited Partner to the extent that the General Partner's contribution is identified as that of a Limited Partner in the Partnership records. 4.4 Capital Account. 4.4.1 Each Partner shall have a Capital Account, which shall be maintained in accordance with Treasury Regulation Section 1.704-1(b). The Capital Account for each Partner shall include that Partner's Invested Capital plus the Partner's allocations of Net Income (including income exempt from tax) and minus the Partner's allocations of Net Loss (including the Partner's share of any Partnership expenditures that may not be deducted, amortized, or capitalized for tax purposes) and share of Distributions. 4.4.2 "Adjusted Capital Account" shall mean the balance in a Partner's Capital Account as of the end of the taxable year after giving effect to the following adjustments: (a) increasing the Capital Account by any amounts that the 11 Partner is obligated to restore or is deemed to be obligated to restore under Treasury Regulation Section 1.704-1(b)(4)(iv)(f) and (b) decreasing the Capital Account by the items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4)-(6). 4.4.3 "Adjusted Capital Account Deficit" shall mean the deficit balance, if any, in a Partner's Adjusted Capital Account as of the end of the taxable year. This definition is intended to comply with and shall be interpreted to be consistent with Treasury Regulation Section 1.704-1(b)(2)(ii)(d). 4.4.4 If any Limited Partner unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), then items of Net Income shall be specifically allocated to that Limited Partner in an amount and manner sufficient to eliminate, to the extent required by the Regulation, the Adjusted Capital Account Deficit of that Limited Partner as quickly as possible. This Section is intended to comply with and shall be interpreted to be consistent with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d). 4.4.5 If there is a net decrease in Partnership Minimum Gain during any Partnership year, then each Limited Partner who would otherwise have an Adjusted Capital Account Deficit at the end of that year shall be specially allocated items of Net Income for that year (and, if necessary, subsequent years) in an amount and manner sufficient to eliminate the 12 Adjusted Capital Account Deficit as quickly as possible. This Section is intended to comply with and shall be interpreted to be consistent with the Minimum Gain chargeback requirements of Treasury Regulation Section 1.704-1(b)(4)(iv)(e). 4.4.6 To the extent an Allocation of Loss to a Limited Partner would cause the Limited Partner to have an Adjusted Capital Account Deficit, the Loss shall not be allocated to that Limited Partner and instead shall be allocated to the General Partner. 4.4.7 It is the intent of the Partnership that the Agreement comply with the terms and requirements of Treasury Regulation Section 1.704-1(b)(2)(ii)(d), including its provisions for the safe harbor test and the qualified income offset. Treasury Regulation Section 1.704-1(b)(2)(ii)(d) is incorporated by reference in the Agreement. If the Partnership determines that the Allocation provisions of the Agreement are unlikely to be respected for Federal income tax purposes, the General Partner shall have the authority to amend the Allocation provisions of the Agreement to the minimum extent necessary to effect the allocations and distributions plan of the Agreement. The General Partner shall have the authority, at its sole discretion, to adopt and revise rules, conventions, and procedures for admitting Limited Partners to reflect their interests in the Partnership at the close of the year. 4.5 Loans. Any funds over and above Invested Capital and 13 Net Proceeds from Operations or Refinancing necessary or proper to reasonably carry out the purposes of the Partnership may be loaned to it by the General Partner at then-prevailing interest rates for similar loans from third parties. 4.6 Reserves. Reserves in an amount reasonably determined by the General Partner shall be retained out of Invested Capital. When the Reserves are reduced, the General Partner may replace the Reserves out of Net Proceeds From Sales or Refinancings, Net Proceeds From Operations, or loans to the Partnership. Any Reserves remaining on dissolution of the Partnership shall be held until the final liquidation and then distributed to the Partners as Net Proceeds From Operation or Net Proceeds from Sale or Refinancing, respectively, according to the source of the Reserves. SECTION 5 ALLOCATIONS AND DISTRIBUTIONS 5.1 Net Income and Net Loss. Subject to Section 5.4, Net Income and Net Loss shall be allocated as follows: (a) 90% to the General Partner. (b) 10% to the Limited Partners. This allocation may be changed pro rata to the extent that all or a portion of the General Partners' interest in the Partnership becomes a Limited Partnership interest as provided in this Agreement, whereupon an appropriate amendment shall be made 14 hereto. 5.2 Distributions. Net Proceeds From Operations and, subject to first paying off loans to the Partnership from the Partners and, in the case of Dissolution, subject to Section 5.3, Net Proceeds From Sales and Refinancings shall be distributed at such time as the General Partner shall reasonably determine, as follows: (a) 90% to the General Partner. (b) 10% to the Limited Partners. 5.3 Dissolution. On dissolution of the Partnership without continuation, the General Partner shall wind up the Partnership's business, liquidate the assets, and apply the proceeds to: (a) payment of Partnership debts, including loans from the General Partner, expenses of the liquidation, except that on liquidation the debts owed to secured creditors shall be assumed or otherwise transferred; and (b) creation in a trust account of a reasonable reserve, as determined by the General Partner, for payment of contingent liabilities and expenses. The remaining proceeds shall be distributed as Net Proceeds >From Sales or Refinancings, except that any remaining proceeds representing previously undistributed Net Proceeds From Operations shall be distributed as Net Proceeds >From Operations. After passage of a reasonable time and payment of any contingencies arising in that time, the balance of the reserve shall be distributed to the Partners. If, after the liquidation and Distribution, any Partner would have a 15 negative Capital Account, any Net Income resulting from the liquidation shall first be allocated to that Partner in the amount of the deficit, and then to the Partners in proportion to their receipt, or their entitlement to receipt, of the proceeds for the liquidation. If, after these allocations, any Partner still has a negative Capital Account, the Partner shall contribute to the Partnership cash in the amount of the remaining deficit. 5.4 Apportionment Among Partners. The Net Income, Net Loss, and Distributions allocated to the Partners shall be apportioned among them according to their respective Percentage Interests. 5.5 Allocation on Transfer of Interest in Partnership. On the transfer of an interest in the Partnership, the distributive share of all items of income, gain, loss, deduction, or credit associated with that interest for the taxable year in which the transfer occurs shall be allocated between the transferor and the transferee according to the relative number of days in the year before and after the effective date of the transfer. 5.6 Return of Distributions. 5.6.1 Any distribution made to the Partners shall be considered to comply with all applicable law, including California Corporations Code Section 15666, if the Distribution is made from available Partnership assets. 5.6.2 If a Court of competent jurisdiction finds 16 that a Distribution violates California Corporations code Section 15666, the Limited Partners shall not be required to return their respective share of the Distribution made in violation of Section 15666. 5.6.3 Creditors of the Partnership shall be considered to have notice of the provisions of this Section and the fact that Limited Partners shall not be required to return a Distribution. SECTION 6 PARTNERSHIP EXPENSES 6.1 Direct Expenses. The Partnership shall pay all expenses of the Partnership including, without limitation, (a) all salaries, compensation, and fringe benefits of personnel employed by the Partnership and involved in the Partnership business; (b) all costs of borrowed money, taxes, and assessments on the Property and other taxes applicable to the Partnership; (c) legal, audit, accounting, consulting, Partnership-related travel expenses, and brokerage fees; (d) expenses and taxes incurred in the distribution, transfer, and recording of documents evidencing ownership of an interest in the Partnership or in the Partnership business; and (e) expenses for the repair, remodeling, leasing, refinancing, and operation of the Property. 6.2 Reimbursable Expenses. The Partnership shall reimburse 17 the General Partner or Affiliates for the actual cost of goods and materials used for or by the Partnership. The Partnership shall also pay or reimburse the General Partner or Affiliates for organization expenses incurred to form the Partnership. The organization expenses shall include, without limitation, legal and accounting fees. SECTION 7 BOOKS AND RECORDS 7.1 Records. The General Partner shall keep at its office in California at 1941 South Walker, Monrovia, California 91016, the following Partnership documents: (a) A current list of the full name and last known business or residence address of each Partner, together with each partner's contribution and share in profits and losses. (b) Copies of the Certificate of Limited Partnership and all Certificates of Amendment and executed copies of any powers of attorney under which any Certificate has been executed. (c) Copies of the Agreement and all Amendments to the Agreement. (d) Copies of the Partnership's Federal, State, and local income tax or information returns and reports, if any, for the six most recent tax years. (e) The Partnership's financial statements for the six 18 most recent tax years. (f) The Partnership's books and records for the current and past three tax years. (g) Instruments evidencing the transfer of outstanding Limited Partnership Interests. 7.2 Delivery of Records to Limited Partner and Inspection. 7.2.1 On the request of a Limited Partner, the General Partner shall promptly deliver to the requesting Limited Partner, at the expense of the Partnership, a copy of the information required to be maintained by Subsections (a)-(g) of Section 7.1. 7.2.2 Each Limited Partner has the right, on reasonable request, to: (a) Inspect and copy during normal business hours any of the Partnership records required to be maintained by Section 7.1; and (b) Obtain from the General Partner, promptly after they are available, a copy of the Limited Partnership's Federal, State, and local income tax or information returns for each year. 7.2.3 Despite anything to the contrary in this Agreement, Limited Partners shall not be entitled to inspect or receive copies of the following: (a) Internal memoranda of the General Partner, whether relating to Partnership matters or any other matters; 19 (b) Correspondence and memoranda of advice from attorneys for the Partnership or the General Partner; (c) Correspondence and memoranda of advice to or from accountants for the Partnership or the General Partner; and (d) Trade secrets and customer lists of the Partnership or the General Partner, investor information, financial statements of investors or Limited Partners, supplier lists, and similar and related materials, documents, and correspondence. 7.3 Reports. 7.3.1 The General Partner shall send to each Partner, within 90 days after the end of each tax year, the information necessary for the Partner to complete his or her Federal and State income tax or information returns. 7.3.2 If there are 35 or fewer Limited Partners, the General Partner shall send to each Partner within 90 days after the end of each tax year a complete copy of the Partnership's Federal, State, and local income tax or information returns for the year. 7.4 Tax Returns. The Partnership's tax or fiscal year shall be the calendar year. The Partnership's accountants shall be instructed to prepare and file all required income tax returns for the Partnership. The General Partner shall make any tax election necessary for completion of the Partnership tax return. 7.5 Tax Matters Partner. General Partner Holmes shall be 20 the Tax Matters Partner for purposes of Section 6231 (a) (7) of the Code, and shall have all the authority granted by the code to the Tax Matters Partner, to do all of the following: 7.5.1 Enter into a settlement agreement with the Internal Revenue Service that purports to bind Partners. 7.5.2 File a petition as contemplated in Section 6226(a) or Section 6228 of the Code. 7.5.3 Intervene in any action as contemplated in Section 6226(b)(5) of the Code. 7.5.4 File any request contemplated in Section 6227(b) of the Code. 7.5.5 Enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of the Code. SECTION 8 CHANGES IN MEMBERSHIP 8.1 Additional Partners. 8.1.1 Admission. A new Partner may be admitted to the Partnership by the written consent of a majority in interest of the General Partner. Each new Partner shall be admitted only upon executing this Agreement by an appropriate supplement to it containing the aforementioned consent of the General Partner, and agreeing to be bound by the terms and provisions of the Agreement as they may be modified by that supplement or other fully 21 executed supplements or amendments. Admission of a new Partner shall not cause dissolution or termination of the Partnership. 8.1.2 Interest of New Partner. A newly admitted Partner's capital contribution, Percentage Interest and share of the Partnership's profits or losses shall be set forth in the executed amendment or supplement to this Agreement which contains the consent of the General Partner to the admission of the new Partner. 8.1.3 Tax Election. The General Partner may, at its sole discretion, make an election under Section 754 of the Code to adjust the basis of the Partnership's assets, to reflect the purchase price by an assignee. 8.2 Transfer Restrictions of Partnership Interest. 8.2.1 General Restriction. Except for the special provision concerning Perkins' Partnership interest, no Partnership interest shall be transferred, encumbered or in any way alienated or disposed of except under the terms of this Agreement. 8.2.2 Nonrecognition of Certain Transfers. (a) The Partnership and its General Partner will not, nor be compelled to, recognize any transfer of a Partnership interest to any person who has not delivered to the General Partner an executed supplement to this Agreement agreeing to be bound by its terms and conditions. (b) The Partnership and its General Partner will not, nor be compelled to, recognize any transfer made other 22 than in accordance with the terms of this Agreement. 8.3 Permitted Transfers Of Partnership Interest. A Partner may transfer his Partnership interest to a grantor's inter vivos trust established exclusively for the benefit of the Partner and his spouse or issue. Such permitted transferees shall hold the Partnership interest subject to all the provisions of this Agreement as if they were original Partners; provided, should any of the Buy-Out Events set forth below occur with respect to a transferor Partner (e.g., death, disability, etc.), then the buy-out rights and obligations contained in this Agreement shall be fully applicable and a permitted transferee bound by them. 8.4 Buy-out Events Each of the following events shall constitute a "Buy-Out Event" affecting Partnership Interests: 8.4.1 Voluntary Sale. Except for Perkins, the intention of a Partner to sell all or a portion of his Partnership interest for a reason other than specified in the Buy-Out Events set forth below. In such event, the Effective Date shall be the date the Partner gives written intention to voluntarily sell his interest. 8.4.2 Resignation. Except for Perkins, the resignation by a Partner as an officer, director or employee or, in the case of Holmes as legal counsel and a member of the Executive Committee of Safariland. In such event, the Effective Date shall be the date of such resignation. 23 8.4.3 Retirement. Except for Perkins, the retirement of a Shareholder as an officer, director or employee or, in the case of Holmes as legal counsel and a member of the Executive Committee of Safariland. In such event, the Effective Date shall be the date of such retirement. 8.4.4 Termination of Employment. Except for Perkins, the good faith termination by the Board of Directors, in the best interest of Safariland, of a Partner as an officer, director or employee or, in the case of Holmes as legal counsel and a member of the executive Committee of Safariland. In such event, the Effective Date shall be the date of such termination. 8.4.5 Death. The death of a Partner. If the death is that of Perkins, his entire interest shall not constitute an offer to sell, shall immediately become a Limited Partnership interest, and the allocations and distributions percentage between the General Partner and the Limited Partners set forth in Section 5 shall be modified by amendment to this Agreement reducing the General Partner percentage and increasing the Limited Partners percentage by Perkins' percentage interest in the Partnership. In the event of death, the Effective Date shall be the date of death of the Partner. 8.4.6 Disability. Except for Perkins, the disability of a Partner for a continuous period of twenty-four (24) months. The term "disability" shall mean: "The Partner is not able to perform the substantial and material duties of his regular 24 occupation with and is not working in or for Safariland. In such event, the Effective Date shall be the first day following the expiration of the 24-month period. 8.4.7 Voluntary Bankruptcy. The filing by any Partner of a voluntary petition in bankruptcy or the making of an assignment for the benefit of creditors. In such event, the Effective date shall be the date of the filing of the petition or assignment, whichever is applicable. 8.4.8 Involuntary Bankruptcy. The filing against any Partner of an involuntary petition in bankruptcy and such petition is not dismissed within ninety (90) days of the filing. In such event, the Effective Date shall be the first day after the expiration of the 90-day period. 8.4.9 Dissolution of Marriage. The transfer or award of part or all of the Partnership interest of a Partner ("Divorced Partner") to his spouse under a decree of divorce or judgment of dissolution of marriage or separate maintenance, or under a property settlement or separation agreement; provided, only that portion of the interest subject to the transfer or award will be subject to the buy-out provision of this Agreement. In such event, the Effective Date shall be the date of the transfer or award, as the case may be. 8.5 Effect of Buy-Out Event. 8.5.1 Purchase of Partnership Interest. The occurrence of a Buy-out Event shall constitute the offer by the 25 separated, deceased, disabled, bankrupt or divorced Partner and/or, as the case may be, his spouse, personal representative, executor, or administrator, or the then-trustee of any trust which holds a deceased Partner's Partnership interest or is a party hereto (for convenience, all referred to as "Selling Partner"), to sell his Partnership interest to the other Partners ("Remaining Partners"). 8.5.2 Partnership Continues. The Partnership shall not dissolve or terminate on the occurrence of any Buy-Out Event, but its business shall continue without interruption and without any break in continuity. On the occurrence of a Buy-Out Event, the Remaining Partners shall not liquidate or wind up the affairs of the Partnership, except as otherwise provided in this Agreement, but shall continue to conduct a partnership under the terms of this Agreement with any successor or transferee of a Selling Partner. 8.5.3 Definition of "Available Interest". The term "Available Interest" shall refer to that Partnership interest which is subject to the effect of a Buy-out Event, it being expressly noted that Perkins' interest is not subject to specified Buy-Out Events. 8.6 Procedure for Sale and Purchase. The sale and purchase of an Available Interest shall be implemented as provided below. 8.6.1 Remaining Partners' Option to Purchase. For a period of 45 business days following the Effective Date of a Buy- 26 Out Event, the Remaining Partners shall have the option to purchase the Available Interest (by written Election to the Selling Partner) in the manner specified immediately below and in Sections 8.7 and 8.9 of this Agreement; provided, if the Buy-out Event is a Dissolution of Marriage, the Divorced Partner shall have the first right to purchase that portion of the Available Interest awarded to his spouse ("Awarded Interest") if practical or legally permissible; otherwise, the Divorced Partner shall have the right to purchase any Awarded Interest acquired by the Remaining Partners under this Agreement on the same terms and conditions as such Awarded Interest were acquired so long as the Divorced Partner exercises his right by written notice to the Remaining Partners within 20 days after they were acquired from the Divorced Partner's spouse (or her heirs, legal representatives, successors or assigns). (a) If the requests specified in all the Elections exceed the Available Interest, then each Remaining Partner shall have the right, up to the request each specified in his Election, to purchase such proportion of the Available Interest as his Partnership interest bears to the Partnership interests held by all the Partners electing to purchase. (b) On or before the end of the 45-day period, the Remaining Partners together shall determine what portion of the Available Interest was effective as to each Remaining Partner's Election and each Remaining Partner shall 27 meet the terms and conditions of the purchase within 10 days thereafter according to Sections 8.7 (Purchase Price), 8.9 (Payment For and Transfer of Available Interest) and 8.10 (Notes and Security). 8.6.2 Failure to Purchase All Available Interest. If all the Remaining Partners do not or are unable to purchase all the Available Interest, then all the Available Interest may be sold or transferred at any time to any third party within 90 days from the last date of the option periods provided in this Agreement. The transferee will hold the Available Interest subject to the provisions of this Agreement. No transfer of the Available Interest shall be made after the end of the 90-day period, nor shall any change in the terms of transfer be permitted, without a written Notice of Intention To Transfer first being given to the Remaining Partners in which case all the provisions of Section 8 shall be applicable. 8.7 Purchase Price. The Purchase Price for an Available Interest shall be determined by appraisal as follows: 8.7.1 Within 45 days after a Buy-Out Event, the Selling Partner and the Remaining Partners (as a group) either (1) shall jointly appoint an appraiser for this purpose, or (2) failing this joint action, shall each separately designate an appraiser and, within 5 days after their appointment, the two designated appraiser shall jointly designate a third appraiser. The failure of either the Selling Partner or the Remaining 28 Partners to appoint an appraiser within the time allowed shall be deemed equivalent to appointment of the appraiser appointed by the other party or parties. No person shall be appointed or designated an appraiser unless that person is then a member of the American Institute of Real Estate Appraisers or the American Society of Appraisers. 8.7.2 If, within 10 days after the appointment of all appraisers, a majority of the appraisers concur on the value of the interest being appraised, that appraisal shall be binding and conclusive. If a majority of the appraisers do not concur within that period, the determination of the appraiser whose appraisal is neither highest nor lowest shall be binding and conclusive. The Partnership and the Partner whose interest is to be appraised, or that Partner's estate or successors, shall share the appraisal expenses equally. 8.7.3 A Partner's interest in the Partnership so appraised shall be based on that Partner's proportional interest in the Partnership's profits. Real Estate shall be appraised at fair market value. 8.8 Insurance Policies. 8.8.1 Identification of Policies. In the event the parties hereto elect to obtain life insurance policies or disability buy-out insurance policies, or both, for the purpose of purchasing a deceased or disabled Partner's interest in the Partnership, then the parties shall execute an appropriate 29 amendment identifying those life insurance policies and/or disability insurance policies and the manner in which the proceeds of such policies are to be used for any such purpose. 8.8.2 Unneeded Life Insurance Policies. In the event life insurance has been purchased by the Partners on the lives of one another to fund the Buy-Out provisions of this Agreement, then on the death of any Partner each of the Remaining Partners shall have the option for 60 days to purchase the policy of life insurance on the Partner's life owned by the Decedent. Each Partner shall also have the right to purchase the policies on his life within 60 days after the sale or transfer of all of his Partnership interest, or after termination of this Agreement. This option shall be exercised by delivering written notice of exercise to the Decedent's personal representative or to the owner of the policy and paying the purchase price in cash. The purchase price shall be equal to the cash surrender value of the policy, reduced by any unpaid loans made against the policy. If the option is not exercised within that period, the policy owner may surrender the policy for its cash value or dispose of it in any other way he sees fit. The parties agree to execute such releases and assignments as may be necessary to effectuate the provisions of this paragraph. 8.9 Payment and Transfer of Available Interest. 8.9.1 General Provisions. On the occurrence of any event that leads to the purchase of an Available Interest under 30 this Agreement, the consideration to be paid for the Interest or portion thereof shall be paid to the Selling Partner, his estate, or his former spouse, as the case may be. If the event that leads to the purchase is death of any Partner, the Remaining Partners shall file the necessary proofs of death and collect the proceeds of any policies of insurance covered by this Agreement and outstanding on the life of the deceased Partner. The decedent's personal representative shall apply for and obtain any necessary Court approval or confirmation of the sale of the decedent's Interest under this Agreement. Likewise, the parties will perform all necessary acts to collect under any disability pay-out policies in the event of a Partner's disability. 8.9.2 Payment by Remaining Partners. The Remaining Partners shall pay the purchase price, or balance of the purchase price if insurance proceeds were first applied, in cash or, at their option, shall pay a cash payment of at least 10% of the purchase price or balance of the purchase price, as the case may be, with the remaining balance paid under a Promissory Note as more fully provided in Section 8.10 below. 8.9.3 Prompt Payment and Transfer of Available Interest. In all events, consideration for the Available Interest shall be delivered as soon as practicable to the person entitled to it, and the Remaining Partners shall cause the transfer of the Available Interest to be reflected in the Partnership books and records. 31 8.10 Notes and Security. 8.10.1 Form of Note. The deferred portion of the Purchase Price for any Available Interest purchased under this Agreement shall be represented by a Promissory Note executed by each of the purchasing Partners. The Note shall provide for payment of principal in 12 equal quarterly installments plus accrued interest on the unpaid balance at the maximum legal rate permitted by law but not to exceed the rate of 12% per annum, with full privilege of prepayment of all or any part of the principal at any time without penalty or bonus. Any prepaid sums shall be applied against the installments thereafter falling due in inverse order of their maturity, or against all the remaining installments equally, at the option of the payers. The Note shall provide that, in case of default, at the election of the holder the entire sum of principal and interest will immediately be due and payable, and that the makers shall pay reasonable attorney's fees to the holder in the event suit is commenced because of default. 8.10.2 Pledge of Partnership Interest. The Note shall be secured by a pledge of the Available Interest being purchased in the transaction to which the Note relates. The pledgeholder shall be either the Partnership's general counsel or, if such general counsel is un-willing or unable to act, such other third party as shall be agreed upon by the seller and purchaser, or purchasers, of the Available Interest. The Pledge Agreement 32 shall contain such other terms and provisions as may be customary and reasonable. As long as no default occurs in payments on the Note, the purchasers shall be entitled to all Partnership rights attached to the pledged Partnership interest; provided, however, any cash distributions shall be paid to the holder of the Note as a prepayment of principal. The purchasers shall expressly waive demand, notice of default, and notice of sale, and shall consent to public or private sale of the pledged Partnership Interest in the event of default, in mass or in lots at the option of the pledgeholder, and the seller shall have the right to purchase at the sale. SECTION 9 MANAGEMENT 9.1 Control in General Partner. Except as otherwise expressly stated in the Agreement, the General Partner shall have exclusive control over the Partnership's business, including the power to assign duties; sign deeds, notes, deeds of trust, contracts and leases; and assume direction of business operations. The General Partner shall have all the rights, power, and authority generally conferred by law or necessary, advisable, or consistent with accomplishing the Partnership's purposes. Without limiting the generality of the General Partner's powers, and subject to the applicable voting rights of the Limited Partners, the General Partner shall have the right 33 to: 9.1.1 Cause the Partnership to enter other partnerships as a general or limited partner and exercise the authority and perform the duties required of the Partnership as a partner in any other partnership. 9.1.2 Acquire, hold, and dispose of property or any interest in property, real or personal. 9.1.3 Borrow money on behalf of the Partnership, encumber Partnership assets, or place title in the name of a nominee for the purpose of obtaining financing. 9.1.4 Prepay in whole or in part, refinance, increase, modify, or extend any obligation. 9.1.5 Manage the Property and employ and supervise a property manager. 9.1.6 Employ from time to time, at the Partnership's expense, building management agents, other on-site personnel, insurance brokers, real estate brokers, loan brokers, consultants, accountants, and attorneys. 9.1.7 Pay all organization expenses incurred in the creation of the Partnership, and all operation expenses incurred in the operation of the Partnership. 9.1.8 Determine the amount and timing of Distributions. 9.1.9 Open and maintain Partnership bank accounts. 9.1.10 Assume the overall duties imposed on the 34 General Partner by the California Revised Limited Partnership Act. 9.1.11 Adopt and authorize a form of certificate to evidence the limited partnership interests. 9.2 Acts and Voting of General Partner. All acts permitted or required of the General Partner under this Agreement shall require the affirmative vote of a majority in interest of the General Partners and all contracts or all documents obligating the Partnership shall be signed by two of the General Partners, one of whom must be Perkins. 9.3 Devotion of Time. The General Partner is not obligated to devote full time to Partnership affairs. The General Partner may become involved in other businesses and occupations and other partnerships but shall devote to the Partnership an amount of time reasonably necessary to manage the Partnership business and perform the General Partner's duties. 9.4 Indemnification of General Partner. The Partnership, its receiver, or its trustee shall indemnify, hold harmless, and pay all costs, attorneys' fees, judgments, and amounts expended in the settlement of any claims against the General Partner, or its employees, agents, or assignees, arising from any liability, loss, or damage for acts performed or omitted to be performed by them in connection with the Partnership business, unless the loss, liability, or damage was caused by the indemnified person's gross negligence, fraud, or criminal act. 35 9.5 Investment Opportunities. Neither the General Partner nor any Affiliate of the General Partner shall be obligated to present any particular investment opportunity to the Partnership, even if the opportunity is of a character that, if presented to the Partnership, could be taken by the Partnership, and it shall have the right to take for its own account or to recommend to others any investment opportunity. 9.6 Other Matters Concerning the General Partner. 9.6.1 The General Partner shall be protected in relying on and acting, or refraining from acting, on any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. 9.6.2 The General Partner may execute any power granted or perform any duty imposed by this Agreement either directly or through agents, including, without limitation, any Affiliate. The General Partner may consult with counsel, accountants, appraisers, management consultants, investment bankers, and other consultants selected by it (who may serve as consultants for the Partnership or any Affiliate). An opinion by any consultant on a matter that the General Partner believes to be within its professional or expert competence shall be full and complete protection for any action taken or omitted by the General Partner based on the opinion and taken or omitted in good 36 faith. The General Partner shall not be responsible for the misconduct, negligence, acts, or omissions of any consultant or of any agent or employee of the Partnership, the General Partner, or an Affiliate and shall assume no obligations, other than to use due care in selecting all consultants. 9.6.3 All fees, commissions, compensation, and other consideration received by the General Partner or a partner, director, officer, or shareholder of the General Partner shall be the exclusive property of the recipient; and the Partnership shall have no right or claim to these receipts. The General Partner or a partner, director, officer, or shareholder of the General Partner may participate in any permitted agreement. This participation shall not constitute a breach of any duty that the participant owes to the Partnership, the Limited Partners, or Assignees under the Agreement or by operation of law. SECTION 10 LIMITED PARTNERS' VOTING RIGHTS AND MEETINGS 10.1 No Management and Control. Limited Partners shall take no part in the control, conduct, or operation of the Partnership and shall have no right or authority to act for or bind the Partnership, including during the winding-up period after dissolution of the Partnership, except that the Limited Partners may act for and bind the Partnership during the winding-up period 37 when the General Partner has been removed and their acts are first approved by a Majority. 10.2 Voting Rights. Limited Partners shall have the right, by vote of a Majority, to approve or disapprove matters as specifically stated in the Agreement, and no others. 10.2.1 Limited Partners shall have the right to vote on the following matters: (a) Election of a successor General Partner, subject to the unanimous vote requirements of Section 3.3.2; (b) Election of an additional General Partner; and (c) Termination and dissolution of the Partnership. 10.2.2 Besides the rights granted in the preceding Subsection 10.2.1, Limited Partners may vote to the extent and on the terms provided in the Agreement in the following Sections: (a) Section 3.4 on winding up the Partnership; (b) Section 4.1, Subsection 4.1.2 on additional contributions of capital; 10.2.3 Except as expressly provided in the Agreement, Limited Partners shall have no voting rights. 10.3 Limitations. No Limited Partner shall have the right or power to (a) withdraw or reduce its Invested Capital, except as a result of the dissolution of the Partnership or as otherwise provided by law; (b) bring an action for partition 38 against the Partnership; (c) cause the termination and dissolution of the Partnership, except as set forth in the Agreement; or (d) demand or receive property other than cash in return for its Invested Capital. Except as provided in the section on Distributions and Allocations, no Limited Partner shall have priority over any other Limited Partner either for the return of Invested Capital or for Net Income, Net Loss, or Distributions. Other than on dissolution of the Partnership as provided by the Agreement, no time has been agreed on when the contribution of each Limited Partner may be returned. A Partner's obligation to make a contribution or return money or property to the Partnership may be compromised by the General Partner's written consent. 10.4 Meetings of Partners. 10.4.1 Meetings of Partners shall be held at the principal place of business of the Partnership. 10.4.2 Meetings shall be held only when called by either the General Partner or Limited Partners representing more than 50% of the Percentage Interests of all the Limited Partners. 10.4.3 Meeting notices and procedures shall conform with California Corporations Code Section 15637. 10.5 Voting Procedures. A Limited Partner shall be entitled to cast votes in proporation to his or her Percentage Interest (a) at a meeting, in person, by written proxy, or by a signed writing directing the manner in which the vote is to be cast, which writing must be received by the General Partner 39 before the meeting; or (b) without a meeting, by a signed writing directing the matter in which the vote is to be cast, which writing must be received by the General Partner on or before the time and date on which the votes are to be counted. Only the votes of Limited Partners of record on the notice date, whether at a meeting or otherwise, shall be counted. The General Partners shall be entitled to vote their Percentage Interest for all matters in the same fashion as other Limited Partners. The laws of the State of California pertaining to the validity and use of corporate (or partnership, if applicable) proxies shall govern the validity and use of proxies given by Limited Partners. 10.6 Action Without a Meeting. Any action that may be taken at a meeting of the Limited Partners may be taken without a meeting if a consent in writing setting forth the action to be taken is signed by Limited Partners owning not less than the minimum percentage of interests that would be necessary to authorize or take such action at a meeting at which all the Limited Partners were present and voted. 10.7 Waiver of California Corporations Code Section 15637. The Partners waive the provisions of the California Corporations Code Section 15637, to the extent that Section 15637 requires any different procedures, time periods, or notices, whether substantive or not, for meetings of Limited Partners and voting by Limited Partners. Instead of any conflicting provisions of California Corporations Code Section 15637, the Partners 40 agree that the meetings and voting procedures for Limited Partners shall be governed by this Section. SECTION 11 GENERAL PARTNER'S WITHDRAWAL, OR TERMINATION 11.1 Withdrawal or Termination. A General Partner shall cease being a General Partner on the Effective Date of any of the Buy-out Events set forth in Section 8.4 or on his or her withdrawal, or upon dissolution and termination of the Partnership. 11.2 Liability on Removal or Withdrawal. A General Partner shall be discharged from, and the Partnership or any person or persons continuing the business of the Partnership if it has dissolved shall assume and pay, as they mature, all Partnership obligations and liabilities that exist on the date of the General Partner's withdrawal or termination from the Partnership and shall hold the General Partner harmless from any action or claim arising or alleged to arise from those obligations and liabilities accruing after that date. The Partnership or the persons continuing the business of the Partnership shall promptly pay all creditors of the Partnership as of that date or notify those creditors (a) of the General Partner's removal or withdrawal, (b) of the General Partner's discharge from all the Partnership's obligations and liabilities, and (c) of the 41 assumption thereof by the persons continuing the Partnership's business. The Partnership, or the persons continuing the business of the Partnership if the Partnership has dissolved, shall use its or their best efforts to procure and execute an agreement from the Partnership's creditors discharging the removed or withdrawing General Partner from liability to creditors as of the date of the removal or withdrawal. SECTION 12 SPECIAL POWER OF ATTORNEY 12.1 Attorney-in-Fact. Each Limited Partner grants each of the General Partners a special power of attorney irrevocably making, constituting, and appointing each General Partner as the Limited Partners' attorney-in-fact, with power and authority to act in its name and on its behalf to execute, acknowledge, and swear to in the execution, acknowledgment, and filing of documents, including, without limitation: 12.1.1 The certificate of limited partnership and any amendment to the certificate that, under the laws of the State of California or the laws of any other State, are required to be filed or that the General Partner elects to file; 12.1.2 Any other instrument or document required to be filed by the Partnership under the laws of any State or by any governmental agency, or that the General Partner elects to file; 42 and 12.1.3 Any instrument or document that may be required to effect the continuation of the Partnership, the admission of an additional or substituted Limited Partner, or the dissolution and termination of the Partnership (provided that the continuation, admission, or dissolution and termination are according to the terms of this Agreement), or to reflect any reduction in amount of the Partner's Invested Capital or reduction in the Partner's Capital Accounts. 12.2 Special Provisions. This special power of attorney (a) is a special power of attorney coupled with an interest, (b) is irrevocable, (c) shall survive the granting Limited Partner's death or incapacity, and (d) is limited to the matters stated in Section 12.1. 12.3 Signatures. Each of the General Partners may exercise the special power of attorney on behalf of each Limited Partner by a facsimile signature of the General Partner or by signature of the General Partner acting as an attorney-in-fact for all the Limited Partners. SECTION 13 REORGANIZATION 13.1 Limited-Partner Approval. Any reorganization described in this Section may be accomplished by the General 43 Partner's action without Limited-Partner approval. 13.2 Incorporation. The Partnership may be converted into a corporate form by (a) transfer of the Partnership's assets to a corporation and the issuance of shares in that corporation to the Partnership, (b) by transfer of the Partnership interests of all the Partners into a corporation in exchange for the shares of the corporation, or (c) by other means approved by counsel for the Partnership and the General Partner. 13.3 Merger. the Partnership's business may be merged into a corporation or another partnership, either alone or with other partnerships that may be affiliated with the General Partner. 13.4 Valuation. In determining the number of shares or the Partnership interest to be received by the Partners in a new entity following an incorporation or merger, (a) each Partner shall receive a percentage interest through stock ownership, Partnership interest, or other appropriate format and indicia of ownership in proportion among the Partners of this Partnership as nearly as practical equal to the proportion that they share under the Agreement; and (b) the value of the Partners' interests in this Partnership shall be the amount the Partners would receive Without regard to Federal or State income tax consequences after a sale at fair market value of the Partnership assets and a distribution of the Net Proceeds from Sales or Refinancings. 44 SECTION 14 MISCELLANEOUS 14.1 Amendments. The Agreement may not be altered or modified except by a writing signed by the General Partner. 14.2 Arbitration. Any controversy between the Partners involving the construction or application of any of the terms, covenants, or conditions of the Agreement shall be submitted to arbitration in Los Angeles, California, on the request of any Partner, and the arbitration shall comply with and be governed by the provisions of the commercial arbitration rules of the American Arbitration Association. 14.3 Attorneys' Fees. In any dispute between the Partners, whether or not resulting in litigation, the party substantially prevailing shall be entitled to recover from the other party all reasonable costs, including, without limitation, reasonable attorneys' fees. 14.4 Capacity To Sign. All Partners covenant that they possess all necessary capacity and authority to sign and enter this Agreement. 14.5 Counterparts. The Agreement may be signed in counterpart or duplicate copies, and any signed counterpart or duplicate copy shall be equivalent to a signed original for all purposes. 45 14.6 Covenant To Sign Documents. Each Partner shall execute, with acknowledgment or affidavit if required, all documents and writings reasonably necessary or expedient in the creation of the Partnership and the achievement of its purpose. 14.7 Cross-References. All cross-references in the Agreement, unless specifically directed to another agreement or document, refer to provisions within the Agreement and shall not be considered to be references to the overall transaction or to any other agreement or document. 14.8 Entire Agreement. The Agreement, which includes the Exhibits, contains all representations and the entire understanding and agreement among the parties. Correspondence, memorandums, and oral or written agreements that originated before the date of the Agreement are replaced in total by the Agreement unless otherwise expressly stated in the Agreement. 14.9 Gender and Number. As used in the Agreement, the masculine, feminine, or neuter gender, and the singular or plural number, shall include the others whenever the context indicates. 14.10 Governing Law. The Agreement shall be governed by and construed according to the laws of the State of California that would apply if all Partners were residents of California and the Agreement was made and performed in California. 14.11 Headings. The titles and headings of the various sections of the Agreement are intended solely for convenience of reference and are not intended to explain, modify, or place any 46 construction on any of the provisions of the Agreement. 14.12 Joint and Several Liability. The General Partners and coventurers of any Partner that is a partnership or joint venture shall be jointly and severally liable for all obligations of that Partner. 14.13 Notices. Unless otherwise expressly stated in the Agreement, any notices given under the Agreement shall be in writing and shall be served either personally or delivered by United States mail, postage prepaid registered or certified, return receipt requested. Notices may also effectively be given by transmittal over electronic transmitting devices, such as facsimile, Telex, telecopy machines, and computers if the party to whom the notice is being sent has such a device in its office, provided that a complete copy of any notice so transmitted shall also be mailed in the same manner as required for a mailed notice. Notices shall be considered received at the earlier of actual receipt or three days after deposit in United States mail, postage prepaid. Notices shall be directed to the addresses shown in the Partnership's books and records. Any Partner may change his or her address for notice purposes by giving notice to the Partnership under this Section, provided that the address change shall not be effective until 5 days after notice of the change. 14.14 No Waiver. A Partner's failure to insist on the strict performance of any covenant or duty required by the Agreement, or to pursue any remedy under the Agreement, shall hot 47 constitute a waiver of the breach or the remedy. 14.15 Severability. If any part of the Agreement is determined to be illegal or unenforceable, all other parts shall remain in effect. 14.16 Successors and Assigns. Subject to the restrictions on transferability contained in the Agreement, the Agreement and all its provisions shall be binding on and inure to the benefit of the successors and assigns of the Partners. IN WITNESS WHEREOF, the Partners have signed the Agreement effective as of the date first stated above. Name and Address Capital Contribution Percentage Interest - ------------------------------------------------------------------- General Partner: /s/ Neale A. Perkins - ---------------------- $4,616.67 92 1/3% NEALE A. PERKINS /s/ Arlene Hamel - ---------------------- $ 166.66 3 1/3% ARLENE HAMEL /s/ David M. Holmes - ---------------------- $ 166.67 3 1/3% DAVID M. HOLMES Limited Partner: /s/ Neale A. Perkins - ---------------------- $ 50.00 1 % NEALE A. PERKINS 48 FIRST AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT NAP PROPERTIES, LTD., a California Limited Partnership THIS FIRST AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("First Amendment") to that certain Limited Partnership Agreement of NAP PROPERTIES, LTD., a California limited partnership, dated August 11, 1989 ("Agreement"), is entered into by and between NEALE A. PERKINS ("Perkins"), ARLENE HAMEL ("Hamel") and DAVID M. HOLMES ("Holmes"), collectively, the "General Partner" or the "General Partners," and NEALE A. PERKINS, the "Initial Limited Partner." SCOTT T. O'BRIEN ("O'Brien") has executed this First Amendment as an additional General Partner and shall henceforth be one of the General Partners. The General Partner and the Initial Limited Partner are sometimes referred to as the "Partners." 1. Additional General Partner. SCOTT T. O'BRIEN shall become a General Partner of this Limited Partnership and hereby agrees to all the terms and conditions set forth in the Agreement. 2. Capital Contributions and Percentage Interest. The capital contributions and percentage interest shown on page 48 of the Agreement are amended as set forth below opposite the signatures of each party to this First Amendment. IN WITNESS WHEREOF, the Partners have signed this First Amendment effective as of December 4, 1989. Name and Address Capital Contribution Percentage Interest - ------------------------------------------------------------------------ General Partner /s/ Neale A. Perkins - ---------------------- $4,000.00 80% NEALE A. PERKINS 1941 S. Walker Avenue Monrovia, CA 91016 /s/ Arlene Hamel - ---------------------- $ 166.66 3 1/3% ARLENE HAMEL 1941 S. Walker Avenue Monrovia, CA 91016 SIGNATURES CONTINUED ON NEXT PAGE -1- /s/ Scott T. O'brien - ---------------------- $ 166.67 3 1/3% SCOTT T. O'BRIEN 1941 S. Walker Avenue Monrovia, CA 91016 /s/ David M. Holmes - ---------------------- $ 166.67 3 1/3% DAVID M. HOLMES 27281 Las Ramblas, Ste. 155 Mission Viejo, CA 92691 Limited partner: /s/ Neale A. Perkins - ---------------------- $ 500.00 10% NEALE A. PERKINS 1941 S. Walker Avenue Monrovia, CA 91016 -2- SECOND AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT NAP PROPERTIES, LTD., a California Limited Partnership THIS SECOND AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Second Amendment") to that certain Limited Partnership Agreement of NAP PROPERTIES, LTD., a California limited partnership, dated August 11, 1989 ("Agreement"), is entered into by and between NEALE A. PERKINS ("Perkins"), SCOTT T. O'BRIEN ("O'Brien"), ARLENE HAMEL ("Hamel") and DAVID M. HOLMES ("Holmes"), collectively, the "General Partner" or the "General Partners," and NEALE A. PERKINS, the "Initial Limited Partner." The General Partner and the Initial Limited Partner are sometimes referred to as the "Partners." 1. Section 9 (Management), Paragraph 9.2 (Acts and Voting of General Partner) is hereby revoked in its entirety and the following substituted in its place: "9.2 Acts and Voting of General Partner. All acts permitted or required of the General Partner under this Agreement shall require the affirmative vote of a majority in number of the General Partners and all contracts or all documents obligating the Partnership shall be signed by two of the General Partners." 2. There shall be added to Section 12 (Special Power Of Attorney) a new paragraph 12.4 which shall read as follows: "12.4 Attorney In Fact For General Partners. Any General Partner under this Agreement may appoint another General Partner of the Partnership his or her Attorney-In-Fact, to act in his or her place or stead in exercising and performing any rights (including, but not by limitation, voting rights), duties and. obligations of all kinds and nature which such General Partner may lawfully exercise or perform under the Agreement or pursuant to the -1- laws of the State of California." IN WITNESS WHEREOF, the Partners have signed this Second Amendment effective as of October 5, 1990. General Partner: /s/ Neale A. Perkins ---------------------------------------- NEALE A. PERKINS /s/ Arlene Hamel ---------------------------------------- ARLENE HAMEL /s/ Scott T. O'brien ---------------------------------------- SCOTT T. O'BRIEN /s/ David M. Holmes ---------------------------------------- DAVID M. HOLMES Limited Partner: /s/ Neale A. Perkins ---------------------------------------- NEALE A. PERKINS -2- THIRD AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF NAP PROPERTIES, LTD., a California Limited Partnership THIS THIRD AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Third Amendment") to that certain Limited Partnership Agreement of NAP PROPERTIES, LTD., a California limited partnership, dated August 11, 1989 ("Agreement"), is entered into by and between NEALE A. PERKINS ("Perkins"), SCOTT T. O'BRIEN ("O'Brien"), ARLENE HAMEL ("Hamel") and DAVID M. HOLMES ("Holmes"), collectively, the "General Partner" or "General Partners," and the individuals identified on the signature page below as the "Limited Partners." The General Partner and the Limited Partner are sometimes referred to as the "Partners." 1. Additional Limited Partners: Withdrawal of Initial Limited Partner. The individuals identified on the signature page of this Third Amendment as "Limited Partners" are admitted as limited partners to the Partnership for the Capital Contributions and Percentage Interest indicated opposite their respective signatures. Such admissions shall be deemed to comply with Paragraphs 2.6.1 and 8.1.1 of the Agreement. The Initial Limited Partner hereby withdraws pursuant to Paragraph 2.7 of the Agreement and shall be entitled to the return of his Capital Contribution. 2. Section 1 (Definitions), Paragraph 1.21 (Property) is deleted in its entirety and the following inserted in its place: "1.21 Property. The real property located at 3120 E. Mission Boulevard, City of Ontario, County of San Bernardino, State of California. 3. Section 8 (Changes In Membership), Paragraph 8.5.1 (Purchase of Partnership interest) is deleted in its entirety and the following inserted in its place: "8.5.1 purchase of Partnership Interest. The occurrence of a Buy-out Event shall constitute an offer to sell his or her Partnership Interest to the other Partners ("Remaining Partners") by the separated, deceased (except for Perkins but not his immediate successors), disabled, bankrupt or divorced -1- Partner and/or as the case may be, his spouse, personal representative, executor or administrator, or the then-trustee of any trust holding a deceased Partner's interest or who is a party hereto (for convenience, all referred to as "Selling Partner"). Provided, (i) if the Buy-out Event relates to a General Partner's interest then, subject to the special provisions concerning Perkins' interest, the "Remaining Partners" shall be the other General Partners; (ii) if the Buy-Out Event relates to a Limited Partner's interest (except such an interest held by the immediate successor or successors to Perkins' interest), then the "Remaining Partners" shall be the other Limited Partners; and (iii) if the Buy-out Event relates to the interest of a Limited Partner who is the immediate successor or successors to Perkins, then the Remaining Partners shall be all the Partners, both General and Limited." 4. Section 8 (changes In Membership), Paragraph 8.7 (Purchase Price) is deleted in its entirety and the following is inserted in its place: "8.7 Purchase Price. The Purchase Price for an Available Interest shall be determined as follows: 8.7.1 With 30 days after a Buy-out Event, the Selling Partner and the Remaining Partners (as a group) shall meet to unanimously agree upon a value for the Available Interest. Any such agreed value will be set forth in a writing dated and signed by all the Partners. 8.7.2 If an agree-to value is not reached by the end of the 30-day period provided in 8.7.1 above, then within 20 days after the end of the 30-day period, the Selling Partner and the Remaining Partners (as a group) either (1) shall jointly appoint an appraiser for this purpose, or (2) failing this joint action, shall each separately designate an appraiser and, within 5 days after their appointment, the two designated appraisers shall jointly designate a third appraiser. The failure of either the Selling Partner or the Remaining Partners to appoint an appraiser within the time allowed shall be deemed equivalent to appointment of the -2- appraiser appointed by the other party or parties. No person shall be appointed or designated an appraiser unless that person is then a member of the American Institute of Real Estate Appraisers or the American Society of Appraisers. The cost of any appraiser or appraisers shall be paid one-half by the Selling Partner and one-half by the Remaining Partners. 8.7.3 If, within 10 days after the appointment of all appraisers, a majority of the appraisers concur on the value of the interest being appraised, that appraisal shall by binding and conclusive (the appraisal of a single appraiser appointed under this Agreement shall likewise be binding and conclusive). If a majority of the appraisers do not concur within that period, the determination of the appraiser whose appraisal is neither highest nor lowest shall be binding and conclusive. The Partnership and the Partner whose interest is to be appraised, or that Partner's estate or successors, shall share the appraisal expenses equally. 8.7.4 A Partner's interest in the Partnership so appraised or with agree-to value shall be based on that Partner's proportional interest in the Partnership's profits. Real Estate shall be appraised at fair market value." 5. Section 8 (Changes In Membership), Paragraph 8.9 (Payment and Transfer of Available Interest) is deleted in its entirety and the following inserted in its place: "8.9 Payment and Transfer of Available Interest. 8.9.1 General Provisions. On the occurrence of any event that leads to the purchase of an Available Interest under this Agreement, the consideration to be paid for the Interest or portion thereof shall be paid to the Selling Partner, his estate, or his former spouse, as the case may be. If the event that leads to the purchase is death of any Partner, the Remaining Partners shall file the necessary proofs of death and collect the proceeds of any policies of insurance covered by this Agreement and outstanding on the life of the deceased Partner. The decedent's personal representative shall apply for and obtain any necessary Court approval or confirmation of the sale of the decedent's -3- Interest under this Agreement. Likewise, the parties will perform all necessary acts to collect under any disability pay-out policies in the event of a Partner's disability. 8.9.2 Payment by Remaining Partners. The remaining Partners shall pay the purchase price, or balance of the purchase price if insurance proceeds were first applied, in cash or, at their option, shall pay a cash payment of at least 50% if the purchase price or balance of the purchase price is $10,000 or less, 30% if between $10,001 and $20,000, 20% if between $20,001 and $30,000, and 10% if over $30,000, with the remaining balance paid under a Promissory Note as more fully provided in Section 8.10 below. 8.9.3 Prompt Payment and Transfer of Available Interest. In all events, consideration for the Available Interest shall be delivered as soon as practicable to the person entitled to it, and the Remaining Partners shall cause the transfer of the Available Interest to be reflected in the Partnership books and records." 6. Section 8 (Changes In Membership), Paragraph 8.10 (Notes and Securities) shall have Sub-paragraph 8.10.1 (Form of Note) is deleted in its entirety and the following inserted in its place: "8.10.1 Form of Note. The deferred portion of the Purchase Price for any Available Interest purchased under this Agreement shall be represented by a Promissory Note executed by each of the purchasing Partners. The Note shall provide for payment of principal in 2 equal quarterly installments if the principal balance is $5,000 or less, 4 equal quarterly installments if the principal balance is between $5,001 and $14,000, 8 equal quarterly installments if the principal balance is between $14,001 and $24,000 and 12 equal quarterly installments if the principal balance is over $24,000. Each installment of principal shall have added to it accrued interest on the unpaid balance at the maximum legal rate permitted by law but not to exceed the rate of 12% per annum, with full privilege of prepayment of all or any part of the principal at any time without penalty or bonus. Any prepaid sums shall be applied against the installments -4- thereafter falling due in inverse order of their maturity, or against all the remaining installments equally, at the option of the payers. The Note shall provide that, in case of default, at the election of the holder the entire sum of principal and interest will immediately be due and payable, and that the makers shall pay reasonable attorney's fees to the holder in the event suit is commenced because of default." IN WITNESS WHEREOF, the Partners have signed this Third Amendment effective as of January 1, 1991. Name and Address Capital Contribution Percentage Interest - ------------------------------------------------------------------------ General Partners: /s/ Neale A. Perkins $4,000.00 80.00000% - --------------------------- NEALE A. PERKINS 3120 E. Mission Boulevard Ontario, CA 91761 /s/ Arlene Hamel $ 166.66 3.33333% - --------------------------- ARLENE HAMEL 3120 E. Mission Boulevard Ontario, CA 91761 /s/ Scott T. O'Brien $ 166.67 3.33333% - --------------------------- SCOTT T. O'BRIEN 3120 E. Mission Boulevard Ontario, CA 91761 /s/ David M. Holmes $ 166.67 3.33333% - --------------------------- DAVID M. HOLMES 27281 Las Ramblas, Ste. 155 Mission Viejo, CA 92691 SIGNATURES CONTINUED ON NEXT PAGE -5- Limited Partners: /s/ Scott R. Carnahan $ 10.00 1.42857% - --------------------------- SCOTT R. CARNAHAN - --------------------------- /s/ James A. Estrada $ 10.00 1.42857% - --------------------------- JAMES A. ESTRADA - --------------------------- /s/ Donald E. Jeckell $ 10.00 1.42857% - --------------------------- DONALD E. JECKELL - --------------------------- /s/ David G. Ludt $ 10.00 1.42857% - --------------------------- DAVID G. LUDT - --------------------------- /s/ Stuart C. Moffitt $ 10.00 1.42857% - --------------------------- STUART C. MOFFITT - --------------------------- /s/ Leland F. O'Brien $ 10.00 1.42857% - --------------------------- LELAND F. O'BRIEN - --------------------------- /s/ Gary Ragusa $ 10.00 1.42857% - --------------------------- GARY RAGUSA - --------------------------- Initial Limited Partner: /s/ Neale A. Perkins - --------------------------- NEALE A. PERKINS 3120 E. Mission Boulevard Ontario, CA 91761 -6- FOURTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF NAP PROPERTIES, LTD., a California limited partnership (Effective August 20, 1996) THIS FOURTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Fourth Amendment") to that certain Limited Partnership Agreement of NAP Properties, Ltd., a California limited partnership, dated August 11,1989 ("Agreement") as authorized in Paragraph 14.1 of the Agreement, is made by and between Neale A. Perkins, Scott T. O'Brien and David M. Holmes, collectively, the "General Partner" or "General Partners." The following is to correct an oversight in not previously amendment the Agreement to reflect the following changes in ownership: 1. Effective January 1, 1994, Donald E. Jeckell's and James A. Estrada's respective limited partnership interests in the Partnership terminated. 2. Effective January 1, 1996, Arlene Hamel withdrew as a General Partner of the Partnership and her general partnership interest in the Partnership terminated and Stuart C. Moffitt's limited partnership interest in the Partnership terminated. IN WITNESS WHEREOF, the General Partners have signed this Fourth Amendment effective August 20, 1996. /s/ Neale A. Perkins ---------------------------------------- Neale A. Perkins /s/ Scott T. O'Brien ---------------------------------------- Scott T. O'Brien /s/ David M. Holmes ---------------------------------------- David M. Holmes FIFTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF NAP PROPERTIES, LTD., a California limited partnership (Effective October 9, 1996) THIS FIFTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Fifth Amendment") to that certain Limited Partnership Agreement of NAP Properties, Ltd., a California limited partnership, dated August 11,1989 ("Agreement") as authorized in Paragraph 14.1 of the Agreement, is made by and between Neale A. Perkins, Scott T. O'Brien and David M. Holmes, the General Partners of NAP Property Managers, a California general partnership, the General Partner of this Limited Partnership. This Agreement is amended to reflect that the General Partner is NAP Property Managers, LLC, a California limited liability company. IN WITNESS WHEREOF, the General Partners have signed this Fifth Amendment effective October 9, 1996. "General Partner" /s/ Neale A. Perkins ---------------------------------------- Neale A. Perkins /s/ Scott T. O'Brien ---------------------------------------- Scott T. O'Brien /s/ David M. Holmes ---------------------------------------- David M. Holmes SIXTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF NAP PROPERTIES, LTD., a California limited partnership (Effective May 6, 1999) THIS SIXTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Sixth Amendment") to that certain Limited Partnership Agreement of NAP Properties, Ltd., a California limited partnership, dated August 11,1989 ("Agreement") as authorized in Paragraph 14.1 of the Agreement, is made by and between Neale A. Perkins, Scott T. O'Brien and David M. Holmes, the General Partners of NAP Property Managers, LLC, a California limited liability company, the General Partner of this Limited Partnership. This Agreement is amended to reflect that the sole Limited Partner of this Partnership is the Neale A. Perkins Trust, Established March 13,1990, having acquired the following limited partnership interests this date: SCOTT R. CARNAHAN, 2.0%; DAVID G. LUDT, 2.0%; LELAND F. O'BRIEN, 2.0%; and GARY RAGUSA,2.0%. IN WITNESS WHEREOF, the General Partners have signed this Sixth Amendment effective May 6, 1999. "General Partner" NAP PROPERTY MANAGERS, LLC, a California limited liability company By: /s/ Neale A. Perkins ---------------------------------------- Neale A. Perkins, Trustee of the Neale A. Perkins Trust UTD 3/13/90, Member /s/ Patricia A. Perkins ---------------------------------------- Patricia A. Perkins, Member SEVENTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF NAP PROPERTIES, LTD., a California Limited Partnership (Effective as of May 20, 2000) THIS SEVENTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Seventh Amendment") to the certain Limited Partnership Agreement of NAP Properties, Ltd., a California limited partnership (the "Limited Partnership"), dated August 11, 1989 (the "Agreement") as authorized in Paragraph 14.1 of the Agreement, is made by ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation and the sole Managing Member of NAP PROPERTY MANAGERS, LLC, the sole General Partner of this Limited Partnership. This Agreement is amended and restated to reflect that the sole partners of the Limited Partnership are as follows: a) Armor Holdings Properties, Inc., as Limited Partner, having acquired the 8% partnership interest of the Neale A. Perkins Trust, Established March 13, 1990;and b) NAP PROPERTY MANAGERS, LLC, as General Partner, having a 92% partnership interest. NAP PROPERTY MANAGERS, LLC, General Partner By: ARMOR HOLDINGS PROPERTIES, INC., Managing Member By: /s/ Robert R. Schiller ------------------------------------ Name: Robert R. Schiller Title: Vice President EX-3.61 59 file058.txt ARTICLES OF ORGANIZATION OF NAP State of California Bill Jones [LOGO] Secretary of State LLC-1 LIMITED LIABILITY COMPANY ARTICLES OF ORGANIZATION IMPORTANT - Read the instructions before completing the form. This document is presented for filing pursuant to Section 17050 of the California Corporations Code. - ------------------------------------------------------------------------------------------------------------------------------------ 1. Limited liability company name: (End the same with "LLC" __ "Limited Liability Company". No periods between the letters in "LLC". "Limited" and "Company" may be abbreviated to "Ltd." and "Co.") NAP Property Managers LLC - ------------------------------------------------------------------------------------------------------------------------------------ 2. Latest date (month/day/year) on which the limited liability company is to dissolve: December 31, 2016 - ------------------------------------------------------------------------------------------------------------------------------------ 3. The purpose of the limited liability company is to engage in any lawful act or activity for which a limited liability company may be organized under the Beverly-Killea Limited Liability Company Act. - ------------------------------------------------------------------------------------------------------------------------------------ 4. Enter the name of initial agent for service of process and check the appropriate provision below: David M. Holmes --------------------------------------------------------------------------------------------------------------------, which is [X] an individual residing in California. Proceed to Item 5. [ ] a corporation which has filed a certificate pursuant to Section 1505 of the California Corporations Code. Skip Item 5 and proceed to Item 6. - ------------------------------------------------------------------------------------------------------------------------------------ 5. If the initial agent for service of process is an individual, enter a business or residential street address in California: Street address: 27281 Las Ramblas, Suite 155 City: Mission Viejo State: CALIFORNIA Zip Code: 92691 - ------------------------------------------------------------------------------------------------------------------------------------ 6. The limited liability company will be managed by: (check one) [ ] one manager [ ] more than one manager [XX] limited liability company members - ------------------------------------------------------------------------------------------------------------------------------------ 7. If other matters are to be included in the Articles of Organization attach one or more separate pages. Number of pages attached, if any: - ------------------------------------------------------------------------------------------------------------------------------------ 8. It is hereby declared that I am the person who For Secretary of State Use executed this instrument, which execution is my act and deed. 101 996 283028 /s/ Michael K. Inglis ----------------------------------------------------------- Signature of organizer FILED In the office of the Secretary of State Michael K. Inglis of the State of California ----------------------------------------------------------- Type or print name of organizer OCT - 9 1996 Date: October 8, 1996 /s/ BILL JONES BILL JONES, Secretary of State [SEAL] - -------------------------------------------------------------- LLC-1 Approved by the Secretary of State Filing Fee $70 1/96 - ------------------------------------------------------------------------------------------------------------------------------------
EX-3.62 60 file059.txt OPERATING AGREEMENT AND AMENDMENTS THERETO OF NAP Member-Managed Operating Agreement of NAP Property Managers, LLC, a California Limited Liability Company This Operating Agreement ("Agreement") is entered into this 9th day of October, 1996 by and among the signatories to this Agreement. Explanatory Statement NAP Property Managers, a California general partnership, and the individual general partners thereof, desire to convert and transform that general partnership into, and to become, a limited liability company under the laws of the State of California. Accordingly, the parties have agreed to conduct their activities as previously conducted under and as a general partnership, as a limited liability company in accordance with the terms and subject to the conditions set forth in this Agreement. It is further their intention that the limited liability company be taxed as a partnership for federal income tax purposes. NOW, THEREFORE, the parties agree as follows: Article I Defined Terms The following capitalized terms shall have the respective meanings specified in this Article I. Capitalized terms not defined in this Agreement shall have the meanings specified in the Act. "Act" means the Beverly-Killea Limited Liability Company Act (California Corporation Code Section 17000 et seq), as amended from time to time. "Adjusted Capital Account Deficit" means, with respect to any Interest Holder, the deficit balance, if any, in the Interest Holder's Capital Account as of the end of the relevant taxable year, after giving effect to the following adjustments: (I) the deficit shall be decreased by the amounts which the Interest Holder is obligated to restore pursuant to Section 4.4.2 or is deemed obligated to restore pursuant to Regulation Sections 1.704-1(b)(2)(ii)(c)) l.704-2(g), and 1.704-2(I)(5); and (ii) the deficit shall be increased by the items described in Regulation Sections 1.704-l(b)(2)(ii)(d)(4), (5), and (6). "Adjusted Capital Balance" means, as of any day, an Interest Holder's total Contributions less all amounts actually distributed to the Interest Holder pursuant to Section 4.2.3.4.1 and 4.4 -1- hereof. If any Interest is transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Adjusted Capital Balance of the transferor to the extent the Adjusted Capital Balance relates to the Interest transferred. "Affiliate" means (a) a Person directly or indirectly controlling, controlled by, or under common control with another Person; (b) a Person owning or controlling 10 percent or more of the outstanding voting securities or beneficial interests of another Person; (c) an officer, director, partner, or member of the immediate family of an officer, director or partner, of another Person; and/or (d) any affiliate of any such Person. "Agreement" means this Operating Agreement, as amended from time to time including each exhibit hereto. "Assignee" means the Person who has acquired an Economic Interest in the Company but is not a Member. "Capital Account" means the account to be maintained by the Company for each Interest Holder in accordance with the following provisions: (I) an Interest Holder's Capital Account shall be credited with the amount of money and the fair market value of any property contributed to the Company (net of liabilities secured by such property that the Company either assumes or to which such property is subject), the amount of any Company unsecured liabilities assumed by the Interest Holder, and the Interest Holder's distributive share of Profit and any item in the nature of income or gain specially allocated to the Interest Holder pursuant to the provisions of Section 4.3 (other than Section 4.3.3); and (ii) an Interest Holder's Capital Account shall be debited with the amount of money and the fair market value of any Company property distributed to the Interest Holder (net of liabilities secured by such distributed property that the Interest Holder either assumes or to which such property is subject), the amount of any unsecured liabilities of the Interest Holder assumed by the Company, and the Interest Holder's distributive share of Loss and any item in the nature of expenses or losses specially allocated to the Interest Holder pursuant to the provisions of Section 4.3 (other than Section 4.3.3). If any Interest is transferred pursuant to the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent the Capital Account is attributable to the transferred Interest. If the book value of Company property is adjusted pursuant to Section 4.3.3, the Capital Account of each Interest Holder shall be adjusted to reflect the aggregate adjustment in the same manner as if the Company had recognized gain or loss equal to the amount of such aggregate adjustment. It is intended that the Capital Accounts of all Interest Holders shall be maintained in compliance with the provisions of Regulation Section 1.704-l(b), and all provisions of this Agreement relating to the maintenance of Capital Accounts shall be interpreted and applied in a manner consistent with that Regulation. -2- "Capital Proceeds" means the gross receipts received by the Company from a Capital Transaction. "Capital Transaction" means any transaction not in the ordinary course of business which results in the Company's receipt of cash or other consideration other than Contributions, including, without limitation, proceeds of sales, exchanges, or other dispositions of property not in the ordinary course of business, financings, refinancings, condemnations, recoveries of damage awards, and insurance proceeds. "Cash Flow" means all cash derived from operations of the Company (including interest received on reserves), without reduction for any non-cash charges, but less cash used to pay current operating expenses and to pay or establish reasonable reserves for future expenses, debt payments, capital improvements, and replacements as determined by the Members. Cash Flow shall not include Capital Proceeds but shall be increased by the reduction of any reserve previously established. "Code" means the Internal Revenue Code of 1986, as amended, or any corresponding provision of any succeeding revenue law. "Company" means the limited liability company formed in accordance with this Agreement. "Contribution" means any money, property, or services rendered, or a promissory note or other binding obligation to contribute money or property, or to render services as permitted in this title, which a Member contributes to a Limited Liability Company as capital in that Member's capacity as a Member pursuant to an agreement between the Members, including an agreement as to value. "Economic Interest" means a person's right to share in the income, gains, losses, deductions, credit, or similar items of, and to receive Distributions from, the Company, but does not include any other rights of a Member including, without limitation, the right to Vote or to participate in management, or any right to information concerning the business and affairs of the Company. "Interest Holder" means any Person who holds an Economic Interest, whether as a Member or as an Assignee of a Member. "Involuntary Withdrawal" means, with respect to any Member, the occurrence of any of the events described in paragraph 6.1 other than 6.4.1. "Member" means any person who executes a counterpart of this Agreement as a Member and any Person who subsequently is admitted as a Member of the Company. -3- "Member Loan Nonrecourse Deductions" means any Company deductions that would be Nonrecourse Deductions if they were not attributable to a loan made or guaranteed by a Member within the meaning of Regulation Section 1.704-2(I). "Member Nonrecourse Debt Minimum Gain" has the meaning set forth in Regulation Section 1.704-2(I)(2) (determined by substituting "Member" or "Interest Holder" for "partner"). "Membership Interest" means a Member's rights in the Company, collectively, including the Member's Economic Interest, any right to vote or participate in management, and any right to information concerning the business and affairs of the Company. "Minimum Gain" has the meaning set forth in Regulation Section 1.704-2(d). Minimum Gain shall be computed separately for each Interest Holder in a manner consistent with the Regulations under IRC Section 704(b). "Negative Capital Account" means a Capital Account with a balance of less than zero. "Nonrecourse Deductions" has the meaning set forth in Regulation Section 1.704-2(b)(l). The amount of Nonrecourse Deductions for a taxable year of the Company equals the net increase, if any, in the amount of Minimum Gain during that taxable year, determined according to the provisions of Regulation Section l.704-2(c). "Nonrecourse Liability" has the meaning set forth in Regulation Section 1.704-2(b)(3). "Percentage" means, as to a Member, the percentage set forth after the Member's name on Exhibit A, as amended from time to time, and as to an Interest Holder who is not a Member, the Percentage or part of the Percentage that corresponds to the portion of a Member's Economic Interest that the Interest Holder has Acquired, to the extent the Interest Holder has succeeded to that Member's interest. "Person" means and includes an individual, corporation, partnership, association, limited liability company, limited liability membership, trust, estate, or other entity. "Positive Capital Account" means a Capital Account with a balance greater than zero. "Profit" and "Loss" means, for each taxable year of the Company (or other period for which Profit or Loss must be computed), the Company's taxable income or loss determined in accordance with IRC Section 703(a), with the following adjustments: (I) all items of income, gain, loss, deduction, or credit required to be stated separately pursuant to IRC Section 703(a)(l) shall be included in computing Profit and Loss; (ii) any tax-exempt income of the Company, not otherwise taken into account in -4- computing the Company's taxable income or loss, shall be included in computing Profit and Loss; (iii) any expenditures of the Company described in IRC Section 705(a)(2)(B) (or treated as such pursuant to Regulation Section l.704-l(b)(2)(iv)(I)) and not otherwise taken into account in computing the Company's taxable income or loss, shall be subtracted from Profit or Loss, as appropriate; (iv) gain or loss resulting from any taxable disposition of Company property shall be computed by reference to the book value as adjusted under Regulation Section 1.704-1(b) ("adjusted book value") of the property disposed of, notwithstanding the fact that the adjusted book value differs from the adjusted basis of the property for federal income tax purposes; (v) in lieu of the depreciation, amortization, or cost recovery deductions allowable in computing taxable income or loss, there shall be taken into account the depreciation computed based upon the adjusted book value of the asset; and (vi) notwithstanding any other provision of this definition, any items which are specially allocated pursuant to Section 4.3 shall not be taken into account in computing Profit or Loss. "Regulation" means the income tax regulations, including any temporary regulations, from time to time promulgated under the Code. "Secretary of State" means the Secretary of State of the State of California. "Transfer" means, when used as a noun, any sale, hypothecation, pledge, assignment, attachment, or other transfer, and, when used as a verb, to sell hypothecate, pledge, assign, or otherwise transfer. Article II Formation and Name; Office; Purpose; Term 2.1. Organization. The parties hereby organize a limited liability company pursuant to the Act and the provisions of this Agreement. The Company shall cause Articles of Organization to be prepared, executed, and filed with the Secretary of State. 2.2. Name of the Company. The name of the Company is NAP Property Managers, LLC, a California limited liability company. 2.3. Purpose. The Company is organized solely for the purpose of acting as the general member of NAP PROPERTIES, LTD., a California limited membership and to do all things necessary, convenient, or incidental to that purpose and to carry on any other business permitted by applicable law. 2.4. Term. The Company shall continue in existence until December 31, 2016, unless -5- sooner dissolved as provided by this Agreement or the Act. 2.5. Principal Place of Business. The Company's Principal Place of Business shall be located at 3120 East Mission Boulevard, Ontario, California or at any other place within the State of California which the Members select. 2.6. Resident Agent. The name and address of the Company's resident agent in the State of California is David M. Holmes, 27281 Las Ramblas, Suite 155, Mission Viejo, California 92691. 2.7. Members. The name, present mailing address, taxpayer identification number, and Percentage of each Member are set forth on Exhibit A. Article III Members; Capital; Capital Accounts 3.1. Initial Contributions. Upon the execution of this Agreement, the Members shall contribute to the Company capital as described in Exhibit A, namely, their respective general partnership interests in NAP Property Managers, a California general partnership which general partnership is converted into a California limited liability company by this operating agreement. 3.2. No Additional Contributions. No Member shall be required to contribute any additional capital to the Company, and no Member shall have personal liability for any obligation of the Company except as expressly provided by law. 3.3. No Interest on Contributions. Neither Members nor Interest Holders shall be paid interest with respect to Contributions. 3.4. Return of Contributions. Except as otherwise provided in this Agreement, no Member nor Interest Holder shall have the right to receive the return of any Contribution or withdraw from the Company, except upon the dissolution of the Company. 3.5. Form of Return of Capital. If a Member or an Interest Holder is entitled to receive the return of a Contribution, the Company may distribute in lieu of money, notes, or other, property having a value equal to the amount of money distributable to such Person. 3.6. Capital Accounts. A separate Capital Account shall be maintained for each Member and Interest Holder. 3.7. Loans and Other Business Transactions. Any Member may, at any time, make or cause a loan to be made to the Company in any amount and on those terms upon which the Company and the Member agree. Members may also transact other business with the Company and, in doing so, they shall have the same rights and be subject to the same obligations arising out -6- of any such business transaction as would be enjoyed by and imposed upon any Person, not a Member, engaged in a similar business transaction with the Company. Article IV Profit, Loss, and Distribution 4.1. Allocations of Profit or Loss and Distributions of Cash Other Than from Capital Transactions. 4.1.1. Profit or Loss Other Than from a Capital Transaction. After giving effect to the special allocations set forth in Section 4.3, for any taxable year of the Company, Profit or Loss (other than Profit or Loss resulting from a Capital Transaction, which Profit or Loss shall be allocated in accordance with the provisions of Sections 4.2.1 and 4.2.2) shall be allocated to the Interest Holders in proportion to their Percentages. 4.1.2. Cash Flow. Cash Flow for each taxable year of the Company shall be distributed to the Interest Holders in proportion to their Percentages not later than June 30 of the year following the taxable year. 4.2. Allocation of Profit or Loss from a Capital Transaction. After giving effect to the special allocations set forth in Section 4.3, Profit and Loss from a Capital Transaction shall be allocated as follows. For purposes of this Section 4.2, (a) Profit and Loss shall be allocated prior to reducing Capital Accounts by the distribution of the Proceeds from the Capital Transaction and (b) an Interest Holder's Capital Account shall be determined by crediting to each Interest Holder's Capital Account such Interest Holder's share of Minimum Gain and Member Nonrecourse Debt Minimum Gain remaining after such Capital Transaction. 4.2.1. Profit. Profit from a Capital Transaction shall be allocated among the Interest Holders in the following order of priority: 4.2.1.1. First, if one or more Interest Holders has a Negative Capital Account, to those Interest Holders, in proportion to their Negative Capital Accounts, until all of those Negative Capital Accounts have been reduced to zero. 4.2.1.2. Second, to the Interest Holders as necessary to cause each Interest Holder's Capital Account (after applying Section 4.2.1.1) to equal its respective Adjusted Capital Balance. 4.2.1.3. Third, any Profit in excess of the foregoing allocations shall be allocated to the Interest Holders in proportion to their Percentages. 4.2.2. Loss. Loss from a Capital Transaction shall be allocated among the Interest Holders in the following order of priority: -7- 4.2.2.1. First, to the Interest Holders, as necessary to cause the portion of their Capital Accounts, if any, exceeding their Adjusted Capital Balances, to be in the ratio of their Percentages. 4.2.2.2. Second, to the Interest Holders in proportion to their Percentages as necessary to eliminate the excess of their respective Capital Accounts (after applying Section 4.2.2.1) over their respective Adjusted Capital Balances. 4.2.2.3. Third, to the Interest Holders in proportion to their Adjusted Capital Balances until all Positive Capital Accounts (after applying Sections 4.2.2.1 and 4.2.2.2) have been reduced to zero. 4.2.2.4. Fourth, any Loss remaining shall be allocated to the Interest Holders in proportion to their Percentages. 4.2.3. Capital Proceeds. Except as provided in Section 4.4 with respect to the Distribution of Capital Proceeds derived in connection with liquidation of the Company, Capital Proceeds shall be distributed and applied by the Company in the following order and priority: 4.2.3.1. to the payment of all expenses of the Company incident to the Capital Transaction; then 4.2.3.2. to the payment of debts and liabilities of the Company then due and outstanding (including all debts due to any Interest Holder); then 4.2.3.3. to the establishment of any reserves which the Members deem necessary for liabilities or obligations of the Company; then 4.2.3.4. the balance shall be distributed as follows: 4.2.3.4.1. to the Interest Holders in proportion to their Adjusted Capital Balances, until their remaining Adjusted Capital Balances have been paid in full; 4.2.3.4.2. the balance, to the Interest Holders in proportion to their Percentages. 4.2.4. If there is insufficient Profit or Loss from a Capital Transaction to allocate to the Interest Holders pursuant to any subsection of Section 4.2 to cause every Interest Holder's Capital Account balance to equal the entire Capital Account balance described in such subsection with respect to such Interest Holder, Profit or Loss from a Capital Transaction available to be allocated among the Interest Holders pursuant to said subsection shall be allocated in proportion to the amounts thereof that would have been allocated to each Interest Holder pursuant to such subsection if there had been sufficient amounts thereof to fully satisfy the requirements of such -8- subsection with respect to every Interest Holder. 4.3. Regulatory Allocations. 4.3.1. Impermissible Deficit and Qualified Income Offset. No Interest Holder shall be allocated Losses or deductions if the allocation causes the Interest Holder to have an Adjusted Capital Account Deficit; instead, such items shall be allocated to the other Interest Holders. If an Interest Holder for any reason (whether or not expected) receives (1) an allocation of Loss or deduction (or item thereof) or (2) any Distribution, which causes the Interest Holder to have an Adjusted Capital Account Deficit at the end of any taxable year, then all items of income and gain of the Company (consisting of a pro rata portion of each item of Company income, including gross income and gain) for that taxable year shall be allocated to that Interest Holder, before any other allocation is made of Company items for that taxable year (other than an allocation under Section 4.3.2), in the amount and in proportions required to eliminate the excess as quickly as possible. This Section 4.3.1 is intended to comply with, and shall be interpreted consistently with, the "alternate test for economic effect" and "qualified income offset" provisions of the Regulations promulgated under IRC Section 704(b). 4.3.2. Minimum Gain Chargebacks. In order to comply with the "minimum gain chargeback" requirements of Regulation Sections 1.704-2(f)(l) and 1.704-2(I)(4), and notwithstanding any other provision of this Agreement to the contrary, in the event there is a net decrease in an Interest Holder's share of Minimum Gain and/or Member Nonrecourse Debt Minimum Gain during a Company's taxable year, such Interest Holder shall be allocated items of income and gain for that year (and if necessary, other years) as required by and in accordance with Regulation Sections 1.704-2(f)(l) and 1.704-2(I)(4) before any other allocation is made. It is the intent of the parties hereto that any allocation pursuant to this Section 4.3.2 shall constitute a "minimum gain chargeback" under Regulation Section 1.704-2(f) and 1.704-2(I)(4). 4.3.3. Contributed Property and Book-Ups. In accordance with IRC Section 704(C) and the Regulations thereunder, including Regulation Section l.704-l(b)(2)(iv)(d)(3), income, gain, loss, and deduction with respect to any property contributed (or deemed contributed) to the Company shall, solely for tax purposes, be allocated among the Interest Holders so as to take account of any variation between the adjusted basis of the property to the Company for federal income tax purposes and its fair market value at the date of Contribution (or deemed Contribution). If the adjusted book value of any Company asset is adjusted under Regulation Section 1.704-l(b)(2)(iv)(f), subsequent allocations of income, gain, loss, and deduction with respect to the asset shall take account any variation between the adjusted basis of the asset for federal income tax purposes and its adjusted book value in the manner required under IRC Section 704(C) and the Regulations thereunder. The parties hereto agree to use the traditional method with curative allocations, as described in Regulation Section 1.704-3(c), for making IRC Section 704(C) allocations. 4.3.4. IRC Section 754 Adjustment. To the extent an adjustment to the tax basis -9- of any Company asset pursuant to IRC Section 734(b) or IRC Section 743(b) is required, pursuant to Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of the adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases basis), and the gain or loss shall be specially allocated to the Interest Holders in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to that Section of the Regulations. 4.3.5. Nonrecourse Deductions. Nonrecourse Deductions for a taxable year or other period shall be specially allocated among the Interest Holders in proportion to their Percentages. 4.3.6. Member Loan Nonrecourse Deductions. Any Member Loan Nonrecourse Deduction for any taxable year or other period shall be specially allocated to the Interest Holder who bears the risk of loss with respect to the loan to which the Member Loan Nonrecourse Deduction is attributable in accordance with Regulation Section 1.704-2(I), 4.3.7. Guaranteed Payments. To the extent any compensation paid to any Interest Holder by the Company, including any fees payable to any Interest Holder pursuant to Section 5.3 hereof, is determined by the Internal Revenue Service not to be a guaranteed payment under IRC Section 707(C) or is not paid to the Interest Holder other than in the Person's capacity as a member (Interest Holder) within the meaning of IRC Section 707(a), the Interest Holder shall be specially allocated gross income of the Company in an amount equal to the amount of that compensation, and the Interest Holder's Capital Account shall be adjusted to reflect the payment of that compensation. 4.3.8. Unrealized Receivables. If an Interest Holder's Economic Interest is reduced (provided the reduction does not result in a complete termination of the Interest Holder's Interest), the Interest Holder's share of the Company's "unrealized receivables" and "substantially appreciated inventory" (within the meaning of IRC Section 751) shall not be reduced, so that, notwithstanding any other provision of this Agreement to the contrary, that portion of the Profit otherwise allocable upon a liquidation or dissolution of the Company pursuant to Section 4.4 hereof which is taxable as ordinary income (recaptured) for federal income tax purposes shall, to the extent possible without increasing the total gain to the Company or to any Interest Holder, be specially allocated among the Interest Holders in proportion to the deductions (or basis reductions treated as deductions) giving rise to such recapture. 4.3.9. Withholding. All amounts required to be withheld pursuant to IRC Section 1446 or any other provision of federal, state, or local tax law shall be treated as amounts actually distributed to the affected Interest Holders for all purposes under this Agreement. 4.3.10. Nonrecourse Liabilities. Solely for purposes of determining an Interest Holder's proportionate share of "excess nonrecourse liabilities" of the Company within the -10- meaning of Regulation Section 1.752-3(a)(3), the Interest Holders' interest in Company profits shall be based on their respective Percentages. 4.3.11. Intent of Allocations. The tax allocation provisions of this Agreement are intended to produce final Capital Account Balances of the Interest Holders that will permit liquidating distributions that are made in accordance with such final Capital Account Balances under Section 4.4.1 to be equal to the Distributions that would occur under Section 4.2.3.4 (in the same order and priority) if such liquidating proceeds were distributed pursuant to Section 4.2.3.4. To the extent that the tax allocation provisions of this Agreement would not produce such final Capital Account Balances, (1) such provisions shall be amended by the Members if and to the extent necessary to produce such result and (2) taxable income or taxable loss of the Company for prior open years (or items of gross income and deduction of the Company) shall be reallocated among the Interest Holders to the extent it is not possible to achieve such result with allocations of income (including gross income) and deduction for the current year and future years. This Section 4.3.11 shall control notwithstanding any reallocation or adjustment of taxable income, taxable loss, or items thereof by the Internal Revenue Service or any other taxing authority. 4.3.12. Income Tax Provisions. The Interest Holders are aware of the income tax consequences of this Article IV and agree to be bound by these provisions in reporting their shares of Profit, Losses, and other items for federal and state income tax purposes. 4.4. Liquidation and Dissolution. 4.4.1. Upon liquidation of the Company, the assets of the Company shall be distributed to the Interest Holders in accordance with the positive balances in their respective Capital Accounts, after giving effect to all Contributions, Distributions, and allocations for all periods. Distributions to the Interest Holders pursuant to this Section 4.4.1 shall be made in accordance with Regulation Section 1.704-l(b)(2)(ii)(b)(2). 4.4.2. No Interest Holder shall be obligated to restore a Negative Capital Account. 4.5. General. 4.5.1. Except as otherwise provided in this Agreement, the timing and amount of all Distributions shall be determined by the Members. 4.5.2. If any assets of the Company are distributed in kind to the Interest Holders, those assets shall be valued on the basis of their fair market value, and any Interest Holder entitled to any interest in those assets shall receive that interest as a tenant-in-common with all other Interest Holders so entitled. Unless the Members otherwise agree, the fair market value of the assets shall be determined by an independent appraiser who shall be selected by the Members. The Profit or Loss for each unsold asset shall be determined as if the asset had been sold at its fair -11- market value, and the Profit or Loss shall be allocated as provided in Section 4.2 and shall be properly credited or charged to the Capital Accounts of the Interest Holders prior to the Distribution of the assets in liquidation pursuant to Section 4.4. 4.5.3. All Profit and Loss shall be allocated and all distributions shall be made to the Persons shown on the records of the Company to have been Interest Holders as of the last day of the taxable year for which the allocation or Distribution is to be made. Notwithstanding the foregoing, unless the Company's taxable year is separated into segments, if there is a Transfer or an Involuntary Withdrawal during the taxable year, the Profit and Loss shall be allocated between the original Interest Holder and the successor on the basis of the number of days each was an Interest Holder during the taxable year; provided, however, the Company's taxable year shall be segregated into two or more segments in order to account for Profit, Loss, or proceeds attributable to a Capital Transaction or to any other extraordinary non-recurring items of the Company. 4.5.4. The Members are hereby authorized, upon the advice of the Company's tax counsel, to amend this Article IV to comply with the Code and the Regulations promulgated under IRC Section 704(b); provided, however, that no amendment shall materially affect Distributions to an Interest Holder without the Interest Holder's prior written consent. Article V Management: Rights, Powers, and Duties 5.1 Management. 5.1.1. Member Managed. The Company shall be managed by its members. 5.1.2. General Powers. The Members shall have full, exclusive, and complete discretion, power, and authority, subject in all cases to the other provisions of this Agreement and the requirements of applicable law, to manage, control, administer, and operate the business and affairs of the Company for the purposes herein stated, and to make all decisions affecting such business and affairs, including, without limitation, the power to: 5.1.2.1. acquire by purchase, lease, or otherwise, any real or personal property, tangible or intangible; 5.1.2.2. construct, operate, maintain, finance, and improve, and to own, sell, convey, assign, mortgage, or lease any real estate and any personal property; 5.1.2.3. sell, dispose, trade, or exchange Company assets in the ordinary course of the Company's business; 5.1.2.4. enter into agreements and contracts and to give receipts, releases, and discharges; -12- 5.1.2.5. purchase liability and other insurance to protect the Company's properties and business; 5.1.2.6. borrow money for and on behalf of the Company, and, in connection therewith, execute and deliver instruments authorizing the confession of judgment against the Company; 5.1.2.7. execute or modify leases with respect to any part or all of the assets of the Company; 5.1.2.8. prepay, in whole or in part, refinance, amend, modify, or extend any mortgages or deeds of trust which may affect any asset of the Company and in connection therewith to execute for and on behalf of the Company any extensions, renewals, or modifications of such mortgages or deeds of trust; 5.1.2.9. execute any and all other instruments and documents which may be necessary or in the opinion of the Members desirable to carry out the intent and purpose of this Agreement, including, but not limited to, documents whose operation and effect extend beyond the term of the Company; 5.1.2.10. make any and all expenditures which the Members, deem necessary or appropriate in connection with the management of the affairs of the Company and the carrying out of its obligations and responsibilities under this Agreement, including, without limitation, expenditures for legal, accounting, and other related expenses incurred in connection with the organization, financing, and operation of the Company; 5.1.2.11. enter into any kind of activity necessary to, in connection with, or incidental to, the accomplishment of the purposes of the Company; and 5.1.2.12. invest and reinvest Company reserves in short-term instruments or money market funds; 5.1.4. Limitation on Authority of Members. 5.1.4.1. No Member is an agent of the Company solely by virtue of being a Member, and no Member has authority to act for the Company solely by virtue of being a Member. 5.1.4.2. This Section 5.1 supersedes any authority granted to the Members pursuant to Section 17157 of the Act. Any Member who takes any action or binds the Company in violation of this Section 5.1 shall be solely responsible for any loss and expense incurred by the Company as a result of the unauthorized action and shall indemnify and hold the Company harmless with respect to the loss or expense. -13- 5.2. Meetings of and Voting by Members. 5.2.1. A meeting of the Members may be called at any time by those Members holding at least a Majority in Interest of the Members. Meetings of Members shall be held at the Company's principal place of business or at any other place in California, designated by the Person or Persons calling the meeting. Not less than ten (10) nor more than sixty (60) days before each meeting, the Person or Persons calling the meeting shall give written notice of the meeting to each Member entitled to Vote at the meeting. The notice shall state the time, place, and purpose of the meeting. Notwithstanding the foregoing provisions, each Member who is entitled to notice may waive notice, either before or after the meeting, by executing a waiver of such notice, or by appearing at and participating, in person or by proxy in the meeting. Unless this Agreement provides otherwise, at a meeting of Members, the presence in person or by Proxy of Members holding Percentages which aggregate to not less than the greater of fifty-one percent (51%) or the minimum percentage required by law, constitutes a quorum. A Member may Vote either in person or by written Proxy signed by the Member or by the Member's duly authorized attorney in fact; but no Member may designate another as his Proxy except another Member, except for any Member that is a trust, may designate a trustee of the trust as its Proxy, any Corporate Member may designate an officer of that Corporate Member, and any membership, limited liability company, limited liability membership or association may designate a Member or Member (as appropriate) as its Proxy. 5.2.2. Except as otherwise provided in this Agreement, the affirmative Vote of Members holding a majority of the aggregate Percentages present at the meeting in person and by proxy shall be required to approve any matter coming before the Members. 5.2.3. In lieu of holding a meeting, the Members may take action by written consents specifying the action to be taken, which consents must be executed and delivered to the Company by Members whose combined Voting Power constitutes not less than the greater of 50% of the total Voting Power of all Members or the minimum percentage required by applicable law. Any such approved action shall be effective immediately. The Company shall give prompt notice to all Members of any action approved by Members by less than unanimous consent. 5.2.4. Notwithstanding any other provision of this Agreement to the contrary, the following matters shall require the Vote or consent of the percentage interest of Members indicated after each such item for such action to be approved by the Members: (a) A decision to continue the business of the Company after dissolution of the Company (100%); (b) Approval of the transfer of a Membership Interest and admission of an Assignee as a Member (100%); (c) An amendment to the Articles of Organization or this Agreement -14- (100 %); 5.3. Personal Service. 5.3.1. No Member shall be required to perform services for the Company solely by virtue of being a Member. Unless approved by the Members, no Member shall perform services for the Company or be entitled to compensation for services performed for the Company. 5.3.2. The Members shall be entitled to reimbursement for expenses reasonably incurred, and advances reasonably made, in furtherance of the business of the Company upon substantiation of the amount and purpose therefor. 5.4. Duties of Parties. 5.4.1. The Members shall only devote such time to the business and affairs of the Company as is necessary to carry on the business of the Company set forth in this Agreement. 5.4.2. Except as otherwise expressly provided in Section 5.4.3, nothing in this Agreement shall be deemed to restrict in any way the rights of any Member, or of any Affiliate of any Member, to conduct any other business or activity whatsoever, and no Member shall be accountable to the Company or to any other Member with respect to that business or activity even if the business or activity competes with the Company's business. The organization of the Company shall be without prejudice to the Members' respective rights (or the rights of their respective Affiliates) to maintain, expand, or diversify such other interests and activities and to receive and enjoy profits or compensation therefrom. Each Member waives any rights the Member might otherwise have to share or participate in such other interests or activities of any other Member or the Member's Affiliates. 5.4.3. The only fiduciary duties a Member owes to the Company and the other Members are the duty of loyalty and the duty of care set forth in subdivisions (a) and (b): (a) A Member's duty of loyalty to the Company and the other Members is limited to the following: (1) To account to the Company and hold as trustee for it any property, profit, or benefit derived by the Member in the conduct or winding up of the Company's business or derived from a use by a Member of Company property, including the appropriation of a Company opportunity, without the consent of the other Members; (2) To refrain from dealing with the Company in the conduct or winding up of the Company business as or on behalf of a party having an interest adverse to the Company without the prior, written consent of all other Members; and -15- (b) A Member's duty of care to the Company and the other Members in the conduct and winding up of the Company business is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. 5.5. Indemnification of Each Member. 5.5.1. No member shall be liable, responsible, or accountable, in damages or otherwise, to any other Member or to the Company for any act performed by such Member within the scope of the authority conferred by this Agreement or by the other Members, and within the standard of care specified in Section 5.5.2. 5.5.2. The Company shall indemnify each Member for any act performed by the Member within the scope of the authority conferred on the Member by this Agreement or by the other Members, unless such act constitutes grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. 5.6. Power of Attorney. 5.6.1. Grant of Power. Each Member constitutes and appoints David M. Holmes as the Member's true and lawful attorney-in-fact ("Attorney-in-Fact"), and in the Member's name, place, and stead, to make, execute, sign, acknowledge, and file: 5.6.1.1. one or more Articles of Organization; 5.6.1.2. all documents (including amendments to Articles of Organization) which the Attorney-in-Fact deems appropriate to reflect any amendment, change, or modification of this Agreement; 5.6.1.3. any and all other certificates or other instruments required to be filed by the Company under the laws of the State of California or of any other state or jurisdiction, including, without limitation, any certificate or other instruments necessary in order for the Company to continue to qualify as a limited liability company under the laws of the State of California; 5.6.1.4. one or more fictitious trade name certificates; and 5.6.1.5. all documents which may be required to dissolve and terminate the Company and to cancel its Articles of Organization. 5.6.2. Irrevocability. The foregoing power of attorney is irrevocable and is coupled with an interest, and, to the extent permitted by applicable law, shall survive the death or disability of a Member. It also shall survive the Transfer of a Membership Interest, except that -16- if the Assignee is admitted as a Member, this power of attorney shall survive the delivery of the assignment for the sole purpose of enabling the Attorney-in-Fact to execute, acknowledge, and file any documents needed to effectuate the substitution. Each Member shall be bound by any representations made by the Attorney-in-Fact acting in good faith pursuant to this power of attorney, and each Member hereby waives any and all defenses which may be available to contest, negate, or disaffirm the action of the Attorney-in-Fact taken in good faith under this power of attorney. Article VI Transfer of Interests and Withdrawals of Members 6.0. Investment Representation. Each Member agrees that the interest being acquired is being acquired for investment and not for the purpose of, or with a view to the distribution or sale thereof. Except as provided herein, no Member may Transfer all, or any portion of, or any interest or rights in, the Membership Interest owned by the Member. Each Member hereby acknowledges the reasonableness of this prohibition in view of the purposes of the Company and the relationship of the Members. The attempted Transfer of any portion or all of a Membership Interest in violation of the prohibition contained in this Section 6.1 shall be deemed invalid, null and void, and of no force or effect, except any Transfer mandated by operation of law and then only to the extent necessary to give effect to such Transfer by operation of law. 6.0.1. Conditions to Transfer. A Member may Transfer all or any portion of or any interest or rights in the Member's Economic Interest if each of the following conditions ("Conditions of Transfer") is satisfied: 6.0.1.1. the Transfer may be accomplished without registration, or similar process, under federal and state securities laws; 6.0.1.2. the transferee delivers to the Company a written agreement to be bound by the terms of Article VI of this Agreement; 6.0.1.3. the Transfer will not result in the termination of the Company pursuant to IRC Section 708; 6.0.1.4. the Transfer will not result in the Company being subject to the Investment Company Act of 1940, as amended; 6.0.1.5. the transferor or the transferee delivers the following information to the Company: (I) the transferee's taxpayer identification number; and (ii) the transferee's initial tax basis in the transferred Membership Interest; and 6.0.1.6. the transferor complies with the provisions set forth in this Article VI. -17- If the Conditions of Transfer are satisfied, the Member may Transfer all or any portion of the Member's Economic Interest. The Transfer of an Economic Interest pursuant to this Section 6.0 shall not result in the Transfer of any of the transferor's other Membership rights. The transferee of the Economic Interest shall have no right to: (I) become a Member; (ii) exercise any Membership rights other than those specifically pertaining to the ownership of an Economic Interest; or (iii) act as an agent of the Company. 6.1 Additional Members. 6.1.1 Admission. A new Member may be admitted to the Membership by the written consent of all of the Members. Each new Member shall be admitted only upon executing this Agreement by an appropriate supplement to it containing the aforementioned consent of the Members, and agreeing to be bound by the terms and provisions of the Agreement as they may be modified by that supplement or other fully executed supplements or amendments. Admission of a new Member shall not cause dissolution or termination of the Company. 6.1.2 Interest of New Member. A newly admitted Member's capital contribution, Percentage Interest and share of the Company's profits or losses shall be set forth in the executed amendment or supplement to this Agreement which contains the consent of the other Members to the admission of the new Member. 6.1.3 Tax Election. The Members may, at their sole discretion, make an election under Section 754 of the Code to adjust the basis of the Company's assets, to reflect the purchase price by an assignee. 6.2 Transfer Restrictions of Membership Interest. 6.2.1 General Restriction. Except for the special provision concerning Perkins' Membership interest, no Membership interest shall be transferred, encumbered, or in any way alienated or disposed of except under the terms of this Agreement. 6.2.2 Nonrecognition of Certain Transfers. (a) The Company and its Members will not, nor be compelled to, recognize any transfer of a Membership interest to any person who has not delivered to the Company an executed supplement to this Agreement agreeing to be bound by its terms and conditions. (b) The Company and its Members will not, nor be compelled to, recognize any transfer made other than in accordance with the terms of the Agreement. -18- 6.3 Permitted Transfers of Membership Interest. A Member may transfer his Economic Interest to a grantor's inter vivos trust established exclusively for the benefit of the Member and his spouse or issue. Such permitted transferees shall hold the Economic Interest subject to all the provisions of this Agreement as if they were original Membership; provided, should any of the Buy-Out Events set forth below occur with respect to a transferor Member (e.g., death, disability, etc.), then the buy-out rights and obligations contained in this Agreement shall be fully applicable and a permitted transferee bound by them. 6.4 Buy-Out Events. Each of the following events shall constitute a "Buy-Out Event" affecting Membership Interests: 6.4.1 Voluntary Sale. Except for Perkins, the intention of a Member to sell all or a portion of his Membership interest for a reason other than specified in the Buy-Out Events set forth below. In such event, the Effective Date shall be the date the Member gives written intention to voluntarily sell his interest. 6.4.2 Resignation. Except for Perkins, the resignation by a Member as an officer, director or employee or, in the case of Holmes as legal counsel and a member of the Executive Committee of, Safariland Ltd, Inc.("Safariland"). In such event, the Effective Date shall be the date of such resignation. 6.4.3 Retirement. Except for Perkins, the retirement of a Shareholder as an officer, director or employee or, in the case of Holmes as legal counsel and a member of the Executive Committee of, Safariland. In such event, the Effective Date shall be the date of such retirement. 6.4.4 Termination of Employment. Except for Perkins, termination by the Board of Directors of a Member as an officer, director, or employee or, in the case of Holmes as legal counsel and a member of the Executive Committee, of Safariland. In such event, the Effective Date shall be the date of such termination. 6.4.5 Death. The death of a Member. If the death is that of Perkins, his entire interest shall held and distributed by his estate. In the event of death, the Effective Date shall be the date of death of the Member. 6.4.6 Disability. Except for Perkins, the disability of a Member for a continuous period of twenty-four (24) months. The term "disability" shall mean the Member is not able to perform the substantial and material duties of his regular occupation with and is not working in or for Safariland. In such event, the Effective Date shall be the first day following the expiration of the 24-month period. 6.4.7 Voluntary Bankruptcy. The filing by any Member of a voluntary petition in bankruptcy or the making of an assignment for the benefit of creditors. In such event, the -19- Effective Date shall be the date of the filing of the petition or assignment, whichever is applicable. 6.4.8 Involuntary Bankruptcy. The filing against any Member of an involuntary petition in bankruptcy and such petition is not dismissed within ninety (90) days of the filing. In such event, the Effective Date shall be the first day after the expiration of the 90-day period. 6.4.9 Dissolution of Marriage. The transfer or award of part or all of the Membership interest of a Member ("Divorced Member") to his spouse under a decree of divorce or judgment of dissolution of marriage or separate maintenance, or under a property settlement or separation agreement; provided, only that portion of the interest subject to the transfer or award will be subject to the buy-out provision of this Agreement. In such event, the Effective Date shall be the date of the transfer or award, as the case may be. 6.5 Effect of Buy-Out Event. 6.5.1 Purchase of Membership Interest. The occurrence of a Buy-Out Event shall constitute the offer by separated, deceased, disabled, bankrupt or divorced Member and/or, as the case may be, his spouse, personal representative, executor, or administrator, or the then-trustee of any trust which holds a deceased Member's Membership interest or is a party hereto (for convenience, all referred to as "Selling Member"), to sell his Membership interest to the other Members ("Remaining Members"). 6.5.2 Company Continues. The Company shall not dissolve or terminate on the occurrence of any Buy-Out Event, but its business shall continue without interruption and without any break in continuity. On the occurrence of a Buy-Out Event, the Remaining Members shall not liquidate or wind up the affairs of the Company. 6.5.3 Definition of "Available Interest". The term "Available Interest" shall refer to that Membership interest which is subject to the effect of a Buy-Out Event, it being expressly noted that Perkins' interest is not subject to specified Buy-Out Events. 6.6 Procedure for Sale and Purchase. The sale and purchase of an Available Interest shall be implemented as provided below. 6.6.1 Remaining Members' Option to Purchase. For a period of 45 business days following the Effective Date of a Buy-Out Event, the Remaining Members shall have the option to purchase the Available Interest (by written Election to the Selling Member) in the manner specified immediately below and in Sections 6.7 and 6.9 of this Agreement; provided, if the Buy-Out Event is a Dissolution of Marriage, the Divorced Member shall have the first right to purchase that portion of the Available Interest awarded to his spouse ("Awarded Interest") if practical or legally permissible; otherwise, the Divorced Member shall have the right to purchase any Awarded Interest acquired by the Remaining Members under this Agreement on the same -20- terms and conditions as such Awarded Interest were acquired so long as the Divorced Member exercises his right by written notice to the Remaining Members within 20 days after they were acquired from the Divorced Member's spouse (or her heirs, legal representatives, successors or assigns). (a) If the requests specified in all the Elections exceed the Available Interest, then each Remaining Member shall have the right, up to the request each specified in his Election, to purchase such proportion of the Available Interest as his Membership interest bears to the Membership interests held by all the Members electing to purchase. (b) On or before the end of the 45-day period, the Remaining Members together shall determine what portion of the Available Interest was effective as to each Remaining Member's Election and each Remaining Member shall meet the terms and conditions of the purchase within 10 days thereafter according to Sections 6.7 (Purchase Price), 6.9 (Payment For and Transfer of Available Interest) and 6.10 (Notes and Security). 6.6.2 Failure to Purchase All Available Interest. If all the Remaining Members do not or are unable to purchase all the Available Interest, then all the Available Interest may be sold or transferred at any time to any third party within 90 days from the last date of the option periods provided in this Agreement. The transferee will hold the Available Interest subject to the provisions of this Agreement. No transfer of the Available Interest shall be made after the end of the 90 day period, nor shall any change in the terms of transfer be permitted, without a written Notice of Intention To Transfer first being given to the Remaining Members in which case all the provisions of Section 6 shall be applicable. 6.7 Purchase Price. The Purchase Price for an Available Interest shall be determined by appraisal as follows: 6.7.1 Within 45 days after a Buy-Out Event, the Selling Member and the Remaining Members (as a group) either (1) shall jointly appoint an appraiser for this purpose, or (2) failing this joint action, shall each separately designate an appraiser and, within 5 days after their appointment, the two designated appraisers shall jointly designate a third appraiser. The failure of either the Selling Member or the Remaining Members to appoint an appraiser within the time allowed shall be deemed equivalent to appointment of the appraiser appointed by the other party or parties. No person shall be appointed or designated an appraiser unless that person is then a member of the American Institute of Real Estate Appraisers or the American Society of Appraisers. 6.7.2 If, within 10 days after the appointment of all appraisers, a majority of the appraisers concur on the value of the interest being appraised, that appraisal shall be binding and conclusive. If the majority of the appraisers do not concur within that period, the determination of the appraiser whose appraisal is neither highest nor lowest shall be binding and conclusive. The Company and the Member whose interest is to be appraised, or that Member's estate or -21- successors, shall share the appraisal expenses equally. 6.7.3 A Member's interest in the Company so appraised shall be based on that Member's proportional interest in the Company's profits. Real Estate shall be appraised at fair market value. 6.8 Insurance Policies 6.8.1 Identification of Policies. In the event the parties hereto elect to obtain life insurance policies or disability buy-out insurance policies, or both, for the purpose of purchasing a deceased or disabled Member's interest in the Company, then the parties shall execute an appropriate amendment identifying those life insurance policies and/or disability insurance policies and the manner in which the proceeds of such policies are to be used for any such purpose. 6.8.2. Unneeded Life Insurance Policies. In the event life insurance has been purchased by the Members on the lives of one another to fund the Buy-Out provisions of this Agreement, then on the death of any Member each of the Remaining Members shall have the option for 60 days to purchase the policy of life insurance on the Member's life owned by the Decedent. Each Member shall also have the right to purchase the policies on his life within 60 days after the sale or transfer of all of his Membership interest, or after termination of this Agreement. This option shall be exercised by delivering written notice of exercise to the Decedent's personal representative or to the owner of the policy and paying the purchase price in cash. The purchase price shall be equal to the cash surrender value of the policy, reduced by any unpaid loans made against the policy. If the option is not exercised within that period, the policy owner may surrender the policy for its cash value or dispose of it in any other way he sees fit. The parties agree to execute such releases and assignments as may be necessary to effectuate the provisions of this paragraph. 6.9 Payment and Transfer of Available Interest. 6.9.1 General Provisions. On the occurrence of any event that leads to the purchase of an Available Interest under this Agreement, the consideration to be paid for the Interest or portion thereof shall be paid to the Selling Member, his estate, or his former spouse, as the case may be. If the event that leads to the purchase is death of any Member, the Remaining Members shall file the necessary proofs of death and collect the proceeds of any policies of insurance covered by this Agreement and outstanding on the life of the deceased Member. The decedent's personal representative shall apply for and obtain any necessary Court approval or confirmation of the sale of the decedent's Interest under this Agreement. Likewise, the parties will perform all necessary acts to collect under any disability pay-out policies in the event of a Member's disability. 6.9.2 Payment by Remaining Members. The Remaining Members shall pay the purchase price, or balance of the purchase price if insurance proceeds were first applied, in cash -22- or, at their option, shall pay a cash payment of at least 10% of the purchase price or balance of the purchase price, as the case may be, with the remaining balance paid under a Promissory Note as more fully provided in Section 6.10 below. 6.9.3 Prompt Payment and Transfer of Available Interest. In all events, consideration for the Available Interest shall be delivered as soon as practicable to the person entitled to it, and the Remaining Members shall cause the transfer of the Available Interest to be reflected in the Membership books and records. 6.10 Notes and Security. 6.10.1 Form of Note. The deferred portion of the Purchase Price for any Available Interest purchased under this Agreement shall be represented by a Promissory Note executed by each of the purchasing Members. The Note shall provide for payment of principal in 12 equal quarterly installments plus accrued interest on the unpaid balance at the maximum legal rate permitted by law but not to exceed the rate of 12% per annum, with full privilege of prepayment of all or any part of the principal at any time without penalty or bonus. Any prepaid sums shall be applied against the installments thereafter falling due in inverse order of their maturity, or against all the remaining installments equally, at the option of the payers. The Note shall provide that, in case of default, at the election of the holder the entire sum of principal and interest will immediately be due and payable, and that the makers shall pay reasonable attorney's fees to the holder in the event suit is commenced because of default. 6.10.2 Pledge of Membership Interest. The Note shall be secured by a pledge of the Available Interest being purchased in the transaction to which the Note relates. The pledgeholder shall be either the Company's general counsel or, if such general counsel is unwilling or unable to act, such other third party as shall be agreed upon by the seller and purchaser, or purchasers, of the Available Interest. The Pledge Agreement shall contain such other terms and provisions as may be customary and reasonable. As long as no default occurs in payments on the Note, the purchasers shall be entitled to all Membership rights attached to the pledged Membership interest; provided, however, any cash distributions shall be paid to the holder of the Note as a prepayment of principal. The purchasers shall expressly waive demand, notice of default, and notice of sale, and shall consent to public or private sale of the pledged Membership Interest in the event of default; in mass or in lots at the option of the pledgeholder, and the seller shall have the right to purchase at the sale. Article VII Dissolution, Liquidation, and Termination of the Company 7.1. Events of Dissolution. The Company shall be dissolved upon the happening of the first to occur of an event specified in Section 17350 of the Act or the date fixed for its termination in Section 2.4; provided, however, that the Members (other than the Member whose death, incapacity, bankruptcy, withdrawal or dissolution caused the dissolution to occur, if applicable) -23- may be unanimous vote within 90 days of the happening of the event vote to continue the business of the Company, in which case, the Company shall not dissolve. If the remaining members fail to so vote, the remaining Members shall wind up the Company. 7.2. Procedure for Winding Up and Dissolution. If the Company is dissolved, the Members shall wind up its affairs. On winding up of the Company, the assets of the Company shall be distributed, first to creditors of the Company, including Interest Holders who are creditors, in satisfaction of the liabilities of the Company, and then, to the Interest Holders in accordance with Section 4.4 of this Agreement. 7.3. Filing of Certificate of Cancellation. Upon completion of the affairs of the Company, the remaining Members shall promptly file the Certificate of Cancellation of Articles of Organization with the Secretary of State. If there are no remaining Members, the Certificate shall be filed by the last Person to be a Member; if there is neither remaining Members, nor a Person who last was a Member, the Certificate shall be filed by the legal or personal representatives of the Person who last was a Member. Article VIII Books, Records, Accounting, and Tax Elections 8.1. Bank Accounts. All funds of the Company shall be deposited in a bank account or accounts opened in the Company's name. The Members shall determine the financial institution or institutions at which the accounts will be opened and maintained, the types of accounts, and the Persons who will have authority with respect to the accounts and the funds therein. 8.2. Books and Records. 8.2.1. The Members shall keep or cause to be kept complete and accurate books, records, and financial statements of the Company and supporting documentation of transactions with respect to the conduct of the Company's business. The books, records, and financial statements of the Company shall be maintained on the cash basis of accounting or such other method as the Members may elect. Such books, records, financial statements, and documents shall include, but not be limited to, the following: (1) a current list of the full name and last known business or residence address of each Member and Interest Holder, in alphabetical order, with the Contribution and the share in profits and losses of each Member and Interest Holder specified in such list; (2) the Articles of Organization, including all amendments; and any powers of attorney under which the Articles of Organization or amendments were executed; (3) federal, state, and local income tax or information returns and reports, if any, for the six most recent taxable years; -24- (4) this Agreement and any amendments thereto; and any Powers-of-Attorney under which this Agreement or amendments were executed; (5) financial statements for the six most recent years; (6) internal books and records for the current and three most recent years; and (7) a true copy of relevant records indicating the amount, cost, and value of all property which the Company owns, claims, possesses, or controls. 8.2.2. Such books, records, and financial statements of the Company and supporting documentation shall be kept, maintained, and available at the Company's office within the State of California. 8.3. Right to Inspect Books and Records; Receive Information. 8.3.1. Upon the reasonable request of a Member for a purpose reasonably related to the interest of that Member of the Company, a copy of this Agreement, as well as the information required to be maintained by the Company under subparagraphs (1), (2), and (4) of Section 8.2.1. shall be promptly delivered to the requesting Member at the expense of the Member. 8.3.2. Each Member has the right upon reasonable request, and for purposes reasonably related to the interest of that Member of the Company, to do the following: (1) to inspect and copy during normal business hours any of the records required to be maintained by the Company under Section 8.2.1 of this Agreement; and (2) to obtain from the Company promptly after becoming available, a copy of the Company's federal, state, and local income tax or information returns for each year. 8.3.3. The Company shall send or shall cause to be sent to each Member or Interest Holder within 90 days after the end of each fiscal year of the Company: (I) such information as is necessary to complete federal and state income tax or information returns, and (ii) if the Company has 35 or fewer Members, a copy of the Company's federal, state, and local income tax or information returns for the fiscal year. 8.3.4. Unless otherwise expressly provided in this Agreement, the inspecting or requesting Member as the case may be, shall reimburse the Company for all reasonable costs and expenses incurred by the Company in connection with such inspection and copying of the Company's books and records and the production and delivery of any other books or records. 8.4. Annual Accounting Period. The annual accounting period of the Company shall be -25- its taxable year. The Company's taxable year shall be selected by the Members, subject to the requirements and limitations of the Code. 8.5. Tax Matters Partner. David M. Holmes shall be the Tax Matters Partner for purposes of IRC Section 6231(a)(7), and shall have all the authority granted by the Code to the Tax Matters Partner, provided that he shall not have the authority without first obtaining the consent of the Members to do any of the following: 1. Enter into a settlement agreement with the Internal Revenue Service that purports to bind the other Members. 2. File a petition as contemplated in IRC Section 6226(a) or IRC Section 6228. 3. Intervene in any action as contemplated in IRC Section 6226(b)(5). 4. File any request contemplated in IRC Section 6227(b). 5. Enter into an agreement extending the period of limitations as contemplated in IRC Section 6229(b)(1)(B). 8.6. Tax Elections. The Tax Matters Partner shall have the authority to make all Company elections permitted under the Code, including, without limitation, elections of methods of depreciation and elections under IRC Section 754. The decision to make or not make an election shall be at the Tax Matters Partner's sole and absolute discretion. 8.7. Title to Company Property. All real and personal property acquired by the Company shall be acquired and held by the Company in the Company's name. Article IX General Provisions 9.1. Assurances. Each Member shall execute all certificates and other documents and shall do all such filing, recording, publishing, and other acts shall be appropriate to comply with the requirements of law for the formation and operation of the Company and to comply with any laws, rules, and regulations relating to the acquisition, operation, or holding of the property of the Company. 9.2. Notifications. Any notice, demand, consent, election, offer, approval, request, or other communication (collectively a "notice") required or permitted under this Agreement must be in writing and either delivered personally or sent by certified or registered mail, postage prepaid, return receipt requested. A notice must be addressed to an Interest Holder at the Interest Holder's last known address on the records of the Company. A notice to the Company must be addressed to the Company's principal office. A notice delivered personally will be deemed given -26- only when acknowledged in writing by the Person to whom it is delivered. A notice that is sent by Mail will be deemed given three (3) business days after it is Mailed from the United States. Any party may designate, by notice to all of the others, substitute addresses or addressees for notices; and, thereafter, notices are to be directed to those substitute addresses or addressees. 9.3. Specific Performance. The parties recognize that irreparable injury will result from a breach of any provision of this Agreement and that money damages will be inadequate to fully remedy the injury. Accordingly, in the event of a breach or threatened breach of one or more of the provisions of this Agreement, any party who may be injured (in addition to any other remedies which may be available to that party) shall be entitled, without a requirement for the filing of a bond or other security, to one or more preliminary or permanent orders (I) restraining and enjoining any act which would constitute a breach or (ii) compelling the performance of any obligation which, if not performed, would constitute a breach. 9.4. Complete Agreement. This Agreement constitutes the complete and exclusive statement of the agreement among the Members. It supersedes all prior written and oral statements, including any prior representation, statement, condition, or warranty. Except as expressly provided otherwise herein, this Agreement may not be amended without the written consent of all of the Members. 9.5. Applicable Law. All questions concerning the construction, validity, and interpretation of this Agreement and the performance of the obligations imposed by this Agreement shall be governed by the internal law, not the law of conflicts, of the State of California. 9.6. Article and Section Titles. The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof. 9.7. Binding Provisions. This Agreement is binding upon, and to the limited extent specifically provided herein, inures to the benefit of, the parties hereto and their respective heirs, executors, administrators, personal and legal representatives, successors, and assigns. 9.8. Jurisdiction and Venue. Any suit involving any dispute or matter arising under this Agreement may only be brought in the appropriate United States District Court in California or any California State Court having jurisdiction over the subject matter of the dispute or matter. All Members hereby consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding. 9.9. Terms. Common nouns and pronouns shall be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the identity of the Person may in the context require. 9.10. Separability of Provisions. Each provision of this Agreement shall be considered -27- separable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid. 9.11. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which, when taken together, constitute one and the same document. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. 9.12. Estoppel Certificate. Each Member shall, within ten (10) days after written request therefor by another Member, deliver to the requesting Person a certificate stating, to the Member's knowledge, that: (a) this Agreement is in full force and effect; (b) this Agreement has not been modified except by any instrument or instruments identified in the certificate; and (c) there is no default hereunder by the requesting Person, or if there is a default, the nature and extent thereof. IN WITNESS WHEREOF, the parties have executed, or caused this Agreement to be executed, under seal, as of the date set forth hereinabove. MEMBERS: Neale A. Perkins /s/ Neale A. Perkins Safariland Ltd., Inc. -------------------------- 3120 East Mission Boulevard Ontario, California 91761 ###-##-#### Social Security Number Scott T. O'Brien /s/ Scott T. O'Brien Safariland Ltd., Inc. -------------------------- 3120 East Mission Boulevard Ontario, California 91761 ###-##-#### Social Security Number David M. Holmes /s/ David M. Holmes 27281 Las Ramblas -------------------------- Suite 155 Mission Viejo, California 92691 ###-##-#### Social Security Number -28- Mark C. Nelson /s/ Mark C. Nelson Safariland Ltd., Inc. -------------------------- 3120 East Mission Boulevard Ontario, California 91761 ###-##-#### Social Security Number -29- NAP PROPERTY MANAGERS, LLC, LIMITED LIABILITY COMPANY OPERATING AGREEMENT EXHIBIT A Name, Address Percentages Taxpayer I.D. Number Capital of Initial Date of Initial Members Contribution Capital Admitted - -------------------- ------------------------ ----------- ---------------- Neale A. Perkins His interest as a general partner in NAP Property Managers, a California general partnership 92.1% October 9, 1996 Scott T. O'Brien His general partnership in NAP Property Managers a California general partnership 3.8% October 9, 1996 David M. Holmes His general partnership in NAP Property Managers a California general partnership 3.8% October 9, 1996 Mark C. Nelson His general partnership in NAP Property Managers a California general partnership 0.3% October 9, 1996 -30- FIRST AMENDMENT TO MEMBER-MANAGED OPERATING AGREEMENT OF NAP PROPERTY MANAGERS, LLC, a California limited liability company THIS FIRST AMENDMENT to the Member-Managed Operating Agreement of NAP Property Managers, LLC, a California limited liability company, executed on October 9, 1996, is made by and among the parties listed on the signature page hereof (collectively referred to as the "Members" or individually as "Member"). IT IS AGREED: 1. Pursuant to Article VI, Section 6.0.1 of the Agreement, effective this date the Membership Interest in the Company held by Scott T. O'Brien (3.8%) and David M. Holmes (3.8%), are transferred and assigned to Neale A. Perkins, Trustee of The Neale A. Perkins Trust established 3/13/90. Further, effective January 1, 1998 Mark C. Nelson assigned his Membership Interest in the Company to Neale A. Perkins. (See attached Assignments Of Membership Interest.) 2. The Members hereby consent to the transfer and assignment of the foregoing Membership Interest. 3. Pursuant to Article VI, Section 6.1.1 of the Agreement, Neale A. Perkins, Trustee of the Neale A. Perkins Trust established 3/13/90 hereby transfers 1.0000% to Patricia A. Perkins. (See attached Assignment Of Membership Interest.) 4. The Members hereby consent to the transfer and assignment of the foregoing Membership Interest and, by her signature on this First Amendment, Patricia A. Perkins agrees to be bound by all the terms and conditions of the Agreement. 5. Exhibit A is amended as set forth below to reflect the transfer and assignments of Membership Interests:
- --------------------------------------------------------------------------------- Percentage "Member Capital Contribution Interest - --------------------------------------------------------------------------------- Neale A. Perkins, Trustee His interest as a general partner in NAP 99.0000% of The Neale A. Perkins Property Managers, a California general Trust dated 3/13/90 partnership - --------------------------------------------------------------------------------- Patricia A. Perkins Assignment of Membership Interest by 1.0000% Neale A. Perkins, Trustee of The Neale A. Perkins Trust established 3/13/90. - --------------------------------------------------------------------------------- TOTAL 100.0000%" - ---------------------------------------------------------------------------------
5. Except as added to, deleted, modified, or otherwise changed by this First Amendment, the terms and provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the undersigned Members have executed this First Amendment to be effective as of May 6, 1999. MEMBERS: The Neale A. Perkins Trust dated 3/13/90 /s/ Neale A. Perkins - --------------------------------------- Neale A. Perkins, Trustee /s/ Patricia A. Perkins - --------------------------------------- Patricia A. Perkins SECOND AMENDMENT TO MEMBER-MANAGED OPERATING AGREEMENT OF NAP PROPERTY MANAGERS, LLC, a California Limited Liability Company (Effective as of May20, 2000) THIS SECOND AMENDMENT to the Member-Managed Operating Agreement (this "Agreement") of NAP PROPERTY MANAGERS, LLC, a California limited liability company (the "Company") is made by ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation and the sole Member of the Company. 1. This Agreement is amended to reflect that the sole Member of the Company is ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation, having acquired all of the Membership Interests of Patricia A. Perkins and The Neale A. Perkins Trust dated March 13, 1990, pursuant to the assignments of interests annexed hereto. 2. ARMOR HOLDINGS PROPERTIES, INC. shall act as the sole Managing Member of the Company. ARMOR HOLDINGS PROPERTIES, INC., Managing Member By: /s/ Robert R. Schiller ------------------------------------- Name: Robert R. Schiller Title: Vice President EX-3.63 61 file060.txt CERTIFICATE OF INCORPORATION OF MONADNOCK LIFETIME STATE OF NEW HAMPSHIRE ------------------ BE IT KNOWN THAT WHEREAS JOHN E. ANKETELL AND DOROTHY W. ANKETELL BOTH OF WINCHENDON, MA. AND PAUL D. STARRETT OF RINDGE, NEW HAMPSHIRE HAVE ASSOCIATED THEMSELVES WITH THE INTENTION OF FORMING A CORPORATION UNDER THE NAME OF MLP INDUSTRIES, INC. FOR THE PURPOSE To engage in the research and design for various types of products, both mechanical and otherwise, and to engage in the carrying on of a general business of manufacturing and distribution of products either developed by this corporation, or by other corporations; and for other purposes as set forth in the Articles of Agreement. WITH A CAPITAL STOCK CONSISTING OF 300 shares common without par value; 100 shares common without par value authorized to be issued at the present time. AND HAVE COMPLIED WITH THE PROVISIONS OF THE STATUTES OF THIS STATE IN SUCH CASE MADE AND PROVIDED AS APPEARS FROM THE RECORD OF ORGANIZATION OF SAID CORPORATION DULY APPROVED BY THE ASSISTANT ATTORNEY-GENERAL AND RECORDED IN THIS OFFICE; NOW THEREFORE I, ROBERT L. START, SECRETARY OF STATE OF NEW HAMPSHIRE, DO HEREBY CERTIFY THAT SAID JOHN E. ANKETELL DOROTHY W. ANKETELL PAUL D. STARRETT THEIR ASSOCIATES AND SUCCESSORS, ARE LEGALLY ORGANIZED AND ESTABLISHED AS, AND ARE HEREBY MADE, AN EXISTING CORPORATION UNDER THE NAME OF MLP INDUSTRIES, INC. WITH THE POWERS, RIGHTS AND PRIVILEGES, AND SUBJECT TO THE LIMITATIONS, DUTIES AND RESTRICTIONS WHICH BY LAW APPERTAIN THERETO. [GRAPHIC OMITTED] WITNESS MY OFFICIAL SIGNATURE HEREUNTO SUBSCRIBED AND THE SEAL OF THE STATE OF NEW HAMPSHIRE AFFIXED, THIS ninth DAY OF February IN THE YEAR one thousand nine hundred and seventy-one /s/ Illegible -------------------------------- SECRETARY OF STATE. ARTICLES OF AGREEMENT We, the subscribers, being persons of lawful age, do hereby associate under the provisions of Chapter 294 of the revised Statutes Annotated and any amendments thereto by the following Articles of Agreement. ARTICLE I The name of the corporation shall be MLP INDUSTRIES, INC. ARTICLE II The principal place of business of the corporation shall be Fitzwilliam, New Hampshire. ARTICLE III The purposes for which this corporation is established are to engage in the research and design for various types of products, both mechanical and otherwise, and to engage in the carrying on of a general business of manufacturing and distribution of products either developed by this corporation, or by other corporations, associations or individuals, and to perform any other act necessary or desirable to achieve the general purposes of this corporation; to develop, hold, acquire, lease, sell, pledge, mortgage, license, or otherwise dispose of or acquire any equipment, patents, trademarks, inventions, trade secrets, or to act in the same manner with regard to any other type of property, either real or personal, incidental to the carrying out of the business of the corporation; to do any and all acts necessary or desirable to further such purposes; to purchase, take, receive or otherwise acquire, hold, own, cancel, re-issue, pledge, transfer or otherwise dispose of the shares of the capital stock of this corporation subject to the provisions of law applicable thereto; and to exercise all general powers conferred by Chapter 294 of the Revised Statutes Annotated. ARTICLE IV Any meetings of the stockholders may be held either within or outside of the State of New Hampshire, but if outside of the State of New Hampshire, the requirements of R.S.A. 294:81 shall be satisfied. ARTICLE V The capital stock of this corporation shall consist of 300 shares of common stock, having no par value. ARTICLE VI The first meeting of the incorporators shall be held at Winchendon Road, Fitzwilliam, New Hampshire on the 29th day of January, 1971 at ten o'clock in the forenoon. /s/ John E. Anketell - -------------------------------------- Winchendon, Massachusetts John E. Anketell /s/ Dorothy W. Anketell - -------------------------------------- Winchendon, Massachusetts Dorothy W. Anketell /s/ Paul D. Starrett - -------------------------------------- Rindge, New Hampshire Paul D. Starrett State of New Hampshire Cheshire ss. We, the undersigned, being the treasurer and a majority of the Board of Directors of MLP Industries, Inc., do hereby make oath: 1. that a special meeting of the stockholders of MLP Industries, Inc., was held at the office of the corporation in Fitzwilliam, New Hampshire on February 9, 1972. 2. that the meeting was called for the purpose of considering changing the name of the corporation to Monadnock Lifetime Products, Inc. 3. that all of the stockholders of the corporation were present and voting. 4. that the following is a true copy of the vote to change the name of the corporation which was unanimously adopted by the stockholder: "On motion duly made and seconded, it was unanimously VOTED: to change the name of the corporation to Monadnock Lifetime Products, Inc., and to authorize the clerk to take the necessary steps to notify the appropriate authorities of such change." /s/ Paul P. Starrett --------------------------------------- Treasurer /s/ Paul P. Starrett --------------------------------------- Director /s/ Keith A. Divall --------------------------------------- Director /s/ Raymond F. Starrett [SEAL] --------------------------------------- Director Subscribed and sworn to before me this 10TH day of February, 1972. My Commission Expires September 1, 1972 /s/ Illegible -------------------------- Notary Public EX-3.64 62 file061.txt BYLAWS OF MONADNOCK LIFETIME PRODUCTS, INC. (NH) BYLAWS OF MONADNOCK LIFETIME PRODUCTS, INC. TABLE OF CONTENTS SECTION ARTICLE I. OFFICES Section 1.1 Business Office Section 1.2 Registered Office ARTICLE II. SHAREHOLDERS Section 2.1 Annual Shareholder Meeting Section 2.2 Special Shareholder Meetings Section 2.3 Place of Shareholder Meeting Section 2.4 Notice of Shareholder Meeting Section 2.5 Fixing of Record Date Section 2.6 Shareholder List Section 2.7 Shareholder Quorum and Voting Requirements Section 2.8 Increasing Either Quorum or Voting Requirements Section 2.9 Proxies Section 2.10 Voting of Shares Section 2.11 Corporation's Acceptance of Votes Section 2.12 Informal Action by Shareholders Section 2.13 Voting for Directors Section 2.14 Shareholder's Rights to Inspect Corporate Records Section 2.15 Financial Statements Shall be Furnished to the Shareholders Section 2.16 Dissenters' Rights ARTICLE III. BOARD OF DIRECTORS Section 3.1 General Powers Section 3.2 Number, Tenure and Qualifications of Directors Section 3.3 Regular Meetings of the Board of Directors Section 3.4 Special Meetings of the Board of Directors Section 3.5 Notice of, and Waiver of Notice for, Special Director Meetings Section 3.6 Director Quorum Section 3.7 Directors, Manner of Acting Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement for the Board of Directors Section 3.9 Director Action Without a Meeting Section 3.10 Removal of Directors Section 3.11 Board of Director Vacancies Section 3.12 Director Compensation Section 3.13 Director Committees ARTICLE IV. OFFICERS Section 4.1 Number of Officers Section 4.2 Appointment and Term of Office. Section 4.3 Removal of Officers Section 4.4 President Section 4.5 Vice Presidents Section 4.6 The Secretary Section 4.7 The Treasurer Section 4.8 Assistant Secretaries and Assistant Treasurers Section 4.9 Salaries ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES Section 5.1 Indemnification of Directors Section 5.2 Advance Expenses for Directors Section 5.3 Indemnification of Officers, Agents, and Employees Who are Not Directors ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 6.1 Certificates for Shares Section 6.2 Shares Without Certificates Section 6.3 Registration of the Transfer of Shares Section 6.4 Restrictions on Transfer Shares Permitted Section 6.5 Acquisition of Shares ARTICLE VII. DISTRIBUTIONS Section 7.1 Distributions ARTICLE VIII. CORPORATE SEAL Section 8.1 Corporate Seal ARTICLE IX. EMERGENCY BYLAWS Section 9.1 Emergency Bylaws ARTICLE X. AMENDMENTS Section 10.1 Amendments BYLAWS OF MONADNOCK LIFETIME PRODUCTS, INC. ARTICLE I OFFICES Section 1.1 Business Office. The principal office of the corporation shall be located at any place either within or outside the State of New Hampshire as designated in the company's most current Annual Report filed with the New Hampshire Secretary of State. The corporation may have such other offices, either within or without the State of New Hampshire, as the Board of Directors may designate or as the business of the corporation may require from time to time. The corporation shall maintain at its principal office a copy of certain records, as specified in Section 2.14 of Article II. Section 1.2 Registered Office. The registered office of the corporation, as required by Section 5.01 of the New Hampshire Business Corporation Act, shall be located within New Hampshire and may be, but need not be, identical with the principal office (if located within New Hampshire). The address of the registered office may be changed from time to time. ARTICLE II SHAREHOLDERS Section 2.1 Annual Shareholder Meeting. The annual meeting of the shareholders shall be held on the third Tuesday of December, in each year, beginning with the year 1993, at the hour of 9:00 o'clock in the forenoon, or at such other time on such other day within such month as shall be fixed by the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of New Hampshire, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for any annual meeting of the shareholders, or at any subsequent continuation after adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as convenient. Section 2.2 Special Shareholder Meetings. Special meetings of the shareholders, for any purpose or purposes, described in the meeting notice, may be called by the president, or by the Board of Directors or by the Secretary, and shall be called by the president at the request of the holders of not less than one-tenth of all outstanding votes of the corporation entitled to be cast on any issue at the meeting. Section 2.3 Place of Shareholder Meeting. The Board of Directors may designate any place within the county in New Hampshire where the company has its principal office as the place of meeting for any annual or special meeting of the shareholders, unless all the shareholders entitled to vote at the meeting agree by written consents (which may be in the form of waiver of notice or otherwise) to another location, which may be either within or without the State of New Hampshire. If no designation is made, the place of meeting shall be the principal office of the corporation in the State of New Hampshire. Section 2.4 Notice of Shareholder Meeting. (a) Required Notice. Written notice stating the place, day and hour of any annual or special shareholder meeting shall be delivered not less than ten nor more than 60 days before the date of the meeting, either personally or by mail, by or at the direction of the president, the Board of Directors, or other persons calling the meeting, to each shareholder of record, entitled to vote at such meeting and to any other shareholder entitled by the New Hampshire Business Corporation Act or the articles of incorporation to receive notice of the meeting. Notice shall be deemed to be effective at the earlier of: (1) When deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; (2) On the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; (3) When received; or (4) Five days after deposit in the United States mail, if mailed postpaid and correctly addressed to an address other than that shown in the corporation's current record of shareholders. (b) Adjourned Meeting. If any shareholder meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, and place, if the new date, time, and place is announced at the meeting before adjournment. But if a new record date for the adjourned meeting is, or must be fixed (see Section 2.5 of Article II) then notice must be given pursuant to the requirements of paragraph (a) of this Section 2.4, to those persons who are shareholders as of the new record date. 2 (c) Waiver of Notice. The shareholder may waive notice of the meeting (or any notice required by the Act, articles of incorporation, or bylaws), by a writing signed by the shareholder entitled to the notice, which is delivered to the corporation (either before or after the date and time stated in the notice) for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (1) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting. (2) waives objection to consideration of a particular matter at the meeting that is not within the purpose of purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. (d) Contents of Notice. The notice of each special shareholder meeting shall include a description of the purpose or purposes for which the meeting is called. Except as provided in this Section 2.4(d), or as provided in the corporation's articles, or otherwise in the New Hampshire Business Corporation Act, the notice of an annual shareholder meeting need not include a description of the purpose or purposes for which the meeting is called. If a purpose of any shareholder meeting is to consider either: (1) a proposed amendment to the articles of incorporation (including any restated articles requiring shareholder approval); (2) a plan of merger or share exchange; (3) the sale, lease, exchange or other disposition of all, or substantially all of the corporation's property; (4) the dissolution of the corporation; or (5) the removal of a director, the notice must so state and be accompanied by respectively a copy or summary of the: (1) articles of amendment; (2) plan of merger or share exchange; and (3) transaction for disposition of all the corporation's property. If the proposed corporate action creates dissenters' rights, the notice must state that shareholders are, or may be entitled to assert dissenters' rights, and must be accompanied by a copy of Subchapter 13 of the New Hampshire Business Corporation Act. If the corporation issues, or authorizes the issuance of shares for promissory notes or for promises to render services in the future, the corporation shall report in writing to all the shareholders the number of shares authorized or issued, and the consideration received with or before the notice of the next shareholder meeting. Likewise, if the corporation indemnifies or advances expenses to a director (as defined in New Hampshire Business Corporation Act 3 section 16.21), this shall be reported to all the shareholders with or before notice of the next shareholder's meeting. Section 2.5 Fixing of Record Date. For the purpose of determining shareholders of any voting group entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any distribution or dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may fix in advance a date as the record date. Such record date shall not be more than 70 days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If no record date is so fixed by the Board for the determination of shareholders entitled to notice of, or to vote at a meeting of shareholders, or shareholders entitled to receive a share dividend or distribution, the record date for determination of such shareholders shall be at the close of business on: (a) With respect to an annual shareholder meeting or any special shareholder meeting called by the Board or any person specifically authorized by the Board or these bylaws to call a meeting, the day before the first notice is delivered to shareholders; (b) With respect to a special shareholder's meeting demanded by the shareholders, the date the first shareholder signs the demand; (c) With respect to the payment of a share dividend, the date the Board authorizes the share dividend; (d) With respect to actions taken in writing without a meeting (pursuant to Article II, Section 2.12), the date the first shareholder signs a consent; (e) And with respect to a distribution to shareholders, (other than one involving a repurchase or reacquisition of shares), the date the Board authorizes the distribution. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the Board of Directors fixes a new record date which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. 4 Section 2.6 Shareholder List. The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete record of the shareholders entitled to vote at each meeting of shareholders thereof, arranged in alphabetical order, with the address of and the number of shares held by each. The list must be arranged by voting group (if such exists, see Article II, Section 2.7) and within each voting group by class or series of shares. The shareholder list must be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting. The list shall be available at the corporation's principal office or at a place identified in the meeting notice in the city where the meeting is to be held. A shareholder, his agent, or attorney is entitled on written demand to inspect and, subject to the requirements of Section 2.14 of this Article II, to copy the list during regular business hours and at his expense, during the period it is available for inspection. The corporation shall maintain the shareholder list in written form or in another form capable of conversion into written form within a reasonable time. Section 2.7 Shareholder Quorum and Voting Requirements. If the articles of incorporation or the New Hampshire Business Corporation Act provide for voting by a single voting group on a matter, action on that matter is taken when voted upon by that voting group. Shares entitled to vote as a separate voting group may take action on a matter at a meeting only if a quorum of those shares exists with respect to that matter. Unless the articles of incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or the New Hampshire Business Corporation Act provide otherwise, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter. If the articles of incorporation or the New Hampshire Business Corporation Act provide for voting by two or more voting groups on a matter, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one voting group on a matter even though no action is taken by another voting group entitled to vote on the matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. 5 If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the articles of incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or the New Hampshire Business Corporation Act require a greater number of affirmative votes. Section 2.8 Increasing Either Quorum or Voting Requirements. For purposes of this Section 2.8 a "supermajority" quorum is a requirement that more than a majority of the votes of the voting group be present to constitute a quorum; and a "supermajority" voting requirement is any requirement that requires the vote of more than a majority of the affirmative votes of a voting group at a meeting. The shareholders, but only if specifically authorized to do so by the articles of incorporation, may adopt, amend, or delete a bylaw which fixes a "supermajority" quorum or "supermajority" voting requirement. The adoption or amendment of a bylaw that adds, changes, or deletes a "supermajority" quorum or voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater. A bylaw that affixes a supermajority quorum or voting requirement for shareholders may not be adopted, amended, or repealed by the Board of Directors. Section 2.9 Proxies. At all meetings of shareholders, a shareholder may vote in person, or vote by proxy which is executed in writing by the shareholder or which is executed by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the corporation or other person authorized to tabulate votes before or at the time of the meeting. No proxy shall be valid after 11 months from the date of its execution unless otherwise provided in the proxy. Section 2.10 Voting of Shares. Unless otherwise provided in the articles, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. Except as provided by specific court order, no shares held by another corporation, if a majority of the shares entitled to vote 6 for the election of directors of such other corporation are held by the corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting. Provided, however, the prior sentence shall not limit the power of the corporation to vote any shares, including its own shares, held by it in a fiduciary capacity. Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. Section 2.11 Corporation's Acceptance of Votes. (a) If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a shareholder, the corporation if acting in good faith is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder. (b) If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the name of its shareholder, the corporation if acting in good faith is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the shareholder if: (1) the shareholder is an entity as defined in the New Hampshire Business Corporation Act and the name signed purports to be that of an officer or agent of the entity; (2) the name signed purports to be that of an administrator, executor, guardian, or conservator representing the shareholder and, if the corporation requests, evidence of fiduciary status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; (3) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the corporation requests, evidence of this status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment; 7 (4) the name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the shareholder and, if the corporation requests, evidence acceptable to the corporation of the signatory's authority to sign for the shareholder has been presented with respect to the vote, consent, waiver, or proxy appointment; (5) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all the co-owners. (c) The corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the shareholder. (d) The corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the shareholder for the consequences of the acceptance or rejection. (e) Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise. Section 2.12 Informal Action by Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof and are delivered to the corporation for inclusion in the minute book. If the act to be taken requires that notice be given to non-voting shareholders, the corporation shall give the non-voting shareholders written notice of the proposed action at least ten days before the action is taken, which notice shall contain or be accompanied by the same material that would have been required if a formal meeting had been called to consider the action. 8 A consent signed under this section has the effect of a meeting vote and may be described as such in any document. Section 2.13 Voting for Directors. Unless otherwise provided in the articles of incorporation, directors are elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Section 2.14 Shareholder's Rights to Inspect Corporate Records. (a) Minutes and Accounting Records. The corporation shall keep as permanent records minutes of all meetings of its shareholders and board of directors, a record of all actions taken by the shareholders or board of directors without a meeting, and a record of all actions taken by a committee of the Board of Directors on behalf of the corporation. The corporation shall maintain appropriate accounting records. (b) Absolute Inspection Rights of Records Required at Principal Office. If he gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy, a shareholder (or his agent or attorney) has the right to inspect and copy, during regular business hours any of the following records, all of which the corporation is required to keep at its principal office: (1) its articles or restated articles of incorporation and all amendments to them currently in effect; (2) its bylaws or restated bylaws and all amendments to them currently in effect; (3) resolutions adopted by its Board of Directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding; (4) the minutes of all shareholders' meetings, and records of all actions taken by shareholders without a meeting, for the past three years; (5) all written communications to shareholders generally within the past three years, including the financial statement furnished for the past three years to the shareholders; 9 (6) a list of the names and business addresses of its current directors and officers; and, (7) its most recent annual report delivered to the Secretary of State. (c) Conditional Inspection Right. In addition, if he gives the corporation a written demand made in good faith and for a proper purpose at least five business days before the date on which he wishes to inspect and copy, he describes with reasonable particularity his purpose and the records he desires to inspect, and the records are directly connected with this purpose, a shareholder of a corporation (or his agent or attorney) is entitled to inspect and copy, during regular business hours at a reasonable location specified by the corporation, any of the following records of the corporation: (1) excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors on behalf of the corporation, minutes of any meeting of the shareholders, and records of actions taken by the shareholders or Board of Directors without a meeting, to the extent not subject to inspection under paragraph (a) of this Section 2.14. (2) accounting records of the corporation; and (3) the record of shareholders (compiled no earlier than the date of the shareholder's demand). (d) Copy Costs. The right to copy records includes, if reasonable, the right to receive copies made by photographic, xerographic, or other means. The corporation may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the shareholder. The charge may not exceed the estimated cost of production or reproduction of the records. (e) Shareholder Includes Beneficial Owner. For purposes of this Section 2.14, the term "shareholder" shall include a beneficial owner whose shares are held in a voting trust or by a nominee on his behalf. Section 2.15 Financial Statements Shall Be Furnished to the Shareholders. (a) The corporation shall furnish its shareholders annual financial statements, which may be consolidated or combined statements of the corporation and one or more of its subsidiaries, as appropriate, that include a 10 balance sheet as of the end of the fiscal year, an income statement for that year, and a statement of changes in shareholders' equity for the year unless that information appears elsewhere in the financial statements. If financial statements are prepared for the corporation on the basis of generally accepted accounting principles, the annual financial statements for the shareholders also must be prepared on that basis. (b) If the annual financial statements are reported upon by a public accountant, his report must accompany them. If not, the statements must be accompanied by a statement of the president or the person responsible for the corporation's accounting records: (1) stating his reasonable belief whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and (2) describing any respects in which the statements were not prepared on a basis of accounting consistent with the statements prepared for the preceding year. (c) A corporation shall mail the annual financial statements to each shareholder within 120 days after the close of each fiscal year. Thereafter, on written request from a shareholder who was not mailed the statements, the corporation shall mail him the latest financial statements. Section 2.16 Dissenters' Rights. Each shareholder shall have the right to dissent from and obtain payment for his shares when so authorized by the New Hampshire Business Corporation Act, articles of incorporation, these bylaws, or in a resolution of the Board of Directors. ARTICLE III BOARD OF DIRECTORS Section 3.1 General Powers. Unless the articles of incorporation have dispensed with or limited the authority of the Board of Directors by describing who will perform some or all of the duties of a Board of Directors, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of the Board of Directors. 11 Section 3.2 Number, Tenure, and Qualifications of Directors. Unless otherwise provided in the articles of incorporation, the authorized number of directors shall be not less than one nor more than five. The current number of directors shall be within the limits specified above, and as determined (or as amended from time-to-time) by resolution adopted by either the shareholders or directors. Each director shall hold office until the next annual meeting of shareholders or until removed. However, if his term expires, he shall continue to serve until his successor shall have been elected and qualified, or until there is a decrease in the number of directors. Directors need not be residents of the State of New Hampshire or shareholders of the corporation unless so required by the articles of incorporation. Section 3.3 Regular Meetings of the Board of Directors. A regular meeting of the Board of Directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide, by resolution, the time and place (which shall be within the county where the company's principal office is located) for the holding of additional regular meetings without other notice than such resolution. (If so permitted by Section 3.7, any such regular meeting may be held by telephone.) Section 3.4 Special Meetings of the Board of Directors. Special meetings of the Board of Directors may be called by or at the request of the president or any one director. The person authorized to call special meetings of the Board of Directors may fix any place, only within the county where this corporation has its principal office as the place for holding any special meeting of the Board of Directors, or if permitted by Section 3.7, such meeting may be held by telephone. Section 3.5 Notice of, and Waiver of Notice for, Special Director Meetings. Unless the articles of incorporation provide for a longer or shorter period, notice of any special director meeting shall be given at least two days previously thereto either orally or in writing. If mailed, notice of any director meeting shall be deemed to be effective at the earlier of: (1) when received; (2) five days after deposited in the United States mail, addressed to the director's business office, with postage thereon prepaid; or (3) 12 the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the director. Any director may waive notice of any meeting. Except as provided in the next sentence, the waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business and at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting, and does not thereafter vote for or assent to action taken at the meeting. Unless required by the articles of incorporation, neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 3.6 Director Quorum. If Section 3.2 establishes a fixed board size, a majority of the number of directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the articles require a greater number. If Section 3.2 permits a variable-range size board (a board size set by resolution within a given range), a majority of the number of directors prescribed by resolution, (or if no number is prescribed the number in office immediately before the meeting begins) shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, unless the articles require a greater number. Any amendment to this quorum requirement is subject to the provisions of Section 3.8 of this Article III. Section 3.7 Directors, Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present when the vote is taken shall be the act of the Board of Directors unless the articles of incorporation require a greater percentage. Any amendment which changes the number of directors needed to take action, is subject to the provisions of Section 3.8. Unless the articles of incorporation provide otherwise, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director 13 participating in a meeting by this means is deemed to be present in person at the meeting. A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (1) he objects at the beginning of the meeting (or promptly upon his arrival) to holding it or transacting business at the meeting; or (2) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement for the Board of Directors. For purposes of this Section 3.8, a "supermajority" quorum is a requirement that more than a majority of the directors in office constitute a quorum; and a "supermajority" voting requirement is any requirement that requires the vote of more than a majority of those directors present at a meeting at which a quorum is present to be the act of the directors. A bylaw that fixes a supermajority quorum or supermajority voting requirement may be amended or repealed: (1) if originally adopted by the shareholders, only by the shareholders (unless otherwise provided by the shareholders); (2) if originally adopted by the Board of Directors, either by the shareholders or by the Board of Directors. A bylaw adopted or amended by the shareholders that fixes a supermajority quorum or supermajority voting requirement for the Board of Directors may provide that it may be amended or repealed only by a specified vote of either the shareholders or the Board of Directors. Subject to the provisions of the preceding paragraph, action by the Board of Directors to adopt, amend, or repeal a bylaw that changes the quorum or voting requirement for the Board of Directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater. 14 Section 3.9 Director Action Without a Meeting. Unless the articles of incorporation provide otherwise, any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if all the directors take the action, each one signs a written consent describing the action taken, and the consents are filed with the records of the corporation. Action taken by consents is effective when the last director signs the consent, unless the consent specifies a different effective date. A signed consent has the effect of a meeting vote and may be described as such in any document. Section 3.10 Removal of Directors. The shareholders may remove one or more directors at a meeting called for that purpose if notice has been given that a purpose of the meeting is such removal. The removal may be with or without cause unless the articles provide that directors may only be removed with cause. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him exceeds the number of votes cast not to remove him. Section 3.11 Board of Director Vacancies. Unless the articles of incorporation provide otherwise, if a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, the shareholders may fill the vacancy. During such time that the shareholders fail or are unable to fill such vacancies then and until the shareholders act: (1) the Board of Directors may fill the vacancy; or (2) if the directors remaining in office constitute fewer than a quorum of the Board, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office. If the vacant office was held by a director elected by a voting group of shareholders, only the holders of shares of that voting group are entitled to vote to fill the vacancy if it is filled by the shareholders. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs. 15 The term of a director elected to fill a vacancy expires at the next shareholders' meeting at which directors are elected. However, if his term expires, he shall continue to serve until his successor is elected and qualified or until there is a decrease in the number of directors. Section 3.12 Director Compensation. Unless otherwise provided in the articles, by resolution of the Board of Directors, each director may be paid his expenses, if any, of attendance at each meeting of the Board of Directors, and may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or both. No such payment shall preclude any director from serving the corporation in any capacity or receiving compensation therefor. Section 3.13 Director Committees. (a) Creation of Committees. Unless the articles of incorporation provide otherwise, the Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee must have two or more members, who serve at the pleasure of the Board of Directors. (b) Selection of Members. The creation of a committee and appointment of members to it must be approved by the greater of (1) a majority of all the directors in office when the action is taken or (2) the number of directors required by the articles of incorporation to take such action, (or if not specified in the articles the numbers required by Section 3.7 of this Article III to take action). (c) Required Procedures. Sections 3.4, 3.5, 3.6, 3.7, 3.8, and 3.9 of this Article III, which govern meetings, action without meetings, notice and waiver of notice, quorum and voting requirements of the Board of Directors, apply to committees and their members. (d) Authority. Unless limited by the articles of incorporation, each committee may exercise those aspects of the authority of the Board of Directors which the Board of Directors confers upon such committee in the resolution creating the committee. Provided, however, a committee may not: (1) authorize distributions; (2) approve or propose to shareholders action that the New Hampshire Business Corporation Act requires be approved by shareholders; 16 (3) fill vacancies on the Board of Directors or on any of its committees; (4) amend the articles of incorporation pursuant to the authority of directors, to do so granted by Section 10.02 of the New Hampshire Business Corporation Act, (5) adopt, amend, or repeal bylaws; (6) approve a plan of merger not requiring shareholder approval; (7) authorize or approve reacquisition of shares, except according to a formula or method prescribed by the Board of Directors; or (8) authorize or approve the issuance or sale or contract for sale of shares or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except that the Board of Directors may authorize a committee (or a senior executive officer of the corporation) to do so within limits specifically prescribed by the Board of Directors. ARTICLE IV OFFICERS Section 4.1 Number of Officers. The officers of the corporation shall be a president, a secretary, and a treasurer, each of whom shall be appointed by the Board of Directors. Such other officers and assistant officers as may be deemed necessary, including any vice presidents, may be appointed by the Board of Directors. If specifically authorized by the Board of Directors, an officer may appoint one or more officers or assistant officers. The same individual may simultaneously hold more than one office in the corporation. Section 4.2 Appointment and Term of Office. The officers of the corporation shall be appointed by the Board of Directors for a term as determined by the Board of Directors. (The designation of a specified term grants to the officer no contract rights, and the Board can remove the officer at any time prior to the termination of such term.) If no term is specified, they shall hold office until they resign, die, or until they are removed in the manner provided in Section 4.3 of this Article IV. 17 Section 4.3 Removal of Officers. Any officer or agent may be removed by the Board of Directors at any time, with or without cause. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of itself create contract rights. Section 4.4 President. The president shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and of the Board of Directors. The president may sign, with the secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time. Section 4.5 Vice Presidents. If appointed, in the absence of the president or in the event of his death, 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 at the time of their election, or in the absence of any designation, then in the order of their appointment) 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. (If there is no vice president, then the treasurer shall perform such duties of the president.) Any vice president may sign, with the secretary or an assistant secretary, certificates for shares of the corporation the issuance of which have been authorized by resolution of the Board of Directors; 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. Section 4.6 The Secretary. The secretary shall: 18 (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these bylaws or as required by law; (c) be custodian of the corporate records and of any seal of the corporation and if there is a seal of the corporation, see that it is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) when requested or required, authenticate any records of the corporation; (e) keep a register of the post office address of each shareholder which shall be furnished to the secretary by such shareholder; (f) sign with the president, or vice president, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (g) have general charge of the stock transfer books of the corporation; and (h) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the president or by the Board of Directors. Section 4.7 The Treasurer. The treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositaries as shall be selected by the Board of Directors; and (c) in general perform all of the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him by the president or by the Board of Directors. If required by the Board of Directors, the treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. 19 Section 4.8 Assistant Secretaries and Assistant Treasurers. The assistant secretaries, when authorized by the Board of Directors, may sign with the president or a vice president certificates for shares of the corporation the issuance of which shall have been authorized by a resolution of the Board of Directors. 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. The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or the treasurer, respectively, or by the president or the Board of Directors. Section 4.9 Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES Section 5.1 Indemnification of Directors. Unless otherwise provided in the articles, the corporation shall indemnify any individual made a party to a proceeding because he is or was a director of the corporation, against liability incurred in the proceeding, but only if such indemnification is both (i) determined permissible and (ii) authorized, as defined in subsection (a) of this Section 5.1. (Such indemnification is further subject to the limitation specified in subsection (c).) (a) Determination and Authorization. The corporation shall not indemnify a director under this Section 5.1 of Article V unless: (1) Determination. A determination has been made in accordance with the procedures set forth in Section 8.55(b) of the New Hampshire Business Corporation Act that the director met the standard of conduct set forth in subsection (b) below, and (2) Authorization. Payment has been authorized in accordance with the procedures set forth in Section 8.55(c) of the New Hampshire Business Corporation Act based on a conclusion that the expenses are reasonable, the corporation has the financial ability to make the payment, and the financial resources of the corporation should be devoted to 20 this use rather than some other use by the corporation. (b) Standard of Conduct. The individual shall demonstrate that: (1) he conducted himself in good faith; and (2) he reasonably believed: (i) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests; (ii) in all other cases, that his conduct was not opposed to its best interest; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. The corporation shall not indemnify a director under this Section 5.1, Article V: (1) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or (2) in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. (c) Indemnification in Derivative Actions Limited. Indemnification permitted under this Section 5.1 of Article V in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding. Section 5.2 Advance Expenses for Directors. If a determination is made, following the procedures of Section 8.55(b) of the New Hampshire Business Corporation Act that the director has met the following requirements; and if an authorization of payment is made, following the procedures and standards set forth in Section 8.55(c) of the New Hampshire Business Corporation Act, then unless otherwise provided in the articles of incorporation, the company shall pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding, if: 21 (1) the director furnishes the corporation a written affirmation of his good faith belief that he has met the standard of conduct described in Section 5.1 of this Article V; (2) the director furnishes the corporation a written undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet the standard of conduct (which undertaking must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment); and (3) a determination is made that the facts then known to those making the determination would not preclude indemnification under Section 5.1 of this Article V or Sections 8.50 through 8.58 of the New Hampshire Business Corporation Act. Section 5.3 Indemnification of Officers, Agents, and Employees Who Are Not Directors. Unless otherwise provided in the articles of incorporation, the Board of Directors may indemnify and advance expenses to any officer, employee, or agent of the corporation, who is not a director of the corporation, to any extent consistent with public policy, as determined by the general or specific action of the Board of Directors. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 6.1 Certificates for Shares. (a) Consent. Certificates representing shares of the corporation shall at minimum, state on their face the name of the issuing corporation and that it is formed under the laws of the State of New Hampshire; the name of the person to whom issued; and the number and class of shares and the designation of the series, if any, the certificate represents; and be in such form as determined by the Board of Directors. Such certificates shall be signed (either manually or by facsimile) by the president or a vice president and by the secretary or an assistant secretary and may be sealed with a corporate seal or a facsimile thereof. Each certificate for shares shall be consecutively numbered or otherwise identified. (b) Legend as to Class or Series. If the corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable 22 to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the Board of Directors to determine variations for future series) must be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the corporation will furnish the shareholder this information on request in writing and without charge. (c) Shareholder List. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. (d) Transferring Shares. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed, or mutilated certificate a new one may be issued therefor upon such terms and indemnity to the corporation as the Board of Directors may prescribe. Section 6.2 Shares Without Certificates. (a) Issuing Shares Without Certificates. Unless the articles of incorporation provide otherwise, the Board of Directors may authorize the issue of some or all the shares of any or all of its classes or series without certificates. The authorization does not affect shares already represented by certificates until they are surrendered to the corporation. (b) Information Statement Required. Within a reasonable time after the issue or transfer of shares without certificates, the corporation shall send the shareholder a written statement containing at minimum: (1) the name of the issuing corporation and that it is organized under the law of this State; (2) the name of the person to whom issued; and (3) the number and class of shares and the designation of the series, if any, of the issued shares. If the corporation is authorized to issue different classes of shares or different series within a class, the written statement shall describe the designations, relative rights, preferences, and limitations applicable to each class and the variation in rights, preferences, and limitations determined for each series (and the 23 authority of the Board of Directors to determine variations for future series). Section 6.3 Registration of the Transfer of Shares. Registration of the transfer of shares of the corporation shall be made only on the stock transfer books of the corporation. In order to register a transfer, the record owner shall surrender the shares to the corporation for cancellation, properly endorsed by the appropriate person or persons with reasonable assurances that the endorsements are genuine and effective. Unless the corporation has established a procedure by which a beneficial owner of shares held by a nominee is to be recognized by the corporation as the owner, the person in whose name shares stand on the books of the corporation shall be deemed by the corporation to be the owner thereof for all purposes. Section 6.4 Restrictions on Transfer of Shares Permitted. The Board of Directors (or shareholders) may impose restrictions on the transfer or registration of transfer of shares (including any security convertible into, or carrying a right to subscribe for or acquire shares). A restriction does not affect shares issued before the restriction was adopted unless the holders of the shares are parties to the restriction agreement or voted in favor of the restriction. A restriction on the transfer or registration of transfer of shares may be authorized: (1) to maintain the corporation's status when it is dependent on the number or identity of its shareholders; (2) to preserve exemptions under federal or state securities law; (3) for any other reasonable purpose. A restriction on the transfer or registration of transfer of shares may: (1) obligate the shareholder first to offer the corporation or other persons (separately, consecutively, or simultaneously) an opportunity to acquire the restricted shares; (2) obligate the corporation or other persons (separately, consecutively, or simultaneously) to acquire the restricted shares; 24 (3) require the corporation, the holders or any class of its shares, or another person to approve the transfer of the restricted shares, if the requirement is not manifestly unreasonable; (4) prohibit the transfer of the restricted shares to designated persons or classes of persons, if the prohibition is not manifestly unreasonable. A restriction on the transfer or registration of transfer of shares is valid and enforceable against the holder or a transferee of the holder if the restriction is authorized by this section and its existence is noted conspicuously on the front Xorback of the certificate or is contained in the information statement required by Section 6.2 of this Article VI with regard to shares issued without certificates. Unless so noted, a restriction is not enforceable against a person without knowledge of the restriction. Section 6.5 Acquisition of Shares. The corporation may acquire its own shares and unless otherwise provided in the articles of incorporation, the shares so acquired constitute authorized but unissued shares. If the articles of incorporation prohibit the reissue of acquired shares, the number of authorized shares is reduced by the number of shares acquired, effective upon amendment of the articles of incorporation, which amendment shall be adopted by the shareholders or the Board of Directors without shareholder action. The articles of amendment must be delivered to the Secretary of State and must set forth: (1) the name of the corporation; (2) the reduction in the number of authorized shares, itemized by class and series; and (3) the total number of authorized shares, itemized by class and series, remaining after reduction of shares. ARTICLE VII DISTRIBUTIONS Section 7.1 Distributions. The Board of Directors may authorize, and the corporation may make, distributions (including dividends on its outstanding shares) in the manner and upon the terms and conditions provided by law and in the corporation's articles of incorporation. 25 ARTICLE VIII CORPORATE SEAL Section 8.1 Corporate Seal. The Board of Directors may provide a corporate seal which may be circular in form and have inscribed thereon any designation including the name of the corporation, New Hampshire as the state of incorporation, and the words "Corporate Seal." ARTICLE IX EMERGENCY BYLAWS Section 9.1 Emergency Bylaws. Unless the articles of incorporation provide otherwise, the following provisions of this Article IX, Section 9.1 "Emergency Bylaws" shall be effective during an emergency which is defined as when a quorum of the corporation's directors cannot be readily assembled because of some catastrophic event. During such emergency: (a) Notice of Board Meetings. Any one member of the Board of Directors or any one of the following officers: president, any vice president, secretary, or treasurer, may call a meeting of the Board of Directors. Notice of such meeting need be given only to those directors whom it is practicable to reach, and may be given in any practical manner, including by publication and radio. Such notice shall be given at least six hours prior to commencement of the meeting. (b) Temporary Directors and Quorum. One or more officers of the corporation present at the emergency board meeting, as is necessary to achieve a quorum, shall be considered to be directors for the meeting, and shall so serve in order of rank, and within the same rank, in order of seniority. In the event that less than a quorum (as determined by Article III, Section 3.6) of the directors are present (including any officers who are to serve as directors), those directors present (including any officers serving as directors) shall constitute a quorum. (c) Actions Permitted to Be Taken. The board as constituted in paragraph (b), and after notice as set forth in paragraph (a) may: (1) Officers' Powers. Prescribe emergency powers to any officer of the corporation; 26 (2) Delegation of Any Power. Delegate to any officer or director, any of the powers of the Board of Directors; (3) Lines of Succession. Designate lines of succession of officers and agents, in the event that any of them are unable to discharge their duties; (4) Relocate Principal Place of Business. Relocate the principal place of business, or designate successive or simultaneous principal places of business; (5) All Other Actions. Take any other action, convenient, helpful, or necessary to carry on the business of the corporation. ARTICLE X AMENDMENTS Section 10.1 Amendments. The corporation's Board of Directors may amend or repeal the corporation's bylaws unless: (1) the articles of incorporation or the New Hampshire Business Corporation Act reserve this power exclusively to the shareholders in whole or part; or (2) the shareholders in adopting, amending, or repealing a particular bylaw provide expressly that the Board of Directors may not amend or repeal that bylaw; or (3) the bylaw either establishes, amends, or deletes, a supermajority shareholder quorum or voting requirement (as defined in Section 2.8 of Article II). Any amendment which changes the voting or quorum requirement for the Board must comply with Article III, Section 3.8, and for the shareholders, must comply with Article II, Section 2.8. The corporation's shareholders may amend or repeal the corporation's bylaws even though the bylaws may also be amended or repealed by its Board of Directors. This version of the corporation's bylaws is dated December 21, 1993. 27 EX-3.65 63 file062.txt CERT. OF INCORPORATION OF NETWORK AUDIT CERTIFICATE OF INCORPORATION OF NAS MERGER SUBSIDIARY, INC. --------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is NAS Merger Subsidiary, Inc. SECOND: The address of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is 2 otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on March 22, 2000. /s/ Robert L. Lawrence --------------------------- Robert L. Lawrence Incorporator 3 CERTIFICATE OF MERGER OF NETWORK AUDIT SYSTEMS, INC. (a New York corporation) AND NAS MERGER SUBSIDIARY, INC. (a Delaware corporation) ---------------- It is hereby certified that: 1. The constituent business corporations participating in the merger herein certified are: (i) Network Audit Systems, Inc., which is incorporated under the laws of the State of New York ("Network"); (ii) NAS Merger Subsidiary, Inc., which is incorporated under the laws of the State of Delaware ("Merger Sub"). 2. An Agreement and Plan of Merger (the "Merger Agreement"), dated as of April 11, 2000, among Network and Merger Sub has been approved, adopted, certified, executed, and acknowledged by each of the aforesaid constituent corporations in accordance with the provisions of subsection (c) of Section 252 of the General Corporation Law of the State of Delaware, to wit, by Network in accordance with the provisions of the Business Corporation Law of the State of New York and by Merger Sub in the same manner as provided for in Section 251 of the General Corporation Law of the State of Delaware. 3. The name of the surviving corporation (the "Surviving Corporation") in the merger herein certified is NAS Merger Subsidiary, Inc. which will continue its existence as the Surviving Corporation under the new name "Network Audit Systems, Inc." upon the effective date of said merger pursuant to the provisions of the General Corporation Law of the State of Delaware. 4. The Certificate of Incorporation of Merger Sub, as now in force and effect, shall be the Certificate of Incorporation of the Surviving Corporation. The Certificate of Incorporation of the Surviving Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is NETWORK AUDIT SYSTEMS, INC." 5. The executed Merger Agreement between the aforesaid constituent corporations is on file at the principal place of business of the Surviving Corporation, the address of which is as follows: Network Audit Systems, Inc. 318 S. Clinton Street, Suite 206 Syracuse, NY 13202 6. A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request, and without costs, to any stockholder of each of the aforesaid constituent corporations. 7. The authorized capital stock of Network, the constituent corporation which is not a corporation under the General Corporation Law of the State of Delaware, is as follows: 200 shares of common stock, no par value. Dated: As of April 11, 2000. NAS Merger Subsidiary, Inc. By: /s/ Robert Schiller ------------------------ Name: Robert Schiller Title: President 2 EX-3.66 64 file063.txt BYLAWS OF NETWORK AUDIT SYSTEMS, INC. Ex-3.66 BYLAWS OF NETWORK AUDIT SYSTEMS, INC. A DELAWARE CORPORATION -------------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non- election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. 2 SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy 4 of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alterative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of 6 conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or 7 more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other 8 powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No 9 officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock 10 issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions 11 SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends 12 such sum or sums as the Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.67 65 file064.txt CERT. OF INCORPORATION & AMENDMENTS THERETO CERTIFICATE OF INCORPORATION OF NTI MERGER SUBSIDIARY, INC. --------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is NTI Merger Subsidiary, Inc. SECOND: The address of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is 2 otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on February 8, 2000. /s/ Robert L. Lawrence ---------------------------------- Robert L. Lawrence Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF NTI MERGER SUBSIDIARY, INC. ---------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is NTI Merger Subsidiary, Inc. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is New Technologies Armor, Inc." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. Dated: March 22, 2000. NTI MERGER SUBSIDIARY, INC. By: /s/ Nicholas B. Winiewicz --------------------------- Nicholas B. Winiewicz Vice President EX-3.68 66 file065.txt BYLAWS BYLAWS OF NEW TECHNOLOGIES ARMOR, INC. A DELAWARE CORPORATION ----------------- ARTICLE I STOCKHOLDERS SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and 2 the number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II BOARD OF DIRECTORS SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least one and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. 4 SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by a majority of the directors then in office, though less than a quorum, or by a sole 5 remaining director, and the directors so chosen shall hold office until the next annual election of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. 6 SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III OFFICERS SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held be the same person. Section 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize 7 any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or and Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Director and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Director, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform 8 such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV SHARES AND THEIR TRANSFER SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry 10 offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V GENERAL PROVISIONS SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which 11 they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. 12 ARTICLE VI INDEMNIFICATION The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII AMENDMENTS These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws by contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.69 67 file066.txt CERTIFICATE OF FORMATION OF O'GARA-HESS CERTIFICATE OF INCORPORATION OF O'GARA COMPANIES, A DELAWARE CORPORATION FIRST. The name of this corporation shall be: O'GARA COMPANIES, A DELAWARE CORPORATION SECOND. Its registered office in the State of Delaware is to be located at 1013 Centre Road, in the City of Wilmington, County of New Castle 19805, and its registered Agent at such address is CORPORATION SERVICE COMPANY. THIRD. The purpose or purposes of the corporation shall be: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of stock which this corporation is authorized to issue is: One Hundred Thousand (100,000) shares without par value. FIFTH. The name and address of the incorporator is as follows: Jane S. Krayer Corporation Service Company 1013 Centre Road Wilmington, DE 19805 SIXTH. The Board of Directors shall have the power to adopt, amend or repeal the by-laws. SEVENTH. No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law, (i) for breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct of a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which director derived an improper personal benefit. No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. EIGHTH. The corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said Section from and against any and all of the expenses, liabilities or other matters referred to or covered by said Section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. IN WITNESS WHEREOF, The undersigned, being the incorporator hereinbefore named, has executed, signed and acknowledged this certificate of incorporation this nineteenth day of December, A.D. 1988. /s/ Jane S. Krayer --------------------------- Jane S. Krayer Incorporator CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION O'GARA COMPANIES, A DELAWARE CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of O'GARA COMPANIES, A DELAWARE CORPORATION resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said Corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows: RESOLVED, That Article First of the Corporation's Certificate of Incorporation shall be, subject to the approval by the Corporation's shareholders upon submission of the proposal to them for a vote (which submission is hereby directed), amended in its entirety to read as follows: "FIRST. The official corporate name of this Corporation shall be: O'Gara-Hess & Eisenhardt Armoring Company." SECOND: That thereafter, pursuant to resolution of its Board of Directors, the foregoing resolution was approved by the Corporation's stockholders upon submission of the resolution to them for a vote, pursuant to Section 228 of the Delaware General Corporation Law. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said O'Gara Companies has caused this Certificate to be executed by Paul M. Engelhart, its President, and Wilfred T. O'Gara its Secretary, this 31st day of January, 1990. O'GARA COMPANIES, A DELAWARE CORPORATION By: /s/ Paul M. Engelhart ------------------------------ President ATTEST: /s/ Wilfred T. O'Gara ------------------------------ Secretary CERTIFICATE OF CONVERSION FROM A CORPORATION TO A LIMITED LIABILITY COMPANY OF O'GARA-HESS & EISENHARDT ARMORING COMPANY (Under Section 266 of the General Corporation Law) O'GARA-HESS & EISENHARDT ARMORING COMPANY, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows: FIRST: The name of the corporation immediately prior to the filing of this Certificate of Conversion is O'GARA-HESS & EISENHARDT ARMORING COMPANY (the "Corporation") and the name that the Corporation was originally incorporated under is O'GARA COMPANIES, A DELAWARE CORPORATION. SECOND: The date the Certificate of Incorporation of the Corporation was filed on is December 19,1988. THIRD: The name of the limited liability company into which the Corporation shall be converted is O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. FOURTH: The conversion of the Corporation shall be effective on June 30, 2003. FIFTH: The conversion of the Corporation herein certified has been has been approved in accordance with the provisions of Sections 228 and 266 of the General Corporation Law of Delaware. Dated: June 30, 2003 O'GARA-HESS & EISENHARDT ARMORING COMPANY By: /s/ Robert R. Schiller ------------------------------ Name: Robert R. Schiller Title: Chairman of the Board and Vice President CERTIFICATE OF FORMATION OF O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "Delaware Limited Liability Company Act"), hereby certifies that: FIRST: The name of the limited liability company (hereinafter called the "Limited Liability Company") is O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. SECOND: The address of the registered office and the name and the address of the registered agent of the limited Liability Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are: Corporation Service Company 2711 Centerville Road, Suite 400 Wilmington, Delaware 19808 THIRD: The Limited Liability Company shall, to the fullest extent permitted by the provisions of the Delaware Limited Liability Company Act, as the same may be amended and supplemented, indemnify the members, managers, officers and directors of the Limited Liability Company. FOURTH: The formation of the Limited Liability Company shall be effective on June 30, 2003. Dated: June 30, 2003 /s/ Robert R. Schiller --------------------------- Robert R. Schiller Authorized Person EX-3.70 68 file067.txt OPERATING AGREEMENT OF O'GARA-HESS OPERATING AGREEMENT OF O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. This Operating Agreement (this "Agreement") of O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. (the "Company"), is entered into as of the 1st day of May, 2003 by and between ARMOR HOLDINGS MOBILE SECURITY, L.L.C. (the "Member") and the Company. Pursuant to and in accordance with the Limited Liability Company Act of the State of Delaware, as amended from time to time (the "Act"), the Member hereby agrees as follows: ARTICLE I GENERAL 1. Formation. The Company was initially formed as a Delaware corporation by the filing of a Certificate of Incorporation pursuant to the General Company Law of the State of Delaware (the "DGCL") on December 19, 1988 under the name "O'GARA COMPANIES". The Company subsequently changed its name to "O'GARA-HESS & EISENHARDT ARMORING COMPANY" pursuant to a Certificate of Amendment filed on February 16, 1990. The Company was formed as a Delaware limited liability company on June 30, 2003 by the filing with the Secretary of State of Delaware (a) a Certificate of Conversion pursuant to the DGCL converting the Company from a corporation to a limited liability company and (b) a Certificate of Formation pursuant to the Act under the name "O'GARA-HESS & EISENHARDT ARMORING COMPANY L.L.C." 2. Name. The name of the limited liability company shall be O'GARA-HESS & EISENHARDT ARMORING COMPANY L.L.C. 3. Registered Office; Principal Place of Business. The name and address of the Company's registered agent for service of process in the State of Delaware is Company Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The managers may change the registered agent, change the location of the Company's principal place of business, or establish additional places of business at such locations as such managers may from time to time determine upon compliance with the Act. 4. Term. The term of the Company commenced as of the date of filing of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware and shall be perpetual unless the Company shall be dissolved and its affairs wound up as provided in the Certificate of Formation, in this Agreement or as otherwise provided in the Act. 1 5. Purpose. The Company is formed for the purpose of engaging in any lawful act or activity for which limited liability companies may be organized under the Act, and engaging in any other lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing. ARTICLE II CAPITAL; DISTIBUTIONS 1. Capital Contributions. The initial capitalization of the Company by the members is set forth on Schedule A. 2. Additional Contributions. The members are not required to make any additional capital contribution to the Company, provided however, that additional capital contributions may be made at such time and in such amounts as the members shall determine. 3. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the members as set forth on Schedule A. 4. Distributions. Distributions shall be made to the members at the times and in the aggregate amounts determined by the members and in accordance with the same percentages as profits and losses are allocated. ARTICLE III MEMBERS 1. Initial Member; Membership Interests. The initial member of the Company shall be ARMOR HOLDINGS MOBILE SECURITY, L.L.C. having an address at 1400 Marsh Landing Parkway, Suite 112, Jacksonville, Florida 32250. The Initial Member is authorized to admit additional members and/or create different classes of members. "Membership Interest" means a member's entire interest in the Company, including the right to participate in the management of the business and affairs of the Company, including the right to vote on, consent to, or otherwise participate in any decision or action of or by the Members granted pursuant to this Agreement and the Act, and to receive allocations as net profits, net losses and distributions. 2. Annual Meetings. The annual meeting of members for the purpose of electing managers and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Managers and stated in the notice of the meeting. At each annual meeting, the members entitled to vote shall elect a Board of Managers and transact such other business as shall be stated in the notice of the meeting. 3. Special Meetings. Special meetings of the members for any purpose or purposes may be called by the President or Secretary, or by resolution of the managers. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware 2 as specified in the notice thereof. 4. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Formation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given to each member entitled to vote thereat at his address as it appears on the records of the Company not less than ten (10) nor more than sixty (60) days prior to the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous written consent of all the members entitled to vote thereat. 5. Quorum. Except as otherwise expressly required by law, the Certificate of Formation, or this Agreement, the presence, in person or by proxy, of members owning a majority of the Membership Interests of the Company entitled to vote shall constitute a quorum at all meetings of members. In the event a quorum shall not be present at any meeting, a majority of the Membership Interests entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice otherwise than by announcement at the meeting. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those members entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. 6. Voting. Each member shall, except as otherwise provided by law or by the Certificate of Formation, at every meeting of the members be entitled to vote in person or by proxy, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Upon the demand of any member, any votes cast at such meeting shall be cast by ballot. Managers shall be elected by a plurality of the Membership Interests present in person or represented by proxy at the meeting and entitled to vote on the election of managers. Any other action shall be authorized by a vote of a majority of the Membership Interests except as may be otherwise prescribed by the laws of the State of Delaware or the Certificate of Formation. A complete list of the members entitled to vote at any meeting of members, arranged in alphabetical order with the address of each and the Membership Interest of each, shall be open to the examination of any member, 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 thereof and may be inspected by any member who is present. 7. Action Without Meeting. Unless otherwise provided in the Certificate of Formation any action required or permitted to be taken at any meeting of members 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 Membership Interests of the Company 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 Membership Interests entitled to vote thereon were present and voted. Prompt notice of the taking of the action without a meeting by less than unanimous written consent shall be given to those members who have not consented in writing. 3 ARTICLE IV MANAGERS 1. General Powers. The Board of Managers shall exercise all of the powers of the Company except such as are by law, or by the Certificate of Formation of the Company or by this Agreement conferred upon or reserved to the members. 2. Number, Qualification and Term of Office. The number of managers shall be no less than one but no more than eight, which number shall be fixed by the members or the Board of Managers of the Company. The managers shall be elected at the annual meeting of the members and each manager shall serve until his successor shall have been elected and shall qualify. Managers need not be members. 3. Quorum. A majority of the managers shall constitute a quorum for the transaction of business. In the absence of a quorum, a majority of the managers present may adjourn any meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. 4. Place of Meeting, etc. The Board of Managers may hold its meetings, have one or more offices and keep the books and records of the Company at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. 5. Regular Meetings. A regular meeting of the Board of Managers shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of members, and other regular meetings of said Board shall be held at times and places as said Board shall direct. 6. Special Meetings. Special meetings of the Board of Managers may be called by the President or Secretary on the written request of the managers and shall give at least two (2) days notice of the time and place of each special meeting 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, without prior notice and without a vote if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. 8. Organization. At each meeting of the Board of Managers, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a manager chosen by a majority of the managers present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. 4 9. Resignations. Any manager, member of a committee, or officer may resign at any time by giving written notice to the President or the Secretary of the Company. The resignation shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 10. Removal. Any manager may be removed with or without cause, by the affirmative vote of a majority of the Membership Interests. 11. Vacancies. If the office of any manager, member of a committee or other officer becomes vacant, the remaining managers in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until their successors are duly elected and qualified, or until their earlier resignation or removal. 12. Compensation of Managers. Managers may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to preclude any manager from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for their services and expenses. 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Managers, at any time the number of managers shall be more than two (2), the managers may designate one or more committees of the Board of Managers, each committee to consist of two or more managers. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Managers in the management of the business and affairs of the Company, including the power and authority to authorize the seal of the Company to be affixed to all papers that may require it. No committee, however, shall have the power to amend the Certificate of Formation, amend this Agreement, declare distributions or admit new members of the Company. Further, the Board of Managers may designate one or more managers as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Managers, and 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 or they constitute a quorum, may unanimously appoint another member of the Board of Managers to act at the meeting in the place of any such absent or disqualified member. 14. Participation in Meetings. Members of the Board of Managers or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. 5 ARTICLE V OFFICERS 1. Number. The officers of the Company shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Managers, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article V. Any number of offices may be held by the same person. 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Managers at their first meeting after each annual meeting of the members of the Company. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. 3. Subordinate Officers. The Board of Managers or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Company as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Managers or the Chief Executive Officer may from time to time prescribe. The Board of Managers or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. 7. President. The President shall be the Chief Executive Officer of the Company and shall have general direction of the affairs of the Company and general supervision over its several officers, subject, however, to the control of the Board of Managers, and in general shall perform such duties and, subject to the other provisions of this Agreement, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Managers. 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of Membership Interests of the Company and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Managers, the President or prescribed by this Agreement. 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the members, the Board of Managers and any committee when so required, shall see that all notices are duly given in accordance with the provisions of this Agreement and as required by law, shall be custodian of the records and the 6 seal of the Company and see that the seal is affixed to all documents, the execution of which on behalf of the Company under its seal is duly authorized in accordance with the provisions of this Agreement, shall keep or cause to be kept a register of the post office address of each member, may sign with the Chairman of the Board, the President or any Vice President certificates of Membership Interests of the Company, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Managers, the President or prescribed by this Agreement. 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Managers or prescribed by this Agreement. 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Company, and deposit all such funds in the name of the Company in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of this Agreement, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any company controlled by the Company to any of the managers of the Company upon application during business hours at the office of the company, or such other company, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Company from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of Membership Interests of the Company, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Managers or the President or prescribed by this Agreement. 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Managers or prescribed by this Agreement. 14. Other Officers. Such officers as the Board of Managers may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Managers. The Board of Managers may delegate to any other officer of the Company the power to choose such other officers and to prescribe their respective duties and powers. ARTICLE VI MEMBERSHIP INTERESTS AND THEIR TRANSFER 1. Certificates of Membership Interests. Certificates for Membership Interests of the Company shall be in such form not inconsistent with law as shall be approved by 7 the Board of Managers. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Company, and the seal of the Company is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. 2. Transfer of Membership Interests. Transfer of Membership Interests of the Company shall be made only on the books of the Company by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Company, or a transfer agent of the Company, if any, on surrender of the certificate or certificates for such Membership Interests properly endorsed. A person in whose name Membership Interests stand on the books of the Company shall be deemed the owner thereof as regards the Company, and the Company shall not be bound to recognize any equitable or other claim to or interest in such Membership Interests 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 the State of Delaware. 3. Lost Destroyed and Mutilated Certificates. The holder of any certificates issued by the Company shall immediately notify the Company of any loss, destruction or mutilation of the certificate or the failure to receive a certificate issued by the Company, and the Board of Managers or the Secretary of the Company may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of Membership Interests, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Managers with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates issued by the Company which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 4. Fixing Date for Determination of Members of Record. In order that the Company may determine the members entitled to notice of or to vote at any meeting of members or any adjournment thereof, to express consent to action in writing without a meeting, to receive payment of any distribution or allotment of any rights, to exercise any rights in respect of any change, conversion or exchange of Membership Interests or for the purpose of any other lawful action, the Board of Managers 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, and only such members as shall be members of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such action, to receive payment of such distribution or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any Membership Interests on the books of the Company after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining members entitled to notice of or to vote at a meeting of members shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 8 ARTICLE VII GENERAL PROVISIONS 1. Fiscal Year. The fiscal year of the Company shall end on such date of each year as shall be determined by the Board of Managers of the Company. 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Formation or this Agreement to be given, 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. 3. Seal. The Board of Managers shall provide a suitable seal containing the name of the Company, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. 4. Disbursements. All checks or demands for money and notes of the Company shall be signed by such officer or officers or such other person or persons as the Board of Managers may from time to time designate. 5. Indemnification. No members shall have any liability for the obligations or liabilities of the Company nor shall be liable to the Company for any breach of duty in such capacity, unless otherwise required by law. The Company shall, to the fullest extent permitted by the Act, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the Act from and against any and all of the expenses, liabilities or other matters referred to in or covered by the Act, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any agreement, vote of members or disinterested managers or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a manager, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 6. Amendments. Amendments may be made to this Agreement from time to time with the written consent of all of the Members. In making any amendment, there shall be prepared and filed for recordation by the Member such documents and certificates as shall be required to be prepared and filed under the Act and under the laws of the other jurisdictions under the laws of which the Company is then formed or otherwise required to make such filing. 7. Admission of Additional Members. Upon the written consent of all of the members, admit one or more additional members of the Company may be admitted. 8. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. 9. Successors and Assigns. This Agreement shall be binding upon and inure to the 9 benefit of the Members, Assignees, and their respective legal representatives and successors. 10. Counterparts. This Agreement may be executed in multiple counterparts, facsimile signature constituting an original, each of which may bear the signatures of less than all the parties, but all of which together shall constitute one instrument. 11. Entire Agreement; Severability. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and no party hereto shall be bound by any communications between them on the subject matter of this Agreement unless in writing and bearing a date contemporaneous with or subsequent to the date of this Agreement. Any prior written agreements shall, upon the execution of his Agreement, be null and void. The parties agree that if any term or provision of this Agreement contravenes or is invalid under any federal, state or local law, court decision, rule, ordinance or regulation, this Agreement shall, as to the jurisdiction under which such legal authority is promulgated or rendered, be construed as if it did not contain the offending term or provision, and the remaining provisions of this Agreement shall not be affected thereby; provided, however, that if the removal of such offending term or provision materially alters the burdens or benefits of any of the parties under this Agreement, the parties agree to negotiate in good faith such modifications to this Agreement as are appropriate to insure the burdens and benefits of each party under such modified Agreement are reasonably comparable to the burdens and benefits originally contemplated and expected. 12. Captions. The captions are inserted for convenience of reference only and shall not affect the construction of this Agreement. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Operating Agreement. O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. By: /s/ Robert R. Schiller ------------------------ Name: Robert R. Schiller Title: Sole Manager ARMOR HOLDINGS MOBILE SECURITY, L.L.C. By: /s/ Robert R. Schiller ------------------------ Name: Robert R. Schiller Title: Sole Manager 10 EXHIBIT A Capital Allocation of Membership Name Contribution Profits and Losses Interests - ----------------------- ------------ ------------------ ---------- ARMOR HOLDINGS MOBILE SECURITY, L.L.C. $100.00 100% 100% 11 EX-3.71 69 file068.txt CERT. OF INCORPORATION OF PRO-TECH ARMORED The Commonwealth of Massachusetts OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL J. CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. 02108 ARTICLES OF ORGANIZATION (Under G.L. Ch. 156B) Incorporators NAME POST OFFICE ADDRESS Include given name in full in case of natural persons: in case of a corporation, give state of incorporation. David C. Katz 29 Wendell Avenue Pittsfield, MA 01201 The above-named incorporator(s) do hereby associate (themselves) with the intention of forming a corporation under the provisions of General Laws. Chapter 156B and hereby state(s): - -------- Name 1. The name by which the corporation shall be known is: Approved PRO-TECH ARMORED PRODUCTS OF MASSACHUSETTS, INC. 2. The purpose for which the corporation is formed is as follows: A. To manufacture, buy, sell and deal with products of all kinds for protection of persons and property for military and non-military purposes. B. To carry on any business or other activity which may be lawfully carried on by a corporation organized under the Business Corporation Law of the Commonwealth of Massachusetts, whether or not related to those referred to in the foregoing paragraph. C [_] P [_] M [_] R.A. [_] Note: If the space provided under any article or item on this form is insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of paper leaving a left hand margin of at least 1 inch for - -------- binding. Additions to more than one article may be continued on a R.C single sheet so long as each article requiring each such addition is clearly indicated. 3. The total number of shares and the par value, if any, of each class of stock within the corporation is authorized as follows: ------------------------------------------------------------------ WITHOUT PAR VALUE WITH PAR VALUE -------------------------------------------------- PAR CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE AMOUNT ------------------------------------------------------------------ Preferred -0- -0- $ ------------------------------------------------------------------ ------------------------------------------------------------------ Common 15,000 -0- ------------------------------------------------------------------ *4. If more than one class is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established: None. *5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: None. *6. Other lawful provisions, if any, for the conduct and regulation of business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders: See Page -6A- attached. *If there are no provisions state "None". - 6A - 6. Other lawful provisions for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining or regulating the powers of the corporation, or of its directors or stockholders, or any class of stockholders: (A) The directors may make, amend or repeal the By-Laws in whole or in part, except with respect to any provision thereof which by law or by the By-Laws requires action by the stockholders. (B) Meetings of the stockholders may be held anywhere in the United States. (C) The corporation may be a partner in any business enterprise it would have power to conduct by itself. (D) The directors shall have the power to fix from time to time their compensation. No person shall be disqualified from holding any office by reason of any interest. In the absence of fraud, any director, officer or stockholder of this corporation individually, or any individual having any interest in any concern which is a stockholder of this corporation, or any concern in which any such directors, officers, stockholders or individuals have any interest, may be a party to, or may be pecuniarily or otherwise interested in, any contract, transaction or other act of this corporation, and (1) such contract, transaction or act shall not be in any way invalidated or otherwise affected by that fact; (2) no such director, officer, stockholder or individual shall be liable to account to this corporation for any profit or benefit realized through any such contract, transaction or act; and (3) any such director of this corporation may be counted in determining the existence of a quorum at any meeting of the directors or of any committee thereof which shall authorize any such contract, transaction or act, and may vote to authorize the same; the term "interest" including personal interest and interest as a director, officer, stockholder, trustee, member of beneficiary of any concern; and the term "concern" meaning any corporation, association, trust, partnership, firm, person or other entity other than this corporation. (E) No President, Vice President, Treasurer, Assistant Treasurer, Clerk, Assistant Clerk, member of the Executive Committee or director of the corporation shall be personally liable to the corporation or its members for monetary damages for or arising out of a breach of fiduciary duty as an officer or director notwithstanding any provision of law imposing such liability; provided, however, that the foregoing shall not eliminate or limit the liability of an officer or director to the extent it may be imposed by law (i) for a breach of the director's duty of loyalty to the corporation or its members, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the officer or director derived an improper personal benefit. The foregoing provision shall not eliminate or limit the liability of an officer or director for any act or omission occurring prior to the date upon which the foregoing provision became effective. No amendment or deletion of the foregoing provisions of this paragraph (E) which restricts or limits the limitations on liability provided hereunder to officers or directors shall apply or be effective with respect to actions and omissions of any officer or director occurring prior to the date said amendment or deletion became effective. 7. By-laws of the corporation have been duly adopted and the initial directors, president, treasurer and clerk, whose names are set out below, have been duly elected. 8. The effective date of organization of the corporation shall be the date of filing with the Secretary of the Commonwealth or if later date is desired, specify date, (not more than 30 days after the date of filing.) 9. The following information shall not for any purpose be treated as a permanent part of the Articles of Organization of the corporation. a. The post office address of the initial principal office of the corporation of Massachusetts is: 20 Keeler Street, Pittsfield, MA 01201 b. The name, residence, and post office address of each of the initial directors and following officers of the corporation are as follows: NAME RESIDENCE POST OFFICE ADDRESS ---- --------- ------------------- President: William F. McNeil 110 Roselyn Drive Same Pittsfield, MA 01201 Treasurer: Timothy F. Horrigan 40 Baldwin Avenue Same Pittsfield, MA 01201 Clerk: Philip C. Martino 1303 Holmes Road Same Pittsfield, MA 01201 Directors: William F. McNeil 110 Roselyn Drive Same Pittsfield, MA 01201 Timothy F. Horrigan 40 Baldwin Avenue Same Pittsfield, MA 01201 Philip C. Martino 1303 Holmes Road Same Pittsfield, MA 01201 c. The date initially adopted on which the corporation's fiscal year ends is: December 31 d. The date initially fixed in the by-laws for the annual meeting of stockholders of the corporation is: Third Tuesday in April e. The name and business address of the resident agent, if any, of the corporation is: N/A IN WITNESS WHEREOF and under the penalties of perjury the INCORPORATOR(S) sign(s) these Articles of Organization this 13th day of January 1988. /s/ David C. Katz - -------------------- David C. Katz - -------------------- - -------------------- The signature of each incorporator which is not a natural person must be an individual who shall show the capacity in which he act: and by signing shall represent under the penalties of perjury that he is duly authorized on its behalf to sign these Articles o Organization. EX-3.72 70 file069.txt BYLAWS OF PRO-TECH ARMORED PRODUCTS BY-LAWS OF PRO-TECH ARMORED PRODUCTS, INC. ARTICLE I Articles of Organization The name and purposes of the Corporation shall be as set forth in the Articles of Organization. These By-Laws, the powers of the Corporation and its Directors and Stockholders, and all matters concerning the conduct and regulation of the business of the Corporation, shall be subject to such provisions in regard thereto, if any, as are set forth in the Articles of Organization. All references in these By-Laws to the Articles of Organization shall be construed to mean the Articles of Organization of the Corporation as from time to time amended or restated. ARTICLE II Fiscal Year Except as from time to time otherwise determined by the Directors, the fiscal year of the Corporation shall in each year end on December 31st. ARTICLE III Meeting of Stockholders Section 1. Annual Meetings. The Annual Meeting of Stockholders shall be held on the third Tuesday in April in each year (or if that be a legal holiday in the place where the meeting is to be held, on the next succeeding full business day) at ten o'clock A.M. unless a different hour is fixed by the Board of Directors or the -1- President. The purposes for which the Annual Meeting is to be held, in addition to those prescribed by law, by the Articles of Organization or these By-Laws, may be specified by the Board of Directors or the President. If no Annual Meeting has been held on the date fixed above, a Special Meeting in lieu thereof may be held and such Special Meeting shall have, for the purposes of these By-Laws or otherwise, all the force and effect of an Annual Meeting. Section 2. Special Meetings. A Special Meeting of the Stockholders may be called at any time by the President, or by a majority of the Directors acting by vote or by written instrument or instruments signed by them. A Special Meeting of the Stockholders shall be called by the Clerk, or in case of the death, absence, incapacity or refusal of the Clerk, by any other officer, upon written application of one or more Stockholders who hold at least one-tenth part in interest of the stock entitled to vote at the meeting. Such call shall state the time, place, and purpose of the meeting. Section 3. Place of Meetings. All meetings of the Stockholders shall be held at the principal office of the Corporation in Massachusetts, unless a different place within Massachusetts or, if permitted by the Articles of Organization, elsewhere within the United States is designated by the President, or by a majority of the Directors acting by vote or by written instrument or instruments signed by them. Any adjourned session of any meeting of the Stockholders shall be held at such place within Massachusetts or, if permitted -2- by the Articles of Organization, elsewhere within the United States as is designated in the vote of adjournment. Section 4. Notice of Meetings. A written notice of the place, date and hour of all meetings of Stockholders stating the purposes of the meeting shall be given at least seven (7) days before the meeting to each Stockholder entitled to vote thereat and to each Stockholder who is otherwise entitled by law or by the Articles of Organization to such notice, by leaving such notice with him or at his residence or usual place of business, or by mailing it, postage prepaid, and addressed to such Stockholder at his address as it appears in the records of the Corporation. Such notice shall be given by the Clerk, or in case of the death, absence, incapacity or refusal of the Clerk, by any other officer or by a person designated either by the Clerk, by the person or persons calling the meeting or by the Board of Directors. Whenever notice of a meeting is required to be given a Stockholder under any provision of law, or of the Articles of Organization, or of these By-Laws, a written waiver thereof, executed before or after the meeting by such Stockholder or his attorney thereunto authorized, and filed with the records of the meeting, shall be deemed equivalent to such notice. Section 5. Quorum. At any meeting of the Stockholders, a quorum shall consist of a majority in interest of all stock issued and outstanding and entitled to vote at the meeting; except that if two or more classes or series of stock are entitled to vote on any matter as separate classes or series, then a quorum for that -3- matter shall consist of a majority in interest of all stock of that class or series issued and outstanding; and except when a larger quorum is required by law, by the Articles of Organization or by these By-Laws. Stock owned directly or indirectly by the Corporation, if any, shall not be deemed outstanding for this purpose. Any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice. Section 6. Action by Vote. When a quorum is present at any meeting, a plurality of the votes properly cast for election to any office shall elect to such office, and a majority of the vote properly cast upon any question other than an election to an office shall decide the question, except when a larger vote is required by law, by the Articles of Organization or by these By-Laws. No ballot shall be required for any election unless requested by a Stockholder present or represented at the meeting and entitled to vote in the election. Section 7. Voting. Stockholders entitled to vote shall have one vote for each share of stock held by them of record as of the date of the vote and a proportionate vote for a fractional share, unless otherwise provided by the Articles of Organization. The Corporation shall not, directly or indirectly, vote any share of its own stock. -4- Section 8. Action by Consent. Any action required or permitted to be taken at any meeting of the Stockholders may be taken without a meeting if all Stockholders entitled to vote on the matter consent to the action in writing and the written consents are filed with the records of the meetings of Stockholders. Such consents shall be treated for all purposes as a vote at a meeting. Section 9. Proxies. Stockholders entitled to vote may vote either in person or by proxy in writing dated not more than six months before the meeting named therein, which proxies shall be filed with the Clerk or other person responsible to record the proceedings of the meeting before being voted. Unless otherwise specifically limited by their terms, such proxies shall entitle the holders thereof to vote at any adjournment of such meeting but shall not be valid after the final adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by any one of them unless at or prior to exercise of the proxy the Corporation receives specific written notice to the contrary from any one of them. A proxy purporting to be executed by or on behalf of a Stockholder shall be deemed valid unless challenged at or prior to its exercise. The burden of proving invalidaty shall rest on the challenger. -5- ARTICLE IV Directors Section 1. Powers. The business of the Corporation shall be managed by a Board of Directors who shall have and may exercise all the powers of the Corporation except as otherwise reserved to the Stockholders by law, by the Articles of Organization or by these By-Laws. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled. Section 2. Number, Election and Term of Office. The Board of Directors shall consist of not less than three Directors, except that whenever there shall be only two Stockholders the number of Directors shall be not less than two, and whenever there shall be only one Stockholder the number of Directors shall be at least one. The number of Directors shall be as determined from time to time by the Stockholders and may be enlarged by vote of a majority of the Directors then in office. The Directors shall be chosen at the Annual Meeting of the Stockholders by such Stockholders as have the right to vote thereon, and each shall hold office until the next Annual Election of Directors and until his successor is chosen and qualified or until he sooner dies, resigns, is removed or becomes disqualified. No Director need be a Stockholder. -6- Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such times and places within or without the Commonwealth of Massachusetts as the Board of Directors may fix from time to time and, when so fixed, no notice thereof need be given, provided that any Director who is absent when such times and places are fixed shall be given notice of the fixing of such times and places. The first meeting of the Board of Directors following the Annual Meeting of the Stockholders may be held without notice immediately after and at the same place as the Annual Meeting of the Stockholders or the Special Meeting held in lieu thereof. If in any year a meeting of the Board of Directors is not held at such time and place, any action to be taken may be taken at any later meeting of the Board of Directors with the same force and effect as if held or transacted at such meeting. Section 4. Special Meetings. Special Meetings of the Directors may be held at any time and at any place designated in the call of the meeting, when called by the President or the Treasurer or by two or more Directors, reasonable notice thereof being given to each Director by the Secretary or an Assistant Secretary, or, if there be none, by the Clerk or Assistant Clerk, or by the officer or one of the Directors calling the meeting. -7- Section 5. Notice. It shall be reasonable and sufficient notice to a Director to send notice by mail at least forty-eight hours or by telegram at least twenty-four hours before the meeting addressed to him at his usual or last known business or residence address or to give notice to him in person or by telephone at least twenty-four hours before the meeting. Notice of a meeting need not be given to any Director if a written waiver of notice, executed by him before or after the meeting is filed with the records of the meeting, or to any Director who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him. Neither notice of a meeting nor a waiver of a notice need specify the purposes of the meeting. Section 6. Quorum At any meeting of the Directors, a quorum for any election or for the consideration of any question shall consist of a majority of the Diectors then in office. Whether or not a quorum is present, any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, and the meeting may be held as adjourned without further notice. When a quorum is present at any meeting, the votes of a majority of the Directors present shall be requisite and sufficient for election to any office and shall decide any question brought before such meeting, except in any case where a larger vote is required by law, by the Articles of Organization or by these By-Laws. -8- Section 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Directors may be taken without a meeting if all the Directors consent to the action in writing and the written consents are filed with the records of the meetings of the Directors. Such consent shall be treated for all purposes as a vote of the Directors at a meeting. Section 8. Committees. The Board of Directors, by vote of a majority of the Directors then in office, may elect from its number an Executive Committee or other committees and may delegate thereto some or all of its powers except those which by law, by the Articles of Organization, or by these By-Laws may not be delegated. Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or in such rules, its business shall be conducted so far as possible in the same manner as is provided by these By-Laws for the Board of Directors. All members of such committees shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may abolish any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings and shall upon request report its action to the Board of Directors. The Board of Directors shall have power to rescind any action of any committee, but no such rescission shall have retroactive effect. -9- ARTICLE V Officers and Agents Section 1. Number, Qualification. The officers of the Corporation shall be a President, a Treasurer, a Clerk, and such other officers, if any, as the incorporators at their initial meeting, or the Directors from time to time, may in their discretion elect or appoint. The Corporation may also have such agents, if any, as the incorporators at their initial meeting, or the Directors from time to time, may in their discretion appoint. Any officer may be, but none need be, a Director or Stockholder. The Clerk shall be a resident of Massachusetts unless the Corporation has a resident agent appointed for the purpose of service of process. Any two or more offices may be held by the same person. Any officer may be required by the Directors to give bond for the faithful performance of his duties to the Corporation in such amount and with such sureties as the Directors may determine. The premiums for such bonds may be paid by the Corporation. Section 2. Powers. Subject to law, to the Articles of Organization and to the other provisions of these By-Laws, each officer shall have, in addition to the duties and powers herein set forth, such duties and powers as are commonly incident to his office and such duties and powers as the Directors may from time to time designate. -10- Section 3. Election. The President, the Treasurer, and the Clerk shall be elected annually by the Directors at their first meeting following the Annual Meeting of the Stockholders. Other officers, if any, may be elected or appointed by the Board of Directors at said meeting or at any other time. Section 4. Tenure. Except as otherwise provided by law or by the Articles of Organization or by these By-Laws, the President, the Treasurer and the Clerk shall hold office until the first meeting of the Directors following the next Annual Meeting of the Stockholders and until their respective successors are chosen and qualified, and each other officer shall hold office until the first meeting of the Directors following the next Annual Meeting of the Stockholders and until their respective successors are chosen and qualified, unless a differenct period shall have been specified by the terms of his election or appointment, or in each case until he sooner dies, resigns, is removed or becomes disqualified. Each agent shall retain his authority at the pleasure of the Directors. Section 5. President and Vice President. The President shall be the chief executive officer of the Corporation and shall, subject to the direction of the Board of Directors, have general supervision and control of its business. Unless otherwise provided by the Board of Directors he shall preside, when present, at all meetings of Stockholders and of the Board of Directors. -11- Any Vice President shall have such powers and shall perform such duties as the Board of Directors may from time to time designate. Section 6. Treasurer and Assistant Treasurer. The Treasurer shall, subject to the direction of the Board of Directors, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. He shall have custody of all funds, securities, and valuable documents of the Corporation, except as the Board of Directors may otherwise provide. Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time to time designate. Section 7. Clerk and Assistant Clerk. The Clerk shall keep a record of the meetings of Stockholders. In the event there is no Secretary or he is absent, the Clerk or an Assistant Clerk shall keep a record of the meetings of the Board of Directors. In the absence of the Clerk from any meeting of Stockholders, an Assistant Clerk if one be elected, otherwise a Temporary Clerk designated by the person presiding at the meeting, shall perform the duties of the Clerk. Section 8. Secretary. The Secretary, if one be elected or appointed, shall keep a record of the meetings of the Board of Directors. In the absence of the Secretary, the Clerk and any Assistant Clerk, a Temporary Secretary shall be designated by the person presiding at such meeting to perform the duties of the Secretary. -12- ARTICLE VI Resignations, Removals and Vacancies Section 1. Resignations. Any Director or Officer may resign at any time by delivering his resignation in writing to the President or the Clerk or to a meeting of the Directors. Such resignation shall take effect at such time as is specified therein, or if no such time is so specified then upon delivery thereof. Section 2. Removals. Directors, including Directors elected by the Directors to fill vacancies in the Board, may be removed with or without assignment of cause by vote of the holders of the majority of the shares entitled to vote in the election of Directors, provided that the Directors of a class elected by a particular class of Stockholders may be removed only by the vote of the holders of a majority of the shares of the particular class of Stockholders entitled to vote for the election of such Directors. The Directors may by vote of a majority of the Directors then in office remove any Director for cause. The Directors may remove any Officer from office with or without assignment of cause by vote of a majority of the Directors then in office. If cause is assigned for removal of any Director or Officer, such Director or Officer may be removed only after a reasonable notice and opportunity to be heard before the body proposing to remove him. -13- The Directors may terminate or modify the authority of any agent or employee. Except as the Directors may otherwise determine, no Director or Officer who resigns or is removed shall have any right to any compensation as such Director or Officer for any period following his resignation or removal, or any right to damages on account of such removal whether his compensation be by the month or by the year or otherwise; provided, however, that the foregoing provision shall not prevent such Director or Officer from obtaining damages for breach of any contract of employment legally binding upon the corporation. Section 3. Vacancies. Any vacancy in the Board of Directors, including a vacancy resulting from an enlargement of the Board, may be filled by vote of the majority of the Directors then in office or, in the absence of such election by the Directors, by the Stockholders at a meeting called for the purpose; provided, however, that any vacancy resulting from action by the Stockholders may be filled by the Stockholders at the same meeting at which such action was taken by them. If the office of any Officer becomes vacant, the Directors may elect or appoint a successor by vote of a majority of the Directors present at the meeting at which such election or appointment is made. Each such successor shall hold office for the unexpired term of his predecessor and until his successor shall be elected or appointed and qualified, or until he sooner dies, resigns, is removed or becomes disqualified. -14- ARTICLE VII Indemnification of Directors and Others The corporation shall, to the extent legally permissible, indemnify any person serving or who has served as a Director or Officer of the corporation, or at its request as a Director, Trustee, Officer, Employee or other Agent of any organization in which the corporation owns shares or of which it is a creditor against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees, reasonably incurred by him in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which he may be involved or with which he may be threatened, while serving or thereafter, by reason of his being or having been such a Director, Officer, Trustee, Employee or Agent. No indemnificatioon shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation. As to any matter disposed of by a compromise payment by such Director, Officer, Trustee, Employee or Agent, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless: (a) such compromise shall be approved as in the best interests of the corporation, after notice that it involves such indemnification: -15- (i) by a disinterested majority of the Directors then in office; or (ii) by the holders of a majority of the outstanding stock at the time entitled to vote for Directors, voting as a single class, exclusive of any stock owned by any interested Director or Officer; or (b) in the absence of action by disinterested Directors or Stockholders, there has been obtained at the request of a majority of the Directors then in office an opinion in writing of independent legal counsel to the effect that such Director or Officer appears to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation. Expenses, including counsel fees, reasonably incurred by any such Director, Officer, Trustee, Employee or Agent in connection with the defense or disposition of any such action, suit or other proceeding may be paid from time to time by the corporation in advance of the final disposition thereof upon receipt of an undertaking by such individual to repay the amounts so paid to the corporation if it is ultimately determined that indemnification for such expenses is not authorized under this section. The right of indemnification hereby provided shall not be exclusive of or affect any other rights to which any such Director, Officer, Trustee, Employee or Agent shall affect any rights to indemnification to which corporate personnel other than such Directors, Officers, Trustees, Employees or Agents may be entitled by contract or otherwise under law. As used in this Article the terms "Director", "Officer", "Trustee", "Employee" -16- and "Agent" include their respective heirs, executors and administrators, and an "interested" Director, Officer, Trustee, Employee or Agent is one against whom in such capacity the proceedings in question or other proceedings on the same or similar grounds is then pending. ARTICLE VIII Stock Section 1. Stock Authorized. The total number of shares and the par value, if any, of each class of stock which the corporation is authorized to issue, and if more than one class is authorized, a description of each class with the preferences, voting powers, qualifications and special and relative rights and privileges as to each such class and any series thereof, shall be as stated in the Articles of Organization. Section 2. Issue of Authorized Unissued Capital Stock Any unissued capital stock from time to time authorized under the Articles of Organization may be issued by vote of the Directors. No such stock shall be issued unless the cash, so far as due, or the property, services or expenses for which it was authorized to be issued, has been actually received or incurred by, or conveyed or rendered to, the corporation, or is in its possession as surplus. -17- Section 3. Certificates of Stock. Each Stockholder shall be entitled to a certificate in form selected by the Board of Directors stating the number and the class and the designation of the series, if any, of the shares held by him. Such certificate shall be signed by the President or Vice President and the Treasurer or an Assistant Treasurer. Such signatures may be facsimiles if the certificate is signed by a transfer agent, or by a registrar, other than a Director, Officer or Employee of the corporation. Every certificate for shares of stock subject to any restriction or transfer pursuant to the Articles of Organization, these By-Laws, or any agreement to which the corporation is a party shall have the restriction not conspicuously on the certificate and shall also set forth on the face or back either the full text of the restriction or a statement of the existence of such restriction and a statement that the corporation will furnish a copy to the holder of such certificate upon written request and without charge. Every certificate issued when the corporation is authorized to issue more than one class or series of stock shall set forth on its face or back either the full text of the preferences, voting powers, qualifications and special and relative rights of the shares of each class and series authorized to be issued or a statement of the existence of such preferences, powers, qualifications and rights, and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. -18- Section 4. Transfers. Subject to the restrictions, if any, imposed by the Articles of Organization, these By-Laws or any agreement to which the corporation is a party, shares of stock shall be transferred on the books of the corporation only by the surrender to the corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment of such shares or by a written power of attorney to sell, assign, or transfer such shares, properly executed, with necessary transfer stamps affixed, and with such proof that the endorsement, assignment or power of attorney is genuine and effective as the corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, the corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the corporation in accordance with the requirements of these By-Laws. It shall be the duty of each stockholder to notify the corporation of his post office address. Section 5. Lost, Mutilated, or Destroyed Certificates Except as otherwise provided by law, the Board of Directors may determine the conditions upon which a new certificate of stock may be issued in place of any certificate alleged to have been lost, mutilated or destroyed. It may, in its discretion, require the owner of a lost, mutilated or -19- destroyed certificate, or his legal representative, to give a bond, sufficient in its opinion, with or without surety, to indemnify the corporation against any loss or claim which may arise by reason of the issue of a certificate in place of such lost, mutilated or destroyed stock certificate. Section 6. Transfer Agent and Registrar. The Board of Directors may appoint a transfer agent or a registrar or both for its capital stock or any class or series thereof and require all certifictes for such stock to bear the signature or facsimile thereof of any such transfer agent or registrar. Section 7. Setting Record Date and Closing Transfer Records. The Board of Directors may fix in advance a time not more than sixty (60) days before (i) the date of any meeting of the Stockholders or (ii) the date for the payment of any dividend or the making of any distribution to Stockholders or (iii) the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the Stockholders having the right to notice and to vote at such meeting, or the right to receive such dividend or distribution, or the right to give such consent or dissent. If a record date is set, only Stockholders of record on the date shall have such right notwithstanding any transfer of stock on the records of the corporatioon after the record date. Without fixing such record date, the Board of Directors may close the transfer records of the corporation for all or any part of such sixty-day period. -20- If no record date is fixed and the transfer books are not closed, then the record date for determining Stockholders having the right to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, and the record date for determining Stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors acts with respect thereto. ARTICLE IX Miscellaneous Provisions Section 1. Execution of Papers. All deeds, leases, transfers, contracts, bonds, notes, releases, checks, drafts and other obligations authorized to be executed on behalf of the corporation shall be signed by the President or the Treasurer except as the Directors may generally or in particular cases otherwise determine. Section 2. Voting of Securities. Except as the Directors may generally or in particular cases otherwise specify, the President or the Treasurer may on behalf of the corporation vote or take any other action with respect to shares of stock or beneficial interest of any other corporation, or of any association, trust or firm, of which any securities are held by this corporation, and may appoint any person or persons to act as proxy or attorney-in-fact for the corporation, with or without power of substitution, at any meeting thereof. -21- Section 3. Corporate Seal. The seal of the corporation shall be a circular die with the name of the corporation, the word "Massachusetts" and the year of its incorpoation cut or engraved thereon, or shall be in such other form as the Board of Directors may from time to time determine. Section 4. Corporate Records. The original, or attested copies, of the Articles of Organization, By-Laws and records of all meetings of the incorporators and Stockholders, and the stock and transfer records, which shall contain the names of all Stockholders and the record address and the amount of stock held by each, shall be kept in Massachusetts at the principal office of the Corporation, or at an office of its transfer agent or of its Clerk or of its Resident Agent. Said copies and records need not all be kept in the same office. They shall be available at all reasonable times to the inspection of any Stockholder except for the purpose of selling said list or copies thereof or of using the same for a purpose other than in the interest of the applicant, as a Stockholder, relative to the affairs of the corporation. Section 5. Evidence of Authority. A certificate by the Clerk or Secretary or an Assistant or Temporary Clerk or Secretary as to any matter relative to the Articles of Organization, By-Laws, records of the proceedings of the incorporators, Stockholders, Board of Directors, or any committee of the Board of Directors, or stock and transfer records or as to any action taken by any person or persons as an officer or agent of the corporation, shall as to all persons who -22- rely thereon in good faith be conclusive evidence of the matters so certified. ARTICLE X Amendments These By-Laws may be amended or repealed in whole or in part by the affirmative vote of the holders of a majority of the shares of each class of the capital stock at the time outstanding and entitled to vote at any Annual or Special Meeting of Stockholders, provided that notice of the substance of the proposed amendment is stated in the notice of such meeting. If authorized by the Articles of Organization, the Directors may make, amend or repeal the By-Laws, in whole or in part, except with respect to any provision thereof which by law, the Articles of Organization or the By-Laws requires action by the Stockholders. Not later than the time of giving notice of the meeting of Stockholders next following the making, amending or repealing by the Directors of any By-Law, notice thereof stating the substance of such change shall be given to all Stockholders entitled to vote on amending the By-Laws. No change in the date fixed in these By-Laws for the Annual Meeting of Stockholders may be made within sixty (60) days before the date fixed in these By-Laws, and in case of any change in such date, notice thereof shall be given to each Stockholder in person or by letter mailed to his last known post office address at least twenty (20) days before the new date fixed for such meeting. Any By-Law adopted, amended or repealed by the Directors may be repealed, amended or reinstated by the Stockholders entitled to vote on amending the By-Laws. -23- ARTICLE XI Restrictions on Transfer of Stock No Stockholder of the Corporation or his executor, administrator, or personal representative shall encumber or dispose of the stock of the Corporation which he now owns or may hereafter acquire, except as follows: (a) Any Stockholder may transfer any part or all of such stock by testate direction or intestate distribution at the time of his death to or for the benefit of any person or persons, or by gift to, or in trust for the benefit of himself, his spouse, his parent or parents, or any descendant or descendants of his. In case of any such transfer, the legatees, heirs, next of kin, donees, or other transferees shall receive and hold such stock subject to the restrictions or encumbrance and disposition, set forth in this Article. (b) Any Stockholder who desires to sell all or any part of such stock shall first offer in writing such stock for sale to the corporation at the same price and upon the same terms offered to such Stockholder by a bona fide prospective puchaser of such shares. The corporation shall have the option for ten (10) days after its receipt of such written offer to accept such offer. If, within such ten-day period, the Corportion shall fail to accept such offer in its entirety, its option hereunder as to such offer shall terminate. Thereupon, the Stockholder so desiring to sell all or part of his stock shall make the same offer (being an offer in writing to sell such stock at the same price and upon the same terms offered to such Stockholder or a bona fide prospective purchaser of such shares) to all of the -24- other then Stockholders of the Corporation (as a group), and shall give written notice of such offer to all of the other then Stockholders. Such other Stockholders shall have the option for thirty (30) days after their receipt of such written offer to accept such offer in such proportions among themselves as they may agree, and if they do not agree, then each such Stockholder who desires to accept such offer shall have the right to purchase such a fraction of such shares of stock as is computed as follows: (i) The numerator of the fraction shall be the number corresponding to the number of shares of stock of the Corporation then owned by such Stockholder who desires to accept such offer; (ii) The denominator of such fraction shall be the number corresponding to the sum of all of the shares of stock then owned by all of the then Stockholders who desire to accept such offer; provided, however, that no Stockholder shall have the right to purchase any part of the shares so offered for sale unless all of such shares so offered for sale are purchased, pursuant to such offer, by one or more of such offeree Stockholders. If no Stockholder or Stockholders exercise such option within the aforesaid thirty-day period, then the Stockholder so desiring to sell part or all of his stock shall have the right for a period ending on the sixtieth (60th) day after the expiration of the aforesaid thirty-day period, to sell such stock to, and only to, the aforesaid bona fide prospective purchaser in the same quantity, at the same price, and upon the same terms as -25- were offered to the other Stockholders and/or the Corporation. Upon the expiration of such sixty-day period, if such Stockholder does not sell such stock, all of the restrictions imposed by this Article shall apply to all of the stock owned by such Stockholder. -26- EX-3.73 71 file070.txt CERTIFICATE OF INCORPORATION AND AMENDMENT CERTIFICATE OF INCORPORATION OF INVENCOM ACQUISITION CORP. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is INVENCOM ACQUISITION CORP. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Robert L. Lawrence, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 2 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on September 20, 2001. /s/ Robert L. Lawrence ---------------------------------- Robert L. Lawrence Incorporator 3 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF INVENCOM ACQUISITION CORP. -------------------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is Invencom Acquisition Corp. (hereinafter referred to as the "Corporation"). 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is "RAMTECH CORP." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware. Dated: April 23, 2002. INVENCOM ACQUISITION CORP. By: /s/ Stephen Croskrey ----------------------- Name: Stephen Croskrey Title: President CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF RAMTECH CORP. -------------------------- (Under Section 242 of the General Corporation Law) It is hereby certified that: 1. The name of the corporation is Ramtech Corp. (hereinafter referred to as the "Corporation"). Its name at the time of the formation of the corporation was "Invencom Acquisition Corp." 2. The Certificate of Incorporation of the Corporation is hereby amended by striking out Article FIRST thereof and by substituting in lieu of said Article FIRST the following new Article FIRST: "FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is "RAMTECH DEVELOPMENT CORP." 3. The amendment of the Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware. Dated: May 6, 2002. RAMTECH DEVELOPMENT CORP. By: /s/ Stephen Croskrey ----------------------- Name: Stephen Croskrey Title: President EX-3.74 72 file071.txt BYLAWS OF RAMTECH DEVELOPMENT CORP. Ex-3.74 Bylaws of InvenCom Acquisition Corp. (a Delaware corporation) Article I -- Stockholders Section 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. Section 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. Section 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in Section 5 of this Article I. Section 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. Section 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. Section 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. Section 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. Section 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are 2 the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. Section 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. Section 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. Section 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 Article II -- Board of Directors Section 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. Section 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. Section 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. Section 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. Section 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. 4 Section 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. Section 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. Section 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. Section 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. Section 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by a 5 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. Section 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. Section 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. Section 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, 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 shall constitute presence in person at such meeting. 6 Section 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. Article III -- Officers Section 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. Section 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. Section 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or 7 the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. Section 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. Section 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. Section 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. Section 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. Section 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. Section 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the 8 powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. Section 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. Section 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. Section 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. Section 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. Section 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. 9 Section 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. Article IV -- Shares and Transfer of Shares Section 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. Section 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. Section 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. 10 Section 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. Section 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. Section 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. Article V -- General Provisions Section 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. Section 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, a waiver thereof in writing, 11 signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Section 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. Section 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. Section 5. 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. Section 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. Section 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. Section 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. 12 Section 9. Disbursements. 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. Article VI -- Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Article VII -- Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.75 73 file072.txt AMENDED AND RESTATED ARTICLES OF INCORPORATION AMENDED AND RESTATED ARTICLES OF INCORPORATION OF SAFARI LAND LTD., INC. (Corporation No. 468474) NEALE A. PERKINS and PAUL N. RISINGER certify that: 1. They are the duly elected and acting President and Secretary, respectively, of SAFARI LAND LTD., INC., a California corporation (Corporation No. 468474). 2. The following amendment to the Articles of Incorporation of said corporation has been approved by the Board of Directors of the corporation: "The Articles of Incorporation of this corporation are amended and restated to read as follows: AMENDED AND RESTATED ARTICLES OF INCORPORATION OF SAFARI LAND LTD., INC. I Name The name of the corporation is SAFARI LAND LTD., INC. II Purpose The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III Governing Law This corporation elects to be governed by all of the provisions of the General Corporation Law of California effective January 1, 1977, not otherwise applicable to it under Chapter 23 thereof. IV Classes And Series Of Shares This corporation is authorized to issue two classes of shares designated respectively "Common Stock" (sometimes referred to as "Common Shares") and "Preferred Stock" (sometimes referred to as "Preferred Shares"). The Common Stock of the corporation may be issued from time to time in two series designated, respectively, Series A, of which the corporation is authorized to issue 2,000,000 shares, and Series B, of which the corporation is authorized to issue 2,000,000 shares. The rights, preferences, privileges, and restrictions of Series A and Series B shall be equal and identical in all respects except that, unless and otherwise provided by law, the holders of shares of Series A shall have and possess the exclusive right to notice of Shareholders' -2- meetings and the exclusive voting rights and power and the holders of shares of Series B shall not be entitled to notice of any Shareholders' meetings or to vote upon the election of Directors or upon any other matters. Upon the effective date hereof, each outstanding share of Capital Stock of the par value of $1.00 per share is hereby reclassified and reconstituted as one share of Common Stock, Series A, without stated value. The number of share of Preferred Stock which the corporation may issue from time to tine is 100,000. V Preferred Stock Preferences The rights, preferences, privileges, and restrictions granted or imposed upon the share of Preferred Stock or the holders thereof are as follows: (a) Dividends. Any Preferred Shares issued by the corporation shall be entitled to receive dividends on a noncumulative basis as set forth in subparaqraph (1) below until December 31, 1982 and, thereafter, on a cumulative basis as set forth in subparagraph (2) below. (1) noncumulative Dividend Provisions. Prior to December 31, 1982, as set forth in paragraph (a) ("Dividends") above, the holders of outstanding Preferred Shares shall be entitled to receive in any fiscal year, when and as declared -3- by the Board of Directors, out of any assets at the time legally available therefor, dividends in cash at the rate of $9.50 per Preferred Share per annum, before any dividend is paid on Common Shares. Such dividend may be payable quarterly or otherwise as the Board of Directors may from time to time determine. Dividends may be declared and paid upon Common Shares in any fiscal year of the corporation only if dividends shall have been paid to or declared and set apart upon all Preferred Shares at such annual rate for each quarter of such fiscal year of the corporation including the quarter in which such dividends upon Common Shares are declared. The right to such dividends on Preferred Shares shall not be cumulative, and no right shall accrue to holders of Preferred Shares by reason of the fact that dividends on said shares are not declared in any prior year, nor shall any undeclared or unpaid dividend bear or accrue interest. (2) Cumulative Dividend Provisions. After December 31, 1982, as set forth in paragraph (a) ("Dividends") above, the holders of the outstanding Preferred Shares shall be entitled to receive, when and as declared by the Board of Directors of the corporation, out of any assets at the time legally available therefor, dividends in cash at the rate of $9.50 per Preferred Share per annum, and no more, payable in cash quarterly on the 15th days of November, February, May, and August for the calendar quarter immediately preceding each such month. Such dividends shall accrue on each such -4- share from the date of its original issuance and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period at said rate per share per annum shall not have been paid on or declared and set apart for all Preferred Shares at the time outstanding, the deficiency shall be fully paid on or declared and set apart for such shares before the corporation makes any distribution (as hereinafter defined) to holders of Common Shares. "Distribution" in this paragraph (a)(2) means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the corporation) or the purchase or redemption of shares of the corporation for cash or property, including any such transfer, purchase, or redemption by a subsidiary of the corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the corporation acquires the shares in such exchange. (b) Liquidation. In the event of a voluntary or involuntary liquidation, dissolution, or winding up of the corporation, the holders of Preferred Shares shall be entitled to receive out of the assets of the corporation, whether such -5- assets are capital or surplus of any nature, an amount equal to $105.00 per Preferred Share and a further amount equal to any cumulative, but not noncumulative, dividends accrued and unpaid thereon, as provided in paragraph (a), subparagraph (2), of this Article V, to the date that payment is made available to the holders of Preferred Shares, whether earned or declared or not, and no more, before any payment shall be made or any assets distributed to the holders of Common Shares. If upon such liquidation, dissolution, or winding up, the assets thus distributed among the holders of the Preferred Shares shall be insufficient to permit the payment to such Shareholders of the full preferential amounts aforesaid, then the entire assets of the corporation to be distributed shall be distributed ratably among the holders of Preferred Shares. In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the corporation, subject to all of the preferential rights of the holders of Preferred Shares on distribution or otherwise, the holders of Common Shares shall be entitled to receive, ratably, all remaining assets of the corporation. A consolidation or merger of the corporation with or into any other corporation or corporations, or a sale of all or substantially all of the assets of the corporation, shall not be deemed to be a liquidation, dissolution, or -6- winding up within the meaning of this paragraph (b). (c) Voting. The holders of the Series A Common Shares issued and outstanding, except as otherwise provided by law or by these Articles Of Incorporation, shall have and possess the exclusive right to notice of Shareholders' meetings, and the exclusive voting rights and powers, and the holders of Preferred Shares shall not be entitled to notice of any Shareholders' meetings, or to vote upon the election of Directors or upon any other matter. If, however, at such time as dividends are cumulative as hereinabove provided and at any time three (3) or more quarterly dividends, whether consecutive or not, on the Preferred Shares shall be in arrears, in whole or in part, the holders of Preferred Shares as a class shall be entitled to elect the smallest number of Directors which will constitute a majority of the authorized number of Directors, and the holders of Series A Common Shares as a class shall be entitled to elect the remaining members of the Board of Directors. At such time as all dividends accrued on the outstanding Preferred Shares have been paid or declared and set apart for payment, the rights of the holders of Preferred Shares to vote as provided in this paragraph (c) shall cease, subject to renewal from time to time upon the same terms and conditions. At any time after the voting power to elect a majority of the Board of Directors shall have become vested -7- in the holders of the Preferred Shares as provided in this paragraph (c), the Secretary of the corporation may, and upon the request of the record holders of at least fifty-one percent (51%) of the Preferred Shares then outstanding addressed to the Secretary at the principal executive office of the corporation shall, call a special meeting of the holders of Preferred Shares and of Series A Common Shares for the election of Directors, to be held at the place and upon the notice provided in the Bylaws of the corporation for the holding of annual meetings. If such meeting shall not be so called within ten (10) days after personal service of the request, or within fifteen (15) days after mailing of the same by registered mail within the United States of America, then a person designated by the record holders of at least fifty-one percent (51%) of the Preferred Shares then outstanding may call such meeting at the place and upon the notice above provided, and for that purpose shall have access to the stock books of the corporation. At any meeting so called or at any annual meeting held while the holders of the Preferred Shares have the voting power to elect a majority of the Board of Directors, the holders of a majority of the then outstanding Preferred Shares, present in person or by proxy, shall be sufficient to constitute a quorum for the election of Directors as herein provided. The terms of office of all persons who are Directors of the corporation at the time of such meeting shall terminate upon the election at such meeting by the holders of -8- the Preferred Shares of the number of Directors they are entitled to elect, and the persons so elected as Directors by the holders of the Preferred Shares, together with such persons, if any, as may be elected as Directors by the holders of the Series A Common Shares, shall constitute the duly elected Directors of the corporation. In the event the holders of the Series A Common Shares fail to elect the number of Directors which they are entitled to elect at such meeting, additional Directors may be appointed by the Directors elected by the holders of Preferred Shares. Whenever the voting rights of holders of Preferred Shares shall cease as hereinabove in this paragraph (c) provided, the term of office of all persons who are at the time Directors of the corporation shall terminate upon the election of their successors by the holders of the Series A Common Shares. (d) Protective Provisions. So long as any of the Preferred Shares shall be outstanding the corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least fifty-one percent (51%) of the total number of Preferred Shares outstanding: (1) Alter or change the right, preferences, or privileges of the Preferred Shares so as materially adversely to affect the Preferred Shares; or (2) Increase the authorized number of Preferred -9- Shares; or (3) Create any new class of shares having preferences over or being on a parity with the Preferred Shares as to dividends or assets, unless the purpose of creation of such class is, and the proceeds to be derived from the sale and issuance thereof are to be used for, the retirement of all Preferred Shares then outstanding; or (4) Purchase any Common Shares; or (5) Merge or consolidate with any other corporation, except into or with a wholly owned subdidiary corporation with the requisite Shareholder approval; or (6) Sell, convey, or otherwise dispose of, or create or incur any mortgage, lien, charge, or encumbrance on or security interest in or pledge of, or sell and leaseback, all or substantially all of the property or business of the corporation; or (7) Incur, assume, or guarantee any indebtedness (other than such as may be represented by the obligation to pay rent under leases) maturing more than eighteen (18) months after the date on which it is incurred, assumed, or guaranteed by the corporation, except purchase money obligations, obligations assumed as part of the price of property purchased, or the extension, renewal, or refunding of any thereof. Dated: , 1979. --------- -10- 3. The foregoing amendment was approved by the required vote of Shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares entitled to vote with respect to the amendment was Sixty Thousand (60,000) and a favorable vote of a majority of such shares is required to approve the amendment, and the number of shares voting in favor of the amendment exceeded such required vote. /s/ Neale A. Perkins --------------------------- NEALE A. PERKINS, President /s/ Paul N. Risinger --------------------------- PAUL N. RISINGER, Secretary Each of the undersigned declares under penalty of perjury that the matters set forth in the foregoing Certificate are true and correct. Executed at Monrovia, California on _______________, 19__. /s/ Neale A. Perkins --------------------------- NEALE A. PERKINS /s/ Paul N. Risinger --------------------------- PAUL N. RISINGER [SEAL] -11- EX-3.76 74 file073.txt BYLAWS OF SAFARI LAND LTD., INC. SAFARI LAND LTD., INC. T A B L E O F C O N T E N T S O F B Y L A W S
ARTICLE/SECTION PAGE --------------- ---- ARTICLE I. OFFICES. 1 SECTION 1. Principa1 Office. 1 SECTION 2. Other Offices. 1 ARTICLE II. MEETINGS OF SHAREHOLDERS. 1-8 SECTION 1. Place of Meetings. 1 SECTION 2. Annual Meeting. 1 SECTION 3. Special Meeting. 1-2 SECTION 4. Notice of Shareholders' Meetings. 2 SECTION 5. Manner of Giving Notice; Affidavit of Notice. 2-3 SECTION 6. Quorum. 3 SECTION 7. Adjourned Meeting; Notice. 3-4 SECTION 8. Voting. 4 SECTION 9. Waiver of Notice or Consent by Absent Shareholders. 4-5 SECTION 10. Shareholder Action by Written Consent Without a Meeting. 5-6 SECTION 11. Record Date for Shareholder Notice, Voting, and Giving Consents. 6 SECTION 12. Proxies. 6-7 SECTION 13. Inspectors of Election. 7-8 ARTICLE III. DIRECTORS. 8-11 SECTION 1. Powers. 8 SECTION 2. Number and Qualification. 8 SECTION 3. Election and Term of Office. 8 SECTION 4. Vacancies. 8-9 SECTION 5. Place of Meetings and Meetings by Telephone. 9 SECTION 6. Annual Meeting. 9 SECTION 7. Other Regular Meetings. 9-10
SECTION 8. Special Meetings. 10 SECTION 9. Quorum. 10 SECTION 10. Waiver of Notice. 10 SECTION 11. Adjournment. 11 SECTION 12. Notice of Adjournment. 11 SECTION 13. Action Without Meeting. 11 SECTION 14. Validation of Defectively Called or Noticed Meetings. 11 SECTION 15. Compensation of Directors. 11 ARTICLE IV. COMMITTEES. 11-12 SECTION 1. Committees of Directors. 11-12 SECTION 2. Meetings and Action of Committees. 12 ARTICLE V. OFFICERS. 12-15 SECTION 1. Officers. 12 SECTION 2. Election of Officers. 13 SECTION 3. Subordinate Officers. 13 SECTION 4. Removal and Resignation of Officers. 13 SECTION 5. Vacancies in Offices. 13 SECTION 6. Chairman of the Board. 13 SECTION 7. President. 13-14 SECTION 8. Vice Presidents. 14 SECTION 9. Secretary. 14 SECTION 10. Chief Financial Officer. 14-15 ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS. 15 ARTICLE VII. RECORDS AND REPORTS. 15-18 SECTION 1. Maintenance and Inspection of Share Register. 15-16 SECTION 2. Maintenance and Inspection of Bylaws. 16 SECTION 3. Maintenance and Inspection of Other Corporate Records. 16 SECTION 4. Inspection by Directors. 17 SECTION 5. Annual Report to Shareholders. 17 SECTION 6. Financial Statements. 17-18 ARTICLE VIII. GENERAL CORPORATE MATTERS. 18-19 SECTION 1. Record Date for Purposes Other Than Notice and Voting. 18
SECTION 2. Checks, Drafts, Evidences of Indebtedness. 18 SECTION 3. Corporate Contracts and Instruments; How Executed. 18-19 SECTION 4. Certificates for Shares. 19 SECTION 5. Lost Certificates. 19 ARTICLE IX. AMENDMENTS. 19-20 SECTION 1. Amendment by Shareholders. 19-20 SECTION 2. Amendment by Directors. 20
BYLAWS OF SAFARILAND LTD., INC. a California corporation ********** ARTICLE I OFFICES Section 1. PRINCIPAL OFFICES. The Board of Directors shall fix the location of the principal executive office of the corporation at any place within or outside the State of California. If the principal executive office is located outside this State, and the corporation has one or more business offices in this State, the Board of Directors shall fix and designate a principal business office in the State of California. Section 2. OTHER OFFICES. The Board of Directors may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to do business. ARTICLE II MEETINGS OF SHAREHOLDERS Section 1. PLACE OF MEETINGS. Meetings of Shareholders shall be held at any place within or outside the State of California designated by the Board of Directors. In the absence of any such designation, Shareholders' meetings shall be held at the principal executive office of the corporation. Section 2. ANNUAL MEETING. The annual meeting of the Shareholders shall be held each year on a date and at a time designated by the Board of Directors. However, the date so designated shall be within five (5) months after the end of the corporation's fiscal year, and within fifteen (15) months after the last annual meeting. At each annual meeting Directors shall be elected, and any other proper business may be transacted. Section 3. SPECIAL MEETING. A special meeting of the Shareholders may be called at any time by the Board of Directors, or by the Chairman of the Board, or by the President, or by the Secretary, or by one or more Shareholders holding shares in the aggregate entitled to cast not less than 10% of the votes at that meeting. If a special meeting is called by any person or persons other than the Board of Directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the Chairman of the Board, the President, any Vice President, or the Secretary of the corporation. The officer receiving the request shall cause notice to be promptly given to the Shareholders entitled to vote, in accordance with the provisions of Sections 4 and 5 of this Article II, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 3 shall be construed as limiting, fixing or affecting the time when a meeting of Shareholders called by action of the Board of Directors may be held. Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of Shareholders shall be sent or otherwise given in accordance with Section 5 of this Article II not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted, or (ii) in the case of the annual meeting, those matters which the Board of Directors, at the time of giving the notice, intends to present for action by the Shareholders. The notice of any meeting at which Directors are to be elected shall include the name of any nominee or nominees whom, at the time of the notice, management intends to present for election. If action is proposed to be taken at any meeting for approval of (i) a contract or transaction in which a Director has a direct or indirect financial interest, pursuant to Section 310 of the Corporations Code of California, (ii) an amendment of the Articles of Incorporation, pursuant to Section 902 of that Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of that Code, (iv) a voluntary dissolution of the corporation, pursuant to Section 1900 of that Code, or (v) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of that Code, the notice shall also state the general nature of that proposal. Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of Shareholders shall be given either personally or by first-class mail or telegraphic or other -2- written communication, charges prepaid, addressed to the Shareholder at the address of that Shareholder appearing on the books of the corporation or given by the Shareholder to the corporation for the purpose of notice. If no such address appears on the corporation's books or is given, notice shall be deemed to have been given if sent to that Shareholder by first-class mail or telegraphic or other written communication to the corporation's principal executive office, or if published at least once in a newspaper of general circulation in the county where that office is located. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication. If any notice addressed to a Shareholder at the address of that Shareholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the Shareholder at that address, all future notices or reports shall be deemed to have been duly given without further mailing if these shall be available to the Shareholder on written demand of the Shareholder at the principal executive office of the corporation for a period of one year from the date of the giving of the notice. An affidavit of the mailing or other means of giving any notice of any Shareholders' meeting shall be executed by the Secretary, Assistant Secretary, or any transfer agent of the corporation giving the notice, and shall be filed and maintained in the minute book of the corporation. Section 6. QUORUM. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting of Shareholders shall constitute a quorum for the transaction of business. The Shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough Shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. Section 7. ADJOURNED MEETING; NOTICE. Any Shareholders' meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at that meeting, either in person or by proxy, but in the absence of a quorum, no other business may be transacted at that meeting, except as provided in Section 6 of this Article II. When any meeting of Shareholders, either annual or special, is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place are -3- announced at a meeting at which the adjournment is taken, unless a new record date for the adjourned meeting is fixed, or unless the adjournment is for more than forty-five (45) days from the date set for the original meeting, in which case the Board of Directors shall set a new record date. Notice of any such adjourned meeting shall be given to each Shareholder of record entitled to vote at the adjourned meeting in accordance with the provisions of Sections 4 and 5 of this Article II. At any adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. Section 8. VOTING. The Shareholders entitled to vote at any meeting of Shareholders shall be determined in accordance with the provisions of Section 11 of this Article II, subject to the provisions of Sections 702 to 704, inclusive, of the Corporations Code of California (relating to voting shares held by a fiduciary, in the name of a corporation, or in joint ownership). The Shareholders' vote may be by voice vote or by ballot; provided, however, that any election for Directors must be by ballot if demanded by any Shareholder before the voting has begun. On any matter other than elections of Directors, any Shareholder may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but, if the Shareholder fails to specify the number of shares which the Shareholder is voting affirmatively, it will be conclusively presumed that the Shareholder's approving vote is with respect to all shares that the Shareholder is entitled to vote. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on any matter (other than the election of directors) shall be the act of the Shareholders, unless the vote of a greater number or voting by classes is required by California General Corporation Law or by the Articles of Incorporation. At a Shareholders' meeting at which Directors are to be elected, no Shareholder shall be entitled to cumulate votes unless the candidates' names have been placed in nomination prior to commencement of the voting and a Shareholder has given notice prior to commencement of the voting of the Shareholder's intention to cumulate votes. If any Shareholder has given such a notice, then every Shareholder entitled to vote may cumulate votes for candidates in nomination and give one candidate a number of votes equal to the number of Directors to be elected multiplied by the number of votes to which that Shareholder's shares are entitled, or distribute the Shareholder's votes on the same principle among any or all of the candidates, as the Shareholder thinks fit. The candidates receiving the highest number of votes, up to the number of Directors to be elected, shall be elected. Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The transactions of any meeting of Shareholders -4- either annual or special, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, who was not present in person or by proxy, signs a written waiver of notice or a consent to a holding of the meeting, or an approval of the minutes. The waiver of notice or consent need not specify either the business to be transacted or the purpose of any annual or special meeting of Shareholders, except that if action is taken or proposed to be taken for approval of any those matters specified in the second paragraph of Section 4 of this Article II, the waiver of notice or consent shall state the general nature of the proposal. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice of the meeting if that objection is expressly made at the meeting. Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action which may be taken at any annual or special meeting of Shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote on that action were present and voted. In the case of election of Directors, such a consent shall be effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors; provided, however, that a Director may be elected at any time to fill a vacancy on the Board of Directors that has not been filled by the Directors, by the written consent of the holders of a majority of the outstanding shares entitled to vote for the election of Directors. All such consents shall be filed with the Secretary of the corporation and shall be maintained in the corporate records. Any Shareholder giving a written consent, or the Shareholder's proxy holders, or a transferee of the shares or a personal representative of the Shareholder or their respective proxy holders, may revoke the consent by a writing received by the Secretary of the corporation before written consents of the number of shares required to authorize the proposed action have been filed with the Secretary. -5- If the consents of all Shareholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such Shareholders shall not have been received, the Secretary shall give prompt notice of the corporate action approved by the Shareholders without a meeting. This notice shall be given in the manner specified in Section 5 of this Article II. In the case of approval of (i) contracts or transactions in which a Director has a direct or indirect financial interest, pursuant to Section 310 of the Corporations Code of California, (ii) indemnification of agents of the corporation, pursuant to Section 317 of that Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of that Code, and (iv) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of that Code, the notice shall be given at least ten (10) days before the consummation of any action authorized by that approval. Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS. For purposes of determining the Shareholders entitled to notice of any meeting or to vote or entitled to give consent to corporate action without a meeting, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of any such meeting nor more than sixty (60) days before any such action without a meeting, and in this event only Shareholders of record on the date so fixed are entitled to notice and to vote or to give consents, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date, except as otherwise provided in the California General Corporation Law. If the Board of Directors does not so fix a record date: (a) The record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. (b) The record date for determining Shareholders entitled to give consent to corporate action in writing without a meeting, (i) when no prior action by the Board has been taken, shall be the day on which the first written consent is given, or (ii) when prior action of the Board has been taken, shall be at the close of business on the day on which the Board adopts the resolution relating to that action, or the sixtieth (60th) day before the date of such other action, whichever is later. Section 12. PROXIES. Every person entitled to vote for Directors or on any other matter shall have the right to -6- do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the Secretary of the corporation. A proxy shall be deemed signed if the Shareholder's name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the Shareholder or the Shareholder's attorney in fact. A validly executed proxy which does not state that it is irrevocable shall continue in full force and effect unless (i) revoked by the person executing it, before the vote pursuant to that proxy, by a writing delivered to the corporation stating that the proxy is revoked, or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing the proxy; or (ii) written notice of the death or incapacity of the maker of that proxy is received by the corporation before the vote pursuant to that proxy is counted; provided, however, that no proxy shall be valid after the expiration of eleven (11) months from the date of the proxy, unless otherwise provided in the proxy. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Sections 705(e) and 705(f) of the Corporations Code of California. Section 13. INSPECTORS OF ELECTION. Before any meeting of Shareholders, the Board of Directors may appoint any persons other than nominees for office to act as inspectors of election at the meeting or its adjournment. If no inspectors of election are so appointed, the Chairman of the meeting may, and on the request of any Shareholder or a Shareholder's proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one (1) or three (3). If inspectors are appointed at a meeting on the request of one or more Shareholders or proxies, the holders of a majority of shares or their proxies present at the meeting shall determine whether one (1) or three (3) inspectors are to be appointed. If any person appointed as inspector fails to appear or fails or refuses to act, the Chairman of the meeting may, and upon the request of any Shareholder or a Shareholder's proxy shall, appoint a person to fill that vacancy. These inspectors shall: (a) Determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies; (b) Receive votes, ballots, or consents; (c) Hear and determine all challenges and questions in any way arising in connection with the right to vote; (d) Count and tabulate all votes or consents; -7- (e) Determine when the polls shall close; (f) Determine the result; and (g) Do any other acts that may be proper to conduct the election or vote with fairness to all Shareholders. ARTICLE III DIRECTORS Section 1. POWERS. Subject to the provisions of the California General Corporation Law and any limitations in the Articles of Incorporation and these Bylaws relating to action required to be approved by the Shareholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors. Section 2. NUMBER AND QUALIFICATION. The authorized number of Directors shall be four (4) until changed by a duly adopted amendment to the Articles of Incorporation or by an amendment to this Bylaw adopted by the vote or written consent of holders of a majority of the outstanding shares entitled to vote; provided, however, that an amendment reducing the number of Directors to a number less than five (5) cannot be adopted if the votes cast against its adoption at a meeting, or the shares not consenting in the case of action by written consent, are equal to more than 16-2/3% of the outstanding shares entitled to vote. Section 3. ELECTION AND TERM OF OFFICE. Directors shall be elected at each annual meeting of the Shareholders to hold office until the next annual meeting. Each Director, including a Director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until a successor has been elected and qualified. Section 4. VACANCIES. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, except that a vacancy created by the removal of a Director by the vote or written consent of the Shareholders or by Court order may be filled only by the vote of a majority of the shares entitled to vote represented at a duly held meeting at which a quorum is present, or by the written consent of holders of a majority of the outstanding shares entitled to vote. Each Director so elected shall hold office until the next annual meeting of the Shareholders and until a successor has been elected and Qualified. -8- A vacancy or vacancies in the Board of Directors shall be deemed to exist in the event of the death, resignation, or removal of any Director, or if the Board of Directors by resolution declares vacant the office of a Director who has been declared of unsound mind by an order of court or convicted of a felony, or if the authorized number of Directors is increased, or if the Shareholders fail, at any meeting of Shareholders at which any Director or Directors are elected, to elect the number of Directors to be voted for at that meeting. The Shareholders may elect a Director or Directors at any time to fill any vacancy or vacancies not filled by the Directors, but any such election by written consent shall require the consent of a majority of the outstanding shares entitled to vote. Any Director may resign effective on giving written notice to the Chairman of the Board, the President, the Secretary, or the Board of Directors, unless the notice specifies a later time for that resignation to become effective. If the resignation of a Director is effective at a future time, the Board of Directors may elect a successor to take office when the resignation becomes effective. No reduction of the authorized number of Directors shall have the effect of removing any Director before that Director's term of office expires. Section 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. Regular meetings of the Board of Directors may be held at any place within or outside the State of California that has been designated from time to time by resolution of the Board. In the absence of such a designation, regular meetings shall be held at the principal office of the corporation. Special meetings of the Board shall be held at any place within or outside the State of California that has been designated in the notice of the meeting or, if not stated in the notice or there is no notice, at the principal executive office of the corporation. Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all Directors participating in the meeting can hear one another, in which case all such Directors shall be deemed to be present in person at the meeting. Section 6. ANNUAL MEETING. Immediately following each annual meeting of Shareholders, the Board of Directors shall hold a regular meeting for the purpose of organization, any desired election of officers, and the transaction of other business. Notice of this meeting shall not be required. Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the Board of Directors shall be held without call at such time as shall from time to time be fixed by the Board of Directors. Such regular meetings may be held -9- without notice. Section 8. SPECIAL MEETINGS. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the Chairman of the Board or the President or any Vice President or the Secretary or any two Directors. Written notice of the time and place of special meetings shall be delivered personally or by telephone to each Director or sent by first-class mail or telegram, charges prepaid, addressed to each Director at that Director's address as it is shown on the records of the corporation. In case the notice is mailed, it shall be deposited in the United States mail at least four (4) days before the time of the holding of the meeting. In case the notice is delivered personally or by telephone or telegram, it shall be delivered personally or by telephone or to the telegraph company at least forty-eight (48) hours before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the Director or to a person at the office of the Director who the person giving the notice has reason to believe will promptly communicate it to the Director. The notice need not specify the purpose of the meeting nor the place if the meeting is to be held at the principal executive office of the corporation. Section 9. QUORUM. A majority of the authorized number of Directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 11 of this Article III. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number or the same number after disqualifying one or more Directors from voting, is required by law, by the Articles of Incorporation, or by these Bylaws. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of Directors, if any action taken is approved by at least a majority of the required quorum for that meeting. Section 10. WAIVER OF NOTICE. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the Directors not present signs a written waiver of notice, a consent to holding the meeting or an approval of the minutes. The waiver of notice or consent need not specify the purpose of the meeting. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Notice of a meeting shall also be deemed given to any Director who attends the meeting without protesting before or at its commencement, the lack of notice to that Director. -10- Section 11. ADJOURNMENT. A majority of the Directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place. Section 12. NOTICE OF ADJOURNMENT. Notice of the time and place of holding an adjourned meeting need not be given, unless the meeting is adjourned for more that twenty-four hours, in which case notice of the time and place shall be given before the time of the adjourned meeting, in the manner specified in Section 8 of this Article III, to the Directors who were not present at the time of the adjournment. Section 13. ACTION WITHOUT MEETING. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting, if all members of the board shall individually or collectively consent in writing to that action. Such action by written consent shall have the same force and effect as a unanimous vote of the Board of Directors. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Section 14. VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present and if, either before or after the meeting, each of the Directors not present or who, though present, has prior to the meeting or at its commencement, protested the lack of proper notice to him, signs a written waiver of notice or a consent to holding such meeting or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporated records or made a part of the minutes of the meeting. Section 15. COMPENSATION OF DIRECTORS. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement of expenses, as may be fixed or determined by resolution of the Board of directors. This Section 15 shall not be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise, and receiving compensation for those services. ARTICLE IV COMMITTEES Section 1. COMMITTEES OF DIRECTORS. The Board of Directors may, by resolution adopted by a majority of the authorized number of Directors, designate one or more committees, each consisting of two or more Directors, to serve at the pleasure of the Board. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent member at any meeting of the -11- committee. Any committee, to the extent provided in the resolution of the Board, shall have all the authority of the Board, except with respect to: (a) the approval of any action which, under the General Corporation Law of California, also requires shareholders' approval or approval of the outstanding shares; (b) the filling of vacancies on the Board of Directors or in any committee; (c) the fixing of compensation of the Directors for serving on the Board of Directors or on any committee; (d) the amendment or repeal of Bylaws or the adoption of new Bylaws; (e) the amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable; (f) a distribution to the Shareholders of the corporation, except at a rate or in a periodic amount or within a price range determined by the Board of Directors; or (g) the appointment of any other committees of the Board of Directors of the members of these committees. Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of committees shall be governed by, and held and taken in accordance with, the provisions of Article III of these Bylaws, Sections 5 (place of meeting), 7 (regular meetings), 8 (special meetings and notice), 9 (quorum), 10 (waiver of notice), 11 (adjournment), 12 (notice of adjournment) , and 13 (action without meeting), with such changes in the context of those Bylaws as are necessary to substitute the committee and its members for the Board of Directors and its members, except that the time of regular meetings of committees may be determined either by resolution of the Board of Directors or by resolution of the committee. Special meetings of committees may also be called by resolutions of the Board of Directors. Notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directors may adopt rules for the government of any committee not inconsistent with the provisions of these Bylaws. ARTICLE V OFFICERS Section 1. OFFICERS. The Officers of the corporation -12- shall be a President, a Secretary, and a Chief Financial Officer. The corporation may also have, at the discretion of the Board of Directors, a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article V. Any number of offices may be held by the same person. Section 2. ELECTION OF OFFICERS. The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article V, shall be chosen by the Board of Directors, and each shall serve at the pleasure of the Board, subject to the rights, if any, of an Officer under any contract of employment. Section 3. SUBORDINATE OFFICERS. The Board of Directors may appoint, and may empower the President to appoint, such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the Bylaws or as the Board of Directors may from time to time determine. Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any, of an Officer under any contract of employment, any Officer may be removed, either with or without cause, by the Board of Directors, at any regular or special meeting of the Board, or, except in case of an Officer chosen by the Board of Directors, by any Officer upon whom such power of removal may be conferred by the Board of Directors. Section 5. VACANCIES IN OFFICES. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to that Office. Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an officer be elected, shall, if present, preside at meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by the Bylaws. If there is no President, the Chairman of the Board shall in addition be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 7 of this Article V. Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the -13- President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and the Officers of the corporation. He shall preside at all meetings of the Shareholders and, in the absence of the Chairman of the Board, or if there be none, at all meetings of the Board of Directors. He shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. Section 8. VICE PRESIDENTS. In the absence of disability of the President, the Vice Presidents, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, a Vice President designated by the Board of Directors, shall perform all 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. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the Bylaws, and the President, or the Chairman of the Board. Section 9. SECRETARY. The Secretary shall keep or cause to be kept, at the principal executive office or such other place as the Board of Directors may direct, a book or minutes of all meetings and actions of Directors, committees or Directors, and Shareholders, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice given, the names of those present at Director's meetings or committee meetings, the number of shares present or represented at Shareholder's meetings, and the proceedings. The Secretary shall keep, or cause to be kept, at the principal executive office or at the office of the corporation's transfer agent or registrar, as determined by resolution of the Board of Directors, a share register, or a duplicate share register, showing the names of all Shareholders and their addresses, the number and classes of shares held by each, the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give, or cause to be given, notice of all meetings of the Shareholders and of the Board of Directors required by the Bylaws or by law to be given, and he shall keep the seal of the corporation if one be adopted, in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by the Bylaws. Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep and maintain, or cause to be kept -14- and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and shares. The books of account shall at all reasonable times by open to inspection by any director. The chief financial officer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the board of directors. He shall disburse the funds of the corporation as may be ordered by the board of directors, shall render to the president and directors, whenever they request it, an account of all of his transactions as chief financial officer and of the financial condition of the corporation, and shall have other powers and perform such other duties as may be prescribed by the board of directors or the bylaws. ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS The corporation shall, to the maximum extent permitted by the California General Corporation Law, indemnify each of its agents against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact any such person is or was an agent of the corporation. For purposes of this Section, an "agent" of the corporation includes any person who is or was a director, officer, employee, or other agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, or was a director, officer, employee, or agent of a corporation which was a predecessor corporation of the corporation of or another enterprise at the request of such predecessor corporation. ARTICLE VII RECORDS AND REPORTS Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The corporation shall keep at its principal executive office, or at the office of its transfer agent or registrar, if either be appointed and as determined by resolution of the board of directors, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each shareholder. A shareholder or shareholders holding at least five percent (5%) in the aggregate of the outstanding voting shares of the corporation may (i) inspect and copy the re- -15- cords of shareholders' names and addresses and shareholdings during usual business hours on five days prior written demand on the corporation, and (ii) obtain from the transfer agent of the corporation, on written demand and on the tender of such transfer agent's usual charges for such list, a list of the shareholders' names and addresses, who are entitled to vote for the election of directors, and their shareholdings, as of the most recent record date for which that list has been compiled or as of a date specified by the shareholder after the date of demand. This list shall be made available to any such shareholder by the transfer agent on or before the later of five (5) days after the demand is received or the date specified in the demand as the date as of which the list is to be compiled. The record of shareholders shall also be open to inspection on the written demand of any shareholder or holder of a voting trust certificate, at any time during usual business hours, for a purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust certificate. Any inspection and copying under this Section 1 may be made in person or by an agent or attorney of the shareholder or holder of a voting trust certificate making the demand. Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall keep at its principal executive office, or if its principal executive office is not in the State of California, at its principal business office in this state, the original or a copy of the bylaws as amended to date, which shall be open to inspection by the shareholders at all reasonable times during office hours. If the principal executive office of the corporation is outside the State of California and the corporation has no principal business office in this state, the Secretary shall, upon the written request of any shareholder, furnish to that shareholder a copy of the bylaws as amended to date. Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The accounting books and records and minutes of proceedings of the shareholders and the board of directors and any committee or committees of the board of directors shall be kept at such place or places designated by the board of directors, or, in the absence of such designation, at the principal executive office of the corporation. The minutes shall be kept in written form and the accounting books and records shall be kept either in written form or in any other form capable of being converted into written form. The minutes and accounting books and records shall be open to inspection upon the written demand of any shareholder or as the holder of a voting trust certificate. The inspection may be made in person or by an agent or attorney, and shall include the right to copy and make extracts. These rights of inspection shall extend to the records of each subsidiary corporation of the corporation. -16- Section 4. INSPECTION BY DIRECTORS. Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of every kind and the physical properties of the corporation and each of its subsidiary corporations. This inspection by a director may be made in person or by an agent or attorney and the right of inspection includes the right to copy and make extracts of documents. Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders referred to in Section 1501 of the California General Corporation Law is expressly dispensed with, but nothing herein shall be interpreted as prohibiting the board of directors from issuing annual or other periodic reports to the shareholders of the corporation as they consider appropriate. Section 6. FINANCIAL STATEMENTS. A copy of any annual financial statement and any income statement of the corporation for each quarterly period of each fiscal year, and any accompanying balance sheet of the corporation as of the end of each such period, that has been prepared by the corporation shall be kept on file in the principal executive office of the corporation for twelve (12) months and each such statement shall be exhibited at all reasonable times to any shareholder demanding and examination of any such statement or a copy shall be mailed to any such shareholder. If a shareholder or shareholders holding at least five percent (5%) of the outstanding shares of any class of stock of the corporation makes a written request to the corporation for an income statement of the corporation for the three-month, six-month, or nine-month period of the then current fiscal year ended more than thirty (30) days before the date of the request, and a balance sheet of the corporation as of the end of that period, the chief financial officer shall cause that statement to be prepared, if not already prepared, and shall deliver personally or mail that statement or statements to the person making the request within thirty (30) days after the receipt of the request. If the corporation has not sent to the shareholders its annual report for the last fiscal year, this report shall likewise be delivered or mailed to the shareholder or shareholders within thirty (30) days after the request. The corporation shall also, on the written request of any shareholder, mail to the shareholder a copy of the last -17- annual, semi-annual, or quarterly income statement which it has prepared, and a balance sheet as of the end of that period. The quarterly income statements and balance sheets referred to in this section shall be accompanied by the report, if any, of any independent accountants engaged by the corporation or the certificate of an authorized officer of the corporation that the financial statements were prepared without audit from the books and records of the corporation. . ARTICLE VIII GENERAL CORPORATE MATTERS Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For purposes of determining the shareholders 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 other lawful action (other than action by shareholders by written consent without a meeting), the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) days before any such action, and in that case only shareholders of record on the date so fixed are entitled to receive the dividend, distribution, or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date so fixed, except as otherwise provided in the California General Corporation Law. If the board of directors does not so fix a record date, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the board adopts the applicable resolution or the sixtieth (60th) day before the date of that action, whichever is later. Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts, or other orders for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the board of directors. Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and this authority may be general or confined to specific instances; and, unless so authorized or ratified by the board of directors or within the agency power of an officer, -18- no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount. Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for shares of the capital stock of the corporation shall be issued to each shareholder when any of these shares are fully paid, and the board of directors may authorize the issuance of certificates or shares as partly paid provided that these certificates shall state the amount of the consideration to be paid for them and the amount paid. All certificates shall be signed in the name of the corporation by the chairman of the board of vice chairman of the board or the president or vice president and by the chief financial officer or an assistant treasurer or the secretary or any assistant secretary, certifying the number of shares and the class or series of shares owned by the shareholder. Any or all of 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 on a certificate shall have ceased to be that officer, transfer agent, or registrar before that certificate is issued, it may be issued by the corporation with the same effect as if that person were an officer, transfer agent, or registrar at the date of issue. Section 5. LOST CERTIFICATES. Except as provided in this Section 5, no new certificates for shares shall be issued to replace an old certificate unless the latter is surrendered to the corporation and cancelled at the same time. The board of directors may, in case any share certificate or certificate for any other security is lost, stolen, or destroyed, authorize the issuance of a replacement certificate on such terms and conditions as the board may require, including provision for indemnification of the corporation secured by a bond or other adequate security sufficient to protect the corporation against any clain that may be made against it, including any expense or liability, on account of the alleged loss, theft, or destruction of the certificate or the issuance of the replacement certificate. ARTICLE IX AMENDMENTS Section 1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted or these bylaws may be amended or repealed by the vote or written consent of holders of a majority of the outstanding shares entitled to vote; provided, however, that if the articles of incorporation of the corporation set forth the number of authorized directors of the corporation, the authorized number of directors may be changed only by -19- an amendment of the articles of incorporation. Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the shareholders as provided in Section 1 of this Article IX, bylaws, other than a bylaw or an amendment of a bylaw changing the authorized number of directors, may be adopted, amended, or repealed by the board of directors. CERTIFICATE OF SECRETARY I, the undersigned, do hereby certify: 1. That I am the duly elected and acting Secretary of SAFARILAND LTD., INC., a California corporation; and 2. That the foregoing Bylaws, comprising 20 pages, constitute the Bylaws of said Corporation as duly adopted by the Board of Directors on December 21, 1977. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of said Corporation this 21st day of December, 1977. /s/ Illegible -------------------- Secretary ARTICLE V OFFICERS Section 6a. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board, if such an Officer be elected, shall, if present and in the absence of the Chairman of the Board, preside at Meetings of the Board of Directors and, in the absence of the Chairman of the Board, exercise such other powers and duties as may have been from time to time assigned to the Chairman of the Board or prescribed by the Bylaws. (Amendment approved at a special Board of Directors meeting held December 21, 1977.) Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an Officer, the President shall be the Chief Executive Officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and the Officers of the corporation. He shall preside at all meetings of the Shareholders and, in the absence of the Chairman of the Board or the Vice Chairman of the Board, or if there be none, at all meetings of the Board of Directors. He shall have the general powers and duties of management usually vested in the office of President of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. (Amendment approved at a special Board of Directors meeting held December 21, 1977. Section 8. VICE PRESIDENTS. In the absence or disability of the President, the Vice Presidents, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, a Vice President designated by the Board of Directors, shall perform all 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. The Board of Directors may designate an Executive Vice President who shall be senior in rank to all other Vice Presidents of the corporation. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors of the Bylaws and the President, or the Chairman of the Board. (Amendment approved at a special Board of Directors Meeting held December 21, 1997) ARTICLE III DIRECTORS Section 2. The number of Directors was changed from four (4) to three (3). (Amendment approved by Unanimous Written Consent of the Shareholders effective August 1, 1989) ARTICLE 5 OFFICERS Section 6. CHAIRMAN. The Chairman, if such an Officer be elected, shall be the Chief Executive Officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business of the Officers of the corporation. He shall preside at all meetings of the shareholders and at all meetings of the Board of Directors. He shall have the general powers and duties of management usually vested in the office of Chairman and Chief Executive Officer, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. (Amendment approved by Unanimous Written Consent of the Board of Directors signed June 1, 1993) - -------------------------------------------------------------------------------- Section 6a. VICE CHAIRMAN. The Vice Chairman, if such an Officer be elected, shall, if present and in the absence of the Chairman, preside at meetings of the Shareholders and at meetings of the Board of Directors, and exercise such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. (Amendment approved by Unanimous Written Consent of the Board of Directors signed June 1, 1993) - -------------------------------------------------------------------------------- Section 7. PRESIDENT. The President shall be the Chief Operating Officer of the corporation and shall have the specific supervision, direction and control of the day-to-day operations of the corporation and subordinate Officers and management. He shall have the powers and duties of management usually vested in the office of President and Chief Operating Officer, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. (Amendment approved by Unanimous Written Consent of the Board of Directors signed June 1, 1993) - -------------------------------------------------------------------------------- CHANGE IN BY-LAWS SAFARILAND LTD., INC. A California Corporation * * * * * * * * * * * * * * * * * Resolution adopted at Shareholders Meeting held on the 21st day of December, 1977. Resolution regarding the number of Directors and the rules on voting. Amendment to Section II , Article 3 of the By-Laws of Safariland Limited, Inc. All Directors shall serve as equal members. In cases of equal division of votes cast on any motion, the Chairman of the Board shall be given a sole, additional vote to be cast to decide the motion. All other By-Laws remain unaffected by this amendment. /s/ Paul N. Risinger ---------------------------- Paul N. Risinger, Secretary ATTEST: /s/ Neale A. Perkins - --------------------------- Neale A. Perkins, President EX-3.77 75 file074.txt CERTIFICATE OF INCORPORATION OF SAFARILAND ARTICLES OF INCORPORATION OF SAFARILAND GOVERNMENT SALES, INC. - -------------------------------------------------------------------------------- ARTICLE I The name of this corporation is Safariland Government Sales, Inc. ARTICLE II The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business, or the practice of a profession permitted to be incorporated by the California Corporations Code. ARTICLE III The name and complete business address in the State of California of this corporation's initial agent for service of process is: David M. Holmes, Esq. LAW OFFICES OF DAVID M. HOLMES, INC. 27281 Las Ramblas, Suite 155 Mission Viejo, CA 92691 ARTICLE IV This corporation is authorized to issue only one class of shares, which shall be designated "common" shares. The total number of such shares authorized to be issued is 1,000,000 shares. I declare that I am the person who executed the above Articles of Incorporation, and that this instrument is my act and deed. Dated: February 27, 1998 /s/ David M. Holmes ------------------------------------- David M. Holmes, Incorporator EX-3.78 76 file075.txt BYLAWS OF SAFARILAND GOVERNMENT SALES, INC. BYLAWS OF SAFARILAND GOVERNMENT SALES, INC., A California Corporation TABLE OF CONTENTS OF BYLAWS ARTICLE I. OFFICES Page ---- Section 1. Principal Executive Office........................................1 Section 2. Other Offices.....................................................1 ARTICLE II. SHAREHOLDERS Section 1. Place of Meetings.................................................1 Section 2. Annual Meetings...................................................1 Section 3. Special Meetings..................................................1 Section 4. Notice of Annual or Special Meetings..............................1 Section 5. Quorum............................................................2 Section 6. Adjourned Meetings and Notice Thereof.............................3 Section 7. Voting............................................................3 Section 8. Record Date.......................................................5 Section 9. Consent of Absentees..............................................5 Section 10. Action Without Meeting............................................5 Section 11. Proxies...........................................................6 Section 12. Inspectors of Election............................................6 Section 13. Conduct of Meeting................................................6 ARTICLE III. DIRECTORS Section 1. Powers............................................................7 Section 2. Number of Directors...............................................7 Section 3. Election and Term of Office.......................................7 Section 4. Vacancies.........................................................7 Section 5. Place of Meeting..................................................8 Section 6. Regular Meetings..................................................8 Section 7. Special Meetings..................................................8 Section 8. Quorum............................................................9 Section 9. Participation in Meetings by Conference Telephone.................9 Section 10. Waiver of Notice..................................................9 Section 11. Adjournment......................................................10 Section 12. Fees and Compensation............................................10 Section 13. Action Without Meeting...........................................10 Section 14. Rights of Inspection.............................................10 Section 15. Committees.......................................................10 ARTICLE IV. OFFICERS Section 1. Officers.........................................................11 Section 2. Election.........................................................11 Section 3. Subordinate Officers.............................................11 Section 4. Removal and Resignation..........................................11 i ARTICLE IV. OFFICERS (Cont'd) Section 5. Vacancies........................................................11 Section 6. Chairman of the Board............................................11 Section 7. President........................................................11 Section 8. Vice Presidents..................................................12 Section 9. Secretary........................................................12 Section 10. Chief Financial Officer..........................................12 ARTICLE V. OTHER PROVISIONS Section 1. Inspection of Corporate Records..................................13 Section 2. Inspection of Bylaws.............................................13 Section 3. Execution of Documents; Contracts................................13 Section 4. Certificates of Stock............................................14 Section 5. Representation of Shares of Other Corporations...................14 Section 6. Stock Purchase Plans.............................................14 Section 7. Annual Report to Shareholders....................................15 Section 8. Construction and Definitions.....................................15 ARTICLE VI. INDEMNIFICATION Section 1. Definitions......................................................15 Section 2. Indemnification in Actions by Third Parties......................15 Section 3. Indemnification in Actions by or in The Right of The Corporation...............................................15 Section 4. Indemnification Against Expenses.................................16 Section 5. Required Determinations..........................................16 Section 6. Advance of Expenses..............................................16 Section 7. Other Indemnification............................................17 Section 8. Forms of Indemnification Not Permitted...........................17 Section 9. Insurance........................................................17 Section 10. Nonapplicability to Fiduciaries of Employee Benefit Plans.................................................17 ARTICLE VII. EMERGENCY PROVISIONS Section 1. General..........................................................17 Section 2. Unavailable Directors............................................18 Section 3. Authorized Number of Directors...................................18 Section 4. Quorum...........................................................18 Section 5. Creation of Emergency Committee..................................18 Section 6. Constitution of Emergency Committee..............................18 Section 7. Powers of Emergency Committee....................................19 Section 8. Directors Becoming Available.....................................19 Section 9. Election of Board of Directors...................................19 Section 10. Termination of Emergency Committee...............................19 ARTICLE VIII. AMENDMENTS.....................................................19 PRESIDENT'S CERTIFICATE OF ADOPTION OF BYLAWS IN LIEU OF SECRETARY'S CERTIFICATION......................................19 ii BYLAWS OF SAFARILAND GOVERNMENT SALES, INC. ARTICLE I. OFFICES Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of the corporation is located at such place as the Board of Directors (below called the "Board") shall determine. The Board is authorized to change the principal executive office from one location to another. Section 2. OTHER OFFICES. Branch or subordinate offices may be established at any time by or under the authority of the Board at any place or places. ARTICLE II. SHAREHOLDERS Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held either at the principal executive office of the corporation or at any place within or without California that is designated either by the Board or by the written consent of all persons entitled to vote at the meeting, given either before or after the meeting and filed with the Secretary. Section 2. ANNUAL MEETINGS. The annual meetings of shareholders shall be held on a date and at a time fixed by the Board. At annual meetings, directors shall be elected and any other proper business may be transacted. Section 3. SPECIAL MEETINGS. Special meetings of the shareholders may be called at any time by the Board, the Chairman of the Board, the President, or by the holders of shares entitled to cast not less than 10 percent of the votes at such meeting. Upon request in writing to the Chairman of the Board, the President, any Vice President or the Secretary by any person(s) other than the Board entitled to call a special meeting of shareholders, the officer forthwith shall cause notice to be given to the shareholders entitled to vote that a meeting will be held at a time requested by the person or persons calling the meeting, not less than 35 nor more than 60 days after the receipt of the request. If the notice is not given within 20 days after receipt of the request, the person(s) entitled to call the meeting may give the notice. Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written notice of each annual or special meeting of shareholders shall be given not less than 10 (or, if sent by third-class mail, 30) or more than 60 days before the date of the meeting to each shareholder entitled to vote at the meeting. The notice shall state the place, date, and hour of the meeting and (a) in the case of a special meeting, the general nature of the business to be transacted, and no other business may be transacted, or (b) in the case of the annual meeting, those matters which the Board, at the time of the mailing of the notice, intends to present for action of the shareholders, but, subject to the provisions of applicable law, any proper matter may be presented at the meeting for action. The notice of any meeting at which directors are to be elected shall include the names of nominees intended at the time of the notice to be presented by the board for election. 1 Any shareholder approval at a meeting, other than unanimous approval by those entitled to vote, pursuant to the following sections of the California Corporations Code shall be valid only if the general nature of the proposal so approved was stated in the notice of meeting or in any written waiver of notice: (a) Section 310: contracts in which a director has a material financial interest; (b) Section 902: certain amendments of the articles of incorporation; (c) Section 1201: approval of the principal terms of a reorganization; (d) Section 1900: election to wind up and dissolve; and (e) Section 2007: certain distributions other than cash to holders of preferred shares. Notice of a shareholders' meeting shall be given to each shareholder either personally or by first-class mail or by other means of written communication, or, if the corporation has outstanding shares held of record by 500 or more persons (determined as provided in Corporations Code Section 605) on the record date for the shareholders' meeting, notice may be sent by third-class mail or by other means of written communication, addressed to the shareholder at the address of the shareholder appearing on the books of the corporation or given by the shareholder to the corporation for the purpose of notice. If no address for that shareholder appears or is given, notice may be given at the place where the principal executive office of the corporation is located or by publication at least once in a newspaper of general circulation in the county in which the principal executive office is located. Notice by mail shall be deemed to have been given at the time a written notice is deposited in the United States mails, postage prepaid. Notice by mail shall be by first-class mail unless these Bylaws specify or permit some other form of mail. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient or is delivered to a common carrier for transmission, or actually transmitted by the person giving the notice by electronic means, to the recipient. If any notice or report addressed and sent to a shareholder at the address of the shareholder appearing on the books of the corporation is returned to it by the United States postal service marked to indicate that the service is unable to deliver the notice to the shareholder at that address, all future notices or reports shall be deemed to have been duly given without further mailing if they shall be available to the shareholder upon written demand of the shareholder at the principal executive office of the corporation for a period of one year from the date of the giving of the notice or report to all other shareholders. Section 5. QUORUM. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders. The affirmative vote of the majority of the shares represented and voting at a duly held meeting at which a quorum is present (provided that shares voting affirmatively also constitute at least a majority of the required quorum) shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by law or by the Articles and except as provided in the following sentence. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. 2 Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders, meeting, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares represented either in person or by proxy at the meeting, but in the absence of a quorum (except as provided in Section 5 of this Article) no other business may be transacted at the meeting. It shall not be necessary to give any notice of the time and place of an adjourned meeting or of the business to be transacted at it, other than by announcement at the meeting at which the adjournment is taken; except that, if any shareholders' meeting is adjourned for more than 45 days or, if after adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given in the same manner as for an original meeting. Section 7. VOTING. The only shareholders entitled to notice of or to vote at any meeting of shareholders shall be persons in whose name shares entitled to vote stand on the stock records of the corporation on the record date determined in accordance with Section 8 of this Article. Voting of shares of the corporation shall in all cases be subject to the provisions of Sections 700-711 of the Corporations Code and to the following provisions: (a) Subject to clause (h), shares held by an administrator, executor, guardian, conservator, or custodian may be voted by the holder either in person or by proxy, without a transfer of the shares into the holder's name; and shares standing in the name of a trustee may be voted by the trustee, either in person or by proxy, but no trustee shall be entitled to vote shares held by the trustee without a transfer of the shares into the trustee's name. (b) Shares standing in the name of a receiver may be voted by the receiver, and shares held by or under the control of a receiver may be voted by the receiver without being transferred into the receiver's name if authority to vote the shares is contained in the order of the court by which the receiver was appointed. (c) Subject to the provisions of Corporations Code Section 705, and except where otherwise agreed in writing between the parties, a shareholder whose shares are pledged shall be entitled to vote them until they have been transferred into the name of the pledgee. Thereafter, the pledgee shall be entitled to vote the shares so transferred. (d) Shares standing in the name of a minor may be voted and the corporation may treat all rights incident to the shares as exercisable by the minor, in person or by proxy, whether or not the corporation has notice, actual or constructive, of the nonage, unless a guardian of the minor's property has been appointed and written notice of that appointment has been given to the corporation. (e) Shares held by or under the control of an attorney-in-fact may, if the power of attorney appointing the attorney-in-fact authorizes the attorney-in-fact to vote the shares, be voted and the corporation may treat all rights incident to them as exercisable by the attorney-in-fact, in person or by proxy, without their transfer into the name of the attorney-in-fact. (f) Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent, or proxyholder as the bylaws of the other corporation 3 may prescribe or, in the absence of such a provision, as the Board of Directors of the other corporation may determine or, in the absence of such determination, by the chairman of the board, president or any vice president of the other corporation, or by any other person authorized to do so by the chairman of the board, president, or any vice president of the other corporation. Shares which are purported to be voted or any proxy purported to be executed in the name of a corporation (whether or not any title of the person signing is indicated) shall be presumed to be voted or the proxy executed in accordance with the provisions of this clause, unless the contrary is shown. (g) Shares of the corporation owned by a subsidiary of the corporation shall not be entitled to vote on any matter. (h) Shares of the corporation held by it in a fiduciary capacity, and shares of the corporation held in a fiduciary capacity by any subsidiary, shall not be entitled to vote on any matter except (i) to the extent that the settlor or beneficial owner possesses and exercises a right to vote or to give the corporation binding instructions as to how to vote the shares, and (ii) when there are one or more co-trustees who are not affected by the prohibition of this clause, in which case the shares may be voted by the co-trustee(s) as if it or they are the sole trustee. (i) If shares stand of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, husband and wife as community property, tenants by the entirety, voting trustees, persons entitled to vote under a shareholder voting agreement or otherwise, or if two or more persons (including proxyholders) have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship in which the contrary is so provided, their acts with respect to voting shall have the following effect: (i) If only one votes, that act binds all; (ii) If more than one vote, the act of the majority so voting binds all; (iii) If more than one vote, but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionately. If the instrument so filed or the registration of the shares shows that any such tenancy is held in unequal interests, a majority or even split for the purpose of this section shall be a majority or even split in interest. Subject to the following sentence and to the provisions of Corporations Code Section 708 and except as otherwise provided in the Articles, every shareholder entitled to vote at any election of directors may cumulate the shareholder's votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which the shareholder's shares are normally entitled, or may distribute the shareholder's votes on the same principle among as many candidates as the shareholder thinks fit. No shareholder shall be entitled to cumulate votes for any candidate or candidates pursuant to the preceding sentence unless the candidate's or candidates' names have been placed in nomination prior to the voting and the shareholder has given notice, at the meeting prior to the voting, of the shareholder's intention to cumulate the shareholder's votes. If any one shareholder has given that notice, all shareholders may cumulate their votes for candidates in nomination. 4 Elections need not be by ballot; except that all elections for directors must be by ballot upon demand made by a shareholder at the meeting and before the voting begins. In any election of directors, the candidates receiving the highest number of votes of the shares entitled to be voted for them up to the number of directors to be elected by those shares are elected. Section 8. RECORD DATE. The Board may fix, in advance, a record date to determine the shareholders entitled to notice of any meeting or to vote or entitled to receive payment of any dividend or other distribution, or any allotment of rights, or to exercise rights in respect of any other lawful action. A record date shall not be fixed more than 60 or less than 10 days prior to the date of the meeting or more than 60 days prior to any other action. When a record date is fixed, only shareholders of record on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution, or allotment of rights, or to exercise of the rights, as the case may be, notwithstanding any transfer of shares on the books of the corporation after the record date. A record date for a meeting of shareholders shall apply to any adjournment of the meeting unless the Board fixes a new record date for the adjourned meeting. The Board shall fix a new record date if the meeting is adjourned for more than 45 days. If no record date is fixed by the Board, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day on which notice of the meetings is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. The record date for determining shareholders for any purpose other than set forth in this Section 8 or Section 10 of this Article shall be at the close of business on the day on which the Board adopts the resolution relating thereto, or the sixtieth day prior to the date of such other action, whichever is later. Section 9. CONSENT OF ABSENTEES. The transactions of any meeting of shareholders, however called and noticed, and wherever held, are as valid as though had at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote who was not present in person or by proxy signs a written waiver of notice, or a consent to the holding of the meeting or an approval of the minutes of the meeting. All such waivers, consents, or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of and presence at the meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters required by the California General Corporation Law to be included in the notice of the meeting but not so included, if the objection is expressly made at the meeting. Neither the business to be transacted at nor the purpose of any regular or special meeting of shareholders need be specified in any written waiver of notice, consent to the holding of the meeting or approval of the minutes of the meeting, except that if any action with respect to any of the matters referred to in the second paragraph of Section 4 of this Article was or is to be taken at the meeting, the waiver of notice of the meeting must state that that action was to be or will be taken. Section 10. ACTION WITHOUT MEETING. Subject to Corporations Code Section 603, any action which, under any provision of that law, may be taken at any meeting of shareholders, may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at 5 a meeting at which all shares entitled to vote thereon were present and voted. Unless a record date for voting purposes is fixed as provided in Section 8 of this Article, the record date for determining shareholders entitled to give consent pursuant to this Section 10, when no prior action by the Board has been taken, shall be the day on which the first written consent is given. Section 11. PROXIES. Every person entitled to vote shares has the right to do so either in person or by one or more persons authorized by a written proxy executed by the person entitled to vote and filed with the Secretary. A proxy duly executed continues in full force and effect until revoked by the person executing it before the vote pursuant thereto. A proxy may be revoked either (i) by a writing delivered to the Secretary stating that the proxy is revoked, (ii) by a subsequent proxy executed by the person executing the prior proxy and presented to the meeting, or (iii) as to any meeting, by attendance at the meeting and voting in person by the person executing the proxy. No proxy shall be valid after the expiration of 11 months from the date of its execution unless otherwise provided in the proxy. The dates contained on proxies presented to a meeting presumptively determine the order of their execution, regardless of postmark dates on envelopes in which they may have been mailed, but if there is no date on a proxy, the postmark date on the envelope in which it was mailed shall be presumed in the absence of information to the contrary to be the date of execution of the proxy. Section 12. INSPECTORS OF ELECTION. In advance of any meeting of shareholders, the Board may appoint inspectors of election to act at the meeting and any adjournment of it. If inspectors of election are not so appointed, or if any persons so appointed fail to appear or refuse to act, the presiding officer of the meeting may, and on the request any shareholder or shareholder's proxy shall, make such appointment at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares represented at the meeting shall determine whether one or three inspectors are to be appointed. The duties of inspectors of election shall be as prescribed by Corporations Code Section 707(b) and shall include: determining the number of shares outstanding and the voting power of each; determining the shares represented at the meeting; determining the existence of a quorum; determining the authenticity, validity, and effect of proxies; receiving votes, ballots, or consents; hearing and determining all challenges and questions in any way arising in connection with the right to vote; counting and tabulating all votes or consents; determining when the polls shall close; determining the result; and doing such acts as may be proper to conduct the election or vote with fairness to all shareholders. If there are three inspectors of election, the decision, act, or certificate of a majority is effective in all respects as the decision, act, or certificate of all. Section 13. CONDUCT OF MEETING. The President shall preside at all meetings of the shareholders, shall conduct each such meeting in a businesslike and fair manner, but shall not be obligated to follow any technical, formal, or parliamentary rules or principles of procedure. Rulings of the presiding officer on procedural matters shall be conclusive and binding on all shareholders, unless at the time of a ruling a request for a vote on the ruling is made to the shareholders entitled to vote and represented in person or by proxy at the meeting, in which case the decision of a majority of such shares shall be conclusive and binding on all shareholders. Without limiting the generality of the foregoing, the presiding officer shall have all of the powers usually vested in the presiding officer at a meeting of shareholders. 6 ARTICLE III. DIRECTORS Section 1. POWERS. Subject to provisions of the Articles, these Bylaws, and the California General Corporation Law relating to action required to be approved by the shareholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board. The Board may delegate the management of the day-to-day operation of the business of the corporation to a management company or other person provided that the business and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. Without prejudice to these general powers, but subject to the same provisions just stated, it is hereby expressly declared that the Board shall have the following powers in addition to the other powers enumerated in these Bylaws: (a) To select and remove all the other officers, agents, and employees of the corporation, prescribe qualifications, powers and duties for them not inconsistent with law, the Articles or these Bylaws, fix their compensation, and require from them security for faithful service. (b) To conduct, manage, and control the affairs and business of the corporation and to make rules and regulations therefor not inconsistent with law, the Articles or these Bylaws, as they may deem best. (c) To adopt and use a corporate seal, to prescribe the forms of certificates of stock, and to alter the forms of corporate seal or certificates of stock from time to time as the Board may deem best. (d) To authorize the issuance of shares of stock of the corporation from time to time, upon such terms and for such consideration as may be lawful. (e) To borrow money and incur indebtedness for the purposes of the corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, or other evidences of debt and security therefor. Section 2. NUMBER OF DIRECTORS. The authorized number of directors shall be three (3) until changed by amendment of the Articles or by a Bylaw duly adopted by the shareholders amending this Section 2. Section 3. ELECTION AND TERM OF OFFICE. The directors shall be elected at each annual meeting of shareholders, but if any annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for that purpose. Each director shall hold office until the next annual meeting and until a successor has been elected and qualified. Section 4. VACANCIES. Any director may resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary, or the Board, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. Vacancies in the Board, except those existing as a result of a removal of a director, may be 7 filled by approval of the Board, or, if the number of directors then in office is less than a quorum, by the unanimous written consent of the directors then in office, the affirmative vote of a majority of directors then in office at a meeting held pursuant to notice or waivers of notice, or by a sole remaining director. Each director so elected shall hold office until the end of the term of office for which elected and until a successor has been elected and qualified. A vacancy or vacancies in the Board shall be deemed to exist when any authorized position of director is not filled by a duly elected director, whether the vacancy is caused by death, resignation or removal of any director, by increase in the authorized number of directors, by failure of the shareholders, at any annual or special meeting of shareholders at which any director or directors are to be elected, to elect a full authorized number of directors to be voted for at that meeting, or otherwise. The Board may declare vacant the office of a director who has been declared of unsound mind by an order of court or has been convicted of a felony. The shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors. Any such election by written consent, other than to fill a vacancy created by removal, requires the consent of a majority of the outstanding shares entitled to vote. Any such election by written consent to fill a vacancy created by removal requires unanimous consent. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of the director's term of office. Section 5. PLACE OF MEETING. Regular or special meetings of the Board shall be held at any place within or without California, which has been designated from time to time by the Board. In the absence of such designation, regular meetings shall be held at the principal executive office of the corporation. Section 6. REGULAR MEETINGS. Immediately following each annual meeting of shareholders the Board shall hold a regular meeting for the purpose of organization, election of officers, and the transaction of other business. Other regular meetings of the Board shall be held without call on such dates and at such times as may be fixed by the Board. Call and notice of all regular meetings of the Board are hereby dispensed with. Section 7. SPECIAL MEETINGS. Special meetings of the Board for any purpose or purposes may be called at any time by the Chairman of the Board, the President, any Vice President the Secretary, or by any two directors. Special meetings of the Board shall be held upon four days' written notice or 48 hours' notice given personally or by telephone (including a voice messaging system or other system or technology designed to record and communicate messages), telegraph, facsimile, electronic mail, or other electronic means. Any such notice shall be addressed or delivered to each director at the director's address as shown upon the records of the corporation or as given to the corporation by the director for purposes of notice or, if such an address is not shown on such records or is not readily ascertainable, at the place in which the meetings of the directors are regularly held. 8 Notice by mail shall be deemed to have been given at the time a written notice is deposited in the United States mail, first class postage prepaid. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient or is delivered to a common carrier for transmission, or actually transmitted by the person giving the notice by electronic means or by facsimile transmission, to the recipient. Oral notice shall be deemed to have been given at the time it is communicated, in person or by telephone or wireless, to the recipient or to a person at the office of the recipient who the person giving the notice has reason to believe will promptly communicate it to the recipient. Section 8. QUORUM. A majority of the authorized number of directors constitutes a quorum of the Board for the transaction of business, except to adjourn as provided in Section 11 of this Article. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present is the act of the Board, unless a greater number is required by law (such as, for example, consideration of contracts or other transactions between a corporation and one or more of its directors or a corporation, firm, or association in which one or more of its directors has a material financial interest or the appointment of committees as authorized by Section 15 of this Article) or by the Articles. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for such meeting. Section 9. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of the Board may participate in a meeting through use of conference telephone, electronic video screen communication, or other communications equipment. Participation in a directors' meeting through those means constitutes presence in person at that meeting if all of the following apply: (a) each director participating in the meeting can communicate with all of the other directors concurrently; and (b) each director is provided the means of participating in all matters before the board including the capacity to propose, or to interpose an objection, to a specific action to be taken by the corporation; and (c) the corporation adopts and implements some means of verifying both of the following: (i) a person communicating by telephone, electronic video screen or other communications equipment is a director entitled to participate in the board meeting; and (ii) all statements, questions, actions or votes were made by that director and not by another person not permitted to participate as a director. Section 10. WAIVER OF NOTICE. Notice of a meeting need not be given to any director who signs a waiver of notice or a consent to holding the meeting or an approval of its minutes of the meeting, whether before or after the meeting, or who attends the meeting without protesting, before the meeting or at its commencement, the lack of notice to that director. All such waivers, consents, and approvals as to a Board meeting shall be filed with the corporate records or made a part of the minutes of the meeting. 9 Section 11. ADJOURNMENT. A majority of the directors present, whether or not a quorum is present, may adjourn any Board meeting to another time and place. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place are fixed at the meeting adjourned, except as provided in the next sentence. If the meeting is adjourned for more than 24 hours, notice of any adjournment to another time or place shall be given, before the time of the adjourned meeting, to the directors who were not present at the time of the adjournment. Section 12. FEES AND COMPENSATION. Directors and members of committees may receive compensation, if any, for their services, and reimbursement for expenses, as may be fixed or determined by the Board. Section 13. ACTION WITHOUT MEETING. Any action required or permitted to be taken by the Board may be taken without a meeting if all directors individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. An action by written consent shall have the same force and effect as a unanimous vote of the directors. Section 14. RIGHTS OF INSPECTION. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records, and documents of every kind and to inspect the physical properties of the corporation and also of its subsidiary corporations, domestic or foreign. Such inspection by a director may be made in person or by agent or attorney and includes the right to copy and obtain extracts. Section 15. COMMITTEES. The Board may designate one or more committees, each consisting of two or more directors. The Board may delegate to such committees any of the authority of the Board except authority to: (a) Approve any action for which the General Corporation Law also requires shareholders' approval or approval of the outstanding shares; (b) Fill vacancies on the Board or in any committee; (c) Fix compensation of the directors for serving on the Board or on any committee; (d) Amend or repeal bylaws or adopt new bylaws; (e) Amend or repeal any resolution of the Board which by its express terms is not so amendable or repealable; (f) Distribute to the shareholders of the corporation except at a rate or in a periodic amount or within a price range determined by the Board; or (g) Appoint other committees of the Board or the members thereof. Any such committee must be appointed by resolution adopted by a majority of the authorized number of directors and any such committee may be designated an Executive Committee or by such other name as the Board shall specify. The Board may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. The appointment of members or alternate members of a 10 committee requires the vote of a majority of the authorized number of directors. The Board shall have the power to prescribe the manner in which proceedings of any committee shall be conducted. In the absence of prescription by the Board, a committee shall have the power to prescribe the manner in which its proceedings shall be conducted. Unless the Board or a committee shall otherwise provide, regular and special meetings and other actions of the committee shall be governed by the provisions of this Article applicable to meetings and actions of the Board. Minutes shall be kept of each meeting of each committee. ARTICLE IV. OFFICERS Section 1. OFFICERS. The officers of the corporation shall be a President, a Secretary, and a Chief Financial Officer. The corporation may also have, at the discretion of the Board, a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Chief Financial Officers, and such other officers as may be elected or appointed in accordance with the provisions of Section 3 of this Article. Section 2. ELECTION. The officers of the corporation, except those elected or appointed in accordance with Section 3 or Section 5 of this Article, shall be chosen annually by, and shall serve at the pleasure of, the Board. Each shall hold office until resignation, removal, or other disqualification from service, or until a successor shall be elected. Section 3. SUBORDINATE OFFICERS. The Board may elect, and may empower an officer elected by the Board to appoint such other officers as the business of the corporation may require, each to hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board may from time to time determine. Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, either with or without cause, by the Board at any time or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board. Any such removal shall be without prejudice to the rights, if any, of the officer under any contract of employment of the officer. Any officer may resign at any time by giving written notice to the corporation, but without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party. An officer's resignation shall take effect at the date of the receipt of such notice by the corporation or at any later time specified in the resignation. Unless otherwise specified in the resignation, the acceptance of it shall not be necessary to make it effective. Section 5. VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular election or appointment to that office. Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any, shall, if present, preside at all meetings of the Board and exercise and perform such other powers and duties as may be from time to time assigned by the Board. Section 7. PRESIDENT. Subject to such powers, if any, as may be given by the Board to the Chairman of the Board, if any, the President is the general manager and chief executive officer of the corporation and has, subject to the control of the Board, general supervision, direction, and control of the business and officers of the corporation. The President shall preside 11 at all meetings of the shareholders and, in the absence of the Chairman of the Board, or if there is none, at all meetings of the Board. The President has the general powers and duties of management usually vested in the office of president and general manager of a corporation and such other powers and duties prescribed by the Board. Section 8. VICE PRESIDENTS. In the absence or disability of the President, the Vice Presidents in order of their rank as fixed by the Board or, if not ranked, the Vice President designated by the Board, shall perform all the duties of the President. A Vice President so acting shall have all the powers of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such other powers and perform such other duties prescribed for them respectively by the Board. Section 9. SECRETARY. The Secretary shall keep or cause to be kept, at the principal executive office or such other place as the Board may order, a book of minutes of all meetings of shareholders, the Board, and its committees, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice or waivers of notice thereof given, the names of those present at Board and committee meetings, the number of shares present or represented at shareholders' meetings, and the proceedings thereof. The Secretary shall keep, or cause to be kept, a copy of the Bylaws of the corporation at the principal executive officer or business office in accordance with Corporations Code Section 213. The Secretary shall keep, or cause to be kept, at the principal executive office or at the office of the corporation's transfer agent or registrar, if one is appointed, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give, or cause to be given, notice of all the meetings of the shareholders and of the Board and of any committees thereof required by these Bylaws or by law to be given, shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board. Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer is the chief financial officer of the corporation and shall maintain, or cause to be maintained, adequate and correct accounts of the properties and financial and business transactions of the corporation, and shall send or cause to be sent to the shareholders of the corporation financial statements and reports that by law or these Bylaws are required to be sent to them. The books of account shall at all times be open to inspection by any director. The Chief Financial Officer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the Board. The Chief Financial Officer shall disburse the funds of the corporation as may be ordered by the Board, shall render to the President and directors, whenever they request it, an account of all transactions as Chief Financial Officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board. 12 ARTICLE V. OTHER PROVISIONS Section 1. INSPECTION OF CORPORATE RECORDS. (a) A shareholder or shareholders holding at least five percent in the aggregate of the outstanding voting shares of the corporation or who hold at least one percent of the outstanding voting shares and have filed a Schedule 14B with the United States Securities and Exchange Commission relating to the election of directors of the corporation shall have an absolute right to do either or both of the following: (i) Inspect and copy the record of shareholders' names and addresses and shareholdings during usual business hours upon five business days' prior written demand upon the corporation. (ii) Obtain from the transfer agent, if any, for the corporation, upon written demand and upon the tender of its usual charges for such a list (the amount of which charges shall be stated to the shareholder by the transfer agent upon request), a list of the shareholders' names and addresses who are entitled to vote for the election of directors and their shareholdings, as of the most recent record date for which it has been compiled or as of a date specified by the shareholder subsequent to the date of demand. The list shall be made available on or before the later of five business days after the demand is received, or the date specified in the demand as the date as of which the list is to be compiled. (b) The record of shareholders shall also be open to inspection and copying by any shareholder or holder of a voting trust certificate at any time during usual business hours upon written demand on the corporation, for a purpose reasonably related to such holder's interest as a shareholder or holder of a voting trust certificate. A written demand for such inspection shall be accompanied by a statement in reasonable detail of the purpose of the inspection. (c) The accounting books and records and minutes of proceedings of the shareholders and the Board and committees of the Board shall be open to inspection upon written demand on the corporation by any shareholder or holder of a voting trust certificate at any reasonable time during usual business hours, for a purpose reasonably related to such holder's interest as a shareholder or as a holder of such voting trust certificate. A written demand for such inspection shall be accompanied by a statement in reasonable detail of the purpose of the inspection. (d) Any inspection and copying under this Article may be made in person or by agent or attorney. Section 2. INSPECTION OF BYLAWS. The corporation shall keep in its principal executive office in California or, if its principal executive office is not in California, at its principal business office in California, the original or a copy of these Bylaws as amended to date, which shall be open to inspection by shareholders at all reasonable times during office hours. If the principal executive officer of the corporation is outside California and the corporation has no principal business office in California, it shall, upon the written request of any shareholder, furnish to the shareholder a copy of these Bylaws as amended to date. Section 3. EXECUTION OF DOCUMENTS; CONTRACTS. Subject to the provisions of applicable law, any note, mortgage, evidence of indebtedness, contract, share certificate, initial transaction statement or written statement, conveyance, or other instrument in writing and any 13 assignment or endorsements thereof executed or entered into between the corporation and any other person, when signed by the Chairman of the Board, the President or any Vice President, and the Secretary, any Assistant Secretary, the Chief Financial Officer or any Assistant Chief Financial Officer of the corporation shall be valid and binding on the corporation in the absence of actual knowledge on the part of the other person that the signing officers did not have authority to execute it. Any such instruments may be signed by any other person or persons and in the manner from time to time determined by the Board. Unless authorized by the Board, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or amount. Section 4. CERTIFICATES OF STOCK. Subject to Corporations Code Section 416(b), every holder of shares of the corporation shall be entitled to have a certificate signed in the name of the corporation by the Chairman of the Board, the President or a Vice President, and by the Chief Financial Officer or an Assistant Chief Financial Officer or the Secretary or an Assistant Secretary, certifying the number of shares and the class or series of shares owned by the shareholder. Any or all of the signatures on the certificate may be facsimile. If any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be that officer, transfer agent, or registrar before the certificate is issued, it may be issued by the corporation with the same effect as if the person were an officer, transfer agent, or registrar at the date of issue. Certificates for shares may be issued prior to full payment under such restrictions and for such purposes as the Board may provide; but any certificate issued to represent any partly paid shares, or any initial transaction statement issued for any partly paid shares that are uncertificated securities, shall state the total amount of the consideration to be paid therefor and the amount paid thereon. Except as provided in this Section, no new certificate for shares shall be issued in lieu of an old one unless the old one is surrendered and cancelled at the same time. The Board may, however, if any certificate for shares is alleged to have been lost, stolen, or destroyed, authorize the issuance of a new certificate in lieu of the old one, and the corporation may require that it be given a bond or other adequate security sufficient to indemnify it against any claim that may be made against it (including expense or liability) on account of the alleged loss, theft, or destruction of such certificate or the issuance of such new certificate. Section 5. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or any other officer or officers authorized by the Board or the President are each authorized to vote, represent, and exercise on behalf of the corporation all rights incident to any and all shares or other securities of any other corporation or corporations standing in the name of the corporation. The authority herein granted may be exercised either by any such officer in person or by any other person authorized so to do by proxy or power of attorney duly executed by that officer. Section 6. STOCK PURCHASE PLANS. The corporation may adopt and carry out a stock purchase plan or agreement or stock option plan or agreement providing for the issue and sale for such consideration as may be fixed of its unissued shares, or of issued shares acquired or to be acquired, to one or more of the employees or directors of the corporation or of a subsidiary or a parent of the corporation or to a trustee on their behalf and for the payment for such shares in installments or at one time, and may provide for aiding any such persons in paying for such shares by compensation for services rendered, promissory notes, or otherwise. 14 Any such stock purchase plan or agreement or stock option plan or agreement may include, among other features, the fixing of eligibility for participation therein, the class and price of shares to be issued or sold under the plan or agreement, the number of shares which may be subscribed for, the method of payment for shares, the reservation of title until full payment for shares, the effect of the termination of employment, an option or obligation on the part of the corporation to repurchase the shares upon termination of employment, restrictions upon transfer of the shares, the time limits of and termination of the plan, and any other matters, not in violation of applicable law, as may be included in the plan as approved or authorized by the Board or any committee of the Board. Section 7. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders referred to in Corporations Code Section 1501 is expressly waived, but nothing herein shall be interpreted as prohibiting the Board from issuing annual or other periodic reports to shareholders. Section 8. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise requires, the general provisions, rules of construction, and definitions contained in the General Provisions of the California Corporations Code and in the California General Corporation Law shall govern the construction of these Bylaws. ARTICLE VI. INDEMNIFICATION Section 1. DEFINITIONS. For the purposes of this Article, "agent" includes any person who is or was a director, officer, employee, or other agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, or was a director, officer, employee, or agent of a foreign or domestic corporation which was a predecessor corporation of the corporation or of another enterprise at the request of the predecessor corporation; "proceeding" includes any threatened, pending, or completed action or proceeding, whether civil, criminal, administrative or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or Section 5(d) of this Article. Section 2. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the corporation to procure a judgment in its favor) by reason of being or having been an agent of the corporation, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the proceeding, if that person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of the person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by or in the 15 right of the corporation to procure a judgment in its favor by reason of being or having been an agent of the corporation, against expenses actually and reasonably incurred by that person in connection with the defense or settlement of the action if the person acted in good faith, in a manner the person believed to be in the best interests of the corporation and its shareholders. No indemnification shall be made under this Section 3 for any of the following: (a) In respect of any claim, issue, or matter as to which the person shall have been adjudged to be liable to the corporation in the performance of that person's duty to the corporation and its shareholders, unless and only to the extent that the court in which the proceeding is or was pending shall determine on application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for the expenses and then only to the extent that the court shall determine; (b) Of amounts paid in settling or otherwise disposing of a pending action without court approval; or (c) Of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval. Section 4. INDEMNIFICATION AGAINST EXPENSES. To the extent that an agent of the corporation has been successful on the merits in defense of any proceeding referred to in Sections 2 or 3 of this Article or in defense of any claim, issue, or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. REQUIRED DETERMINATIONS. Except as provided in Section 4 of this Article, any indemnification under this Article shall be made by the corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Sections 2 or 3 of this Article by any of the following: (a) A majority vote of a quorum consisting of directors who are not parties to the proceeding; (b) Independent legal counsel in a written opinion, if such a quorum of directors is not obtainable; (c) Approval of the shareholders, with the shares owned by the person to be indemnified not being entitled to vote thereon; or (d) The court in which the proceeding is or was pending on application made by the corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not the application by the agent, attorney, or other person is opposed by the corporation. Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending any proceeding may be advanced by the corporation prior to the final disposition of the proceeding on receipt of an undertaking by or on behalf of the agent to repay that amount if it shall be determined ultimately that the agent is not entitled to be indemnified as authorized in this Article. 16 Section 7. OTHER INDEMNIFICATION. The indemnification authorized by this Article shall not be exclusive of any additional rights to indemnification for breach of duty to the corporation and its shareholders, while acting in the capacity of a director or officer of the corporation, to the extent the additional rights to indemnification are authorized in a provision of the articles adopted pursuant to Corporations Code Section 204(a)(11). The indemnification provided by this Article for acts, omissions, or transactions while acting in the capacity of, or while serving as, a director, or officer of the corporation, but not involving any breach of duty to the corporation and its shareholders, shall not be exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, to the extent the additional rights to indemnification are authorized in the articles. A provision in the articles authorizing indemnification "in excess of that otherwise permitted by Section 317" or "to the fullest extent permissible under California law," or a substantial equivalent, shall be construed to be both a provision for additional indemnification for breach of duty to the corporation and its shareholders as referred to in, and with the limitations required by, Corporations Code Section 204(a)(11), and a provision for additional indemnification as referred to in Corporations Code Section 317(g). The rights to indemnity under this article shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of the person. Nothing contained in this Article shall affect any right to indemnification to which persons other than the directors and officers may be entitled by contract or otherwise. Section 8. FORMS OF INDEMNIFICATION NOT PERMITTED. No indemnification or advance shall be made under this Article, except as provided in Section 4 or Section 5(d) in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles, these Bylaws, a resolution of the shareholders, or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. INSURANCE. The corporation shall have power to purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in that capacity or arising out of the agent's status as such, whether or not the corporation would have the power to indemnify the agent against that liability under the provisions of this Article. Section 10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT PLANS. This Article does not apply to any proceeding against any trustee, investment manager, or other fiduciary of an employee benefit plan in that person's capacity as such, even though the person may also be an agent of the corporation as defined in Section 1 of this Article. The corporation shall have the power to indemnify such a trustee, investment manager, or other fiduciary to the extent permitted by California Corporations Code Section 207(f). ARTICLE VII. EMERGENCY PROVISIONS Section 1. GENERAL. The provisions of this Article shall be operative only during a national emergency declared by the President of the United States or the person performing the 17 President's functions, or in the event of a nuclear, atomic, or other attack on the United States or a disaster making it impossible or impracticable for the corporation to conduct its business without recourse to the provisions of this Article. The provisions of this Article in that event shall override all other Bylaws of the corporation in conflict with any provisions of this Article, and shall remain operative so long as it remains impossible or impracticable to continue the business of the corporation otherwise, but thereafter shall be inoperative; provided that all actions taken in good faith pursuant to such provisions shall thereafter remain in full force and effect unless and until revoked by action taken pursuant to the provisions of the Bylaws other than those contained in this Article. Section 2. UNAVAILABLE DIRECTORS. All directors of the corporation who are not available to perform their duties as directors by reason of physical or mental incapacity or for any other reason or who are unwilling to perform their duties or whose whereabouts are unknown shall automatically cease to be directors, with like effect as if they had resigned as directors, so long as such unavailability continues. Section 3. AUTHORIZED NUMBER OF DIRECTORS. The authorized number of directors shall be the number of directors remaining after eliminating those who have ceased to be directors pursuant to Section 2, or the minimum number required by law, whichever number is greater. Section 4. QUORUM. The number of directors necessary to constitute a quorum shall be one-third of the authorized number of directors as specified in the foregoing Section, or such other minimum number as, pursuant to the law or lawful decree then in force, it is possible for the Bylaws of a corporation to specify. Section 5. CREATION OF EMERGENCY COMMITTEE. If the number of directors remaining after eliminating those who have ceased to be directors pursuant to Section 2 is less than the minimum number of authorized directors required by law, then until the appointment of additional directors to make up such required minimum, all the powers and authority which the Board could by law delegate, including all powers and authority which the Board could delegate to a committee, shall be automatically vested in an emergency committee, and the emergency committee shall thereafter manage the affairs of the corporation pursuant to such powers and authority and shall have all such other powers and authority as law or lawful decree may confer on any person or body of persons during a period of emergency. Section 6. CONSTITUTION OF EMERGENCY COMMITTEE. The emergency committee shall consist of all the directors remaining after eliminating those who have ceased to be directors pursuant to Section 2, provided that those remaining directors are not less than three in number. If the remaining directors number less than three, the emergency committee shall consist of three persons, who shall be the remaining director or directors and either one or two officers or employees of the corporation, as the remaining director or directors may in writing designate. If there is no remaining director, the emergency committee shall consist of the three most senior officers of the corporation who are available to serve, and if and to the extent that officers are not available, the most senior employees of the corporation. Seniority shall be determined in accordance with any designation of seniority in the minutes of the proceedings of the Board, and in the absence of such designation, shall be determined by rate of remuneration. If there are no remaining directors and no officers or employees of the corporation available, the emergency committee shall consist of three persons designated in writing by the shareholder owning the largest number of shares of record as of the date of the last record date. 18 Section 7. POWERS OF EMERGENCY COMMITTEE. The emergency committee, once appointed, shall govern its own procedures and shall have power to increase the number of members thereof beyond the original number, and if a vacancy or vacancies therein arises at any time, the remaining member or members of the emergency committee shall have the power to fill such vacancy or vacancies. If, at any time after its appointment, all members of the emergency committee shall die or resign or become unavailable to act for any reason whatsoever, a new emergency committee shall be appointed in accordance with the foregoing provisions of this Article. Section 8. DIRECTORS BECOMING AVAILABLE. Any person who has ceased to be a director pursuant to the provisions of Section 2 and who thereafter becomes available to serve as a director shall automatically become a member of the emergency committee. Section 9. ELECTION OF BOARD OF DIRECTORS. The emergency committee shall, as soon after its appointment as is practicable, take all requisite action to secure the election of a board of directors, and, upon such election, all the powers and authorities of the emergency committee shall cease. Section 10. TERMINATION OF EMERGENCY COMMITTEE. If after the appointment of an emergency committee, a sufficient number of persons who ceased to be directors pursuant to Section 2 become available to serve as directors, so that if they had not ceased to be directors as aforesaid, there would be enough directors to constitute the minimum number of directors required by law, then all such persons shall automatically be deemed to be reappointed as directors and the powers and authorities of the emergency committee shall be at an end. ARTICLE VIII. AMENDMENTS These Bylaws may be amended or repealed either by approval of the outstanding shares (as defined in Corporations Code Section 152 ) or by the approval of the Board; except that, after the issuance of shares, a Bylaw specifying or changing a fixed number of directors or the maximum or minimum number or changing from a fixed to a variable number of directors or vice versa may only be adopted by approval of the outstanding shares and a Bylaw reducing the fixed number or the minimum number of directors to a number less than five shall be subject to the provisions of Corporations Code Section 212(a). PRESIDENT'S CERTIFICATE OF ADOPTION OF BYLAWS IN LIEU OF SECRETARY'S CERTIFICATION I, the undersigned, do hereby certify that I am the duly elected and acting President of Safariland Government Sales, Inc., a California corporation, and the foregoing Bylaws, comprising 19 pages, constitute the Bylaws of the corporation as duly adopted by Unanimous Written Consent of the Board of Directors dated effective as of April 1, 1998. Signed and sealed to be effective on April 1, 1998. /s/ Scott T. O'Brien - ------------------------------------ Scott T. O'Brien, President [corporate seal] 19 EX-3.79 77 file076.txt CERTIFICATE OF INCORPORATION OF SAI CAPITAL CORP. ARTICLES OF INCORPORATION of ARTCRAFT INDUSTRIES ACQUISITION CORP. an Arizona corporations The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Aricles of Incorporation. 1. Name. The name of this Corporation is: ARTCRAFT INDUSTRIES ACQUISITION CORP. 2. Statutory Place of Business. The initial statutory place of business of the corporation shall be 401 West Baseline, Suite 204, Tempe, Arizona 85283 3. Purpose and powers. This Corporation is organized for the transaction of any and lawful business for which corporations may be incorporated under the laws of the state of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be as contractor and subcontractor of seating products and components utilized in vehicles. 5. Capital Stock. The authorized capital stock of the corporation shall be 10,000 shares of the Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value or any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The corporation appoints Tiffany & Hoffmann, P.A., 500 Dial Tower, 1850 North Central Avenue, Phoenix, Arizona 85004, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. -1- The initial Board of Directors shall consist of two persons, who shall serve until his successor qualified according to the Bylaws, and whose name and address is: Name Mailing Address ---- --------------- Stanley P. Desjardins 10016 South 51st Street Phoenix, Arizona 85044 Donald Townsend 401 West Baseline Suite 204 Tempe, Arizona 85283 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address ---- --------------- Bradley P. Forst, Esq. 500 Dial Tower 1850 North Central Phoenix, Arizona 85004 Todd A. Christensen 500 Dial Tower 1850 North Central Phoenix, Arizona 85004 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. -2- IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 23 day of Sept, 1994. /s/ Bradley P. Forst ------------------------ BRADLEY P. FORST /s/ Todd A. Christensen ------------------------ TODD A. CHRISTENSEN -3- AMENDMENT TO ARTICLES OF INCORPORATION OF SIMULA ARTCRAFT INDUSTRIES INC. Pursuant to the provisions of A.R.S. Sections 10-1001, et. seq., the undersigned Corporation adopts the following amendment to its Articles of Incorporation: 1. The name of the Corporation is Simula Artcraft Industries Inc. (the "Corporation"). 2. This Amendment to the Articles of Incorporation amends the provisions of the Articles of Incorporation of the Corporation filed with the Arizona Corporation Commission on September 23, 1994 (as previously amended, the "Articles of Incorporation"), and was duly adopted by the Board of Directors and shareholders of the Corporation in accordance with the applicable provisions of Sections 10-1001 through 10-1009 of the Arizona. Revised Statutes. a. Article 1 is hereby amended by deleting such Article 1 in its entirety and replacing the deleted Article 1 with the following: 1. Name. The name of the corporation is SAI Capital Corp. b. Except as expressly amended herein, all other provisions of the Articles of Incorporation of this Corporation shall remain unchanged and in full force and effect as filed with the Arizona Corporation Commission and as amended prior to the date hereof. 3. The number of shares of the no par value common stock ("Common Stock") of the corporation issued and outstanding at the time of such adoption and entitled to vote thereon was Five Thousand (5,000) shares of Common Stock. 4. Five thousand (5,000) shares of Common Stock voted for the amendment, and zero (0) shares of Common Stock voted against the amendment. 5. The number of shares of Common Stock cast for the amendment was sufficient for approval by that voting group. DATED this 6 day of February, 2002. SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona corporation, on its own behalf and its subsidiary, SIMULA ARTCRAFT INDUSTRIES INC. By: /s/ Mari I. Valenzuela ----------------------------- Name: Mari I. Valenzuela Title: Secretary AMENDMENT TO ARTICLES OF INCORPORATION OF ARTCRAFT INDUSTRIES CORP. Pursuant to the provisions of A.R.S. Sections 10-1O01,et. seq., the undersigned Corporation adopts the following amendment to its Articles of Incorporation: 1. The name of the Corporation is Artcraft Industries Corp. (the "Corporation"). 2. This Amendment to the Articles of Incorporation amends the provisions of the Articles of Incorporation of the Corporation filed with the Arizona Corporation Commission on September 23,1994 (as previously amended, the "Articles of Incorporation"), and was duly adopted by the Board of Directors and shareholders of the Corporation in accordance with the applicable provisions of Sections 10-1001 through 10-1009 of the Arizona Revised Statutes. a. Article 1 is hereby amended by deleting such Article 1 in its entirety and replacing the deleted Article 1 with the following: 1. Name. The name of the corporation is Simula Artcraft Industries Inc. b. Except as expressly amended herein, all other provisions of the Articles of Incorporation of this Corporation shall remain unchanged and in full force and effect as filed with the Arizona Corporation Commission and as amended prior to the date hereof. 3. The number of shares of the no par value common stock ("Common Stock") of the corporation issued and outstanding at the time of such adoption and entitled to vote thereon was Five Thousand (5,000) shares of Common Stock. 4. Five thousand (5,000) shares of Common Stock voted for the amendment, and zero (0) shares of Common Stock voted against the amendment. 5. The number of shares of Common Stock cast for the amendment was sufficient for approval by that voting group. DATED this 1st day of March, 2000. SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona corporation By: /s/ Bradley P. Forst ------------------------------------ Name: Bradley P. Forst Title: Secretary ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF ARTCRAFT INDUSTRIES ACQUISITION CORP. Pursuant to Section 10-058 et seq. including Section 10-061 of the Arizona General Corporation Law, ARTCRAFT INDUSTRIES ACQUISITION CORP., an Arizona corporation, hereby amends its Articles of Incorporation as follows: FIRST: Article One of the Articles of Incorporation is hereby amended to read as follows: "The name of the corporation is Artcraft Industries Corp." SECOND: This amendment was adopted by the board of directors and sole shareholder of Artcraft Industries Acquisition Corp. pursuant to Sections 10-058 et seq. of the Arizona General Corporation Law on September 29, 1994 THIRD: The shares outstanding and entitled to vote on the amendment were 5,000 shares of Common Stock, and no other shares were entitled to vote as a class or series. FOURTH: The number of shares voted for the amendment was 5,000, the number of shares voted against was 0 and the number of shares that abstained from voting was 0. FIFTH: The amendment does not provide for an exchange, reclassification or cancellation of issued shares nor effect a change in the amount of stated capital of Artcraft Industries Acquisition Corp. IN WITNESS WHEREOF, the undersigned officers hereby certify this 29th day of September 1994 that the foregoing amendment has been duly adopted in accordance with Sections 10-058 et seq. of the Arizona General Corporation Law. By: /s/ Donald W. Townsend ------------------------------ Donald W. Townsend, President By: /s/ Kevin Clark ------------------------------ Kevin Clark, Secretary -1- EX-3.80 78 file077.txt BYLAWS OF SAI CAPITAL CORP. BYLAWS of ARTCRAFT INDUSTRIES ACQUISITION CORP. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction, of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of September of each year, commencing with the year 1995, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation -1- acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of -2- sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the -3- affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies, A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders, Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such -4- trustee shall be entitled to vote shares held by him without a transfer of such Shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants is common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect; (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally, 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) -5- the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in -6- consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be -7- held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such -8- relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. -9- 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer, The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of -10- the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. A11 officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal -11- on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make if effective. IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. -12- X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seat Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. -13- XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 the capital stock, subject to the provisions of the Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. 12.06 Conduct of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. ***** -14- CERTIFICATION The undersigned Secretary of ARTCRAFT INDUSTRIES ACQUISITION CORP., an Arizona corporation, hereby certifies that the foregoing Bylaws of the Corporation were duly adopted pursuant to the Unanimous written Consent of the Board of Directors in Lieu of Organizational Meeting dated ____________, 1994. /s/ DONALD W. TOWNSEND --------------------------- DONALD W. TOWNSEND -15- EX-3.81 79 file078.txt CERTIFICATE OF INCORPORATION ARTICLES OF INCORPORATION of SIMULA GOVERNMENT PRODUCTS, INC. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: SIMULA GOVERNMENT PRODUCTS, INC. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 10016 South 51st street, Phoenix, Arizona 85044. 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be as contractor and subcontractor for projects and products bid and purchased by the United States Government, its agencies and instrumentalities, and prime contractors thereof. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Tiffany & Hoffmann, P.A., 3550 North Central Avenue, Suite 1801, Phoenix, Arizona 85012, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. -1- The initial Board of Directors shall consist of two persons, who shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address - ---- --------------- S. P. Desjardins 10016 South 51st Street Phoenix, Arizona 85044 Donald Townsend 10016 South 51st Street Phoenix, Arizona 85044 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address - ---- --------------- Donald Townsend 10016 South 51st Street Phoenix, Arizona 85044 Cora Yanacek 10016 South 51st Street Phoenix, Arizona 85044 All powers, duties and responsibilities of the Incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. -2- IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 12 day of april, 1993. /s/ Donald Townsend ---------------------------------------- DONALD TOWNSEND /s/ Cora Yanacek ---------------------------------------- CORA YANACEK -3- AMENDMENT TO ARTICLES OF INCORPORATION OF SIMULA SAFETY SYSTEMS, INC. Pursuant to the provisions of A.R.S. Sections 10-1001, et. seq., the undersigned Corporation adopts the following amendment to its Articles of Incorporation: 1. The name of the Corporation is Simula Safety Systems, Inc. (the "Corporation"). 2. This Amendment to the Articles of Incorporation amends the provisions of the Articles of Incorporation of the Corporation filed with the Arizona Corporation Commission on April 13,1993 (as previously amended, the "Articles of Incorporation"), and was duly adopted by the Board of Directors and shareholders of the Corporation in accordance with the applicable provisions of Sections 10-1001 through 10-1009 of the Arizona Revised Statutes. a. Article 1 is hereby amended by deleting such Article 1 in its entirety and replacing the deleted Article 1 with the following: 1. Name. The name of the corporation is Simula Aerospace & Defense Group, Inc. b. Except as expressly amended herein, all other provisions of the Articles of Incorporation of this Corporation shall remain unchanged and in full force and effect as filed with the Arizona Corporation Commission and as amended prior to the date hereof. 3. The number of shares of the no par value common stock ("Common Stock") of the corporation issued and outstanding at the time of such adoption and entitled to vote thereon was Five Thousand (5,000) shares of Common Stock. 4. Five thousand (5,000) shares of Common Stock voted for the amendment, and zero (0) shares of Common Stock voted against the amendment. 5. The number of shares of Common Stock cast for the amendment was sufficient for approval by that voting group. DATED this 18 day of February 2003. SIMULA SAFETY SYSTEMS, INC., an Arizona corporation By: /s/ Mari I. Valenzuela ---------------------------------- Name: Mari I. Valenzuela Title: Assistant Secretary ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF SIMULA HOLDINGS, INC. Pursuant to Sections 10-1001 et seq. of the Arizona General Corporation Law, SIMULA HOLDINGS, INC., an Arizona corporation, hereby amends its Articles of Incorporation as follows: FIRST: Section One of the Articles of Incorporation is hereby amended to read as follows: "The name of the corporation is Simula Safety Systems, Inc." SECOND: This amendment was adopted by the board of directors and sole shareholder of Simula Holdings, Inc. pursuant to Sections 10-1003 and 10-1006 of the Arizona General Corporation Law effective July 15, 1997. THIRD: The shares outstanding and entitled to vote on the amendment were 5,000 shares of Common Stock, and no other shares were entitled to vote as a class or series. FOURTH: The number of shares voted for the amendment was 5,000. The number of shares voted against was 0 and the number of shares that abstained from voting was 0. FIFTH: The amendment does not provide for an exchange, reclassification or cancellation of issued shares nor effect a change in the amount of stated capital of Simula Holdings, Inc. IN WITNESS WHEREOF, the undersigned officer hereby certifies this 15th day of July, 1997, that the foregoing amendment has been duly adopted in accordance with Sections 10-1001 et seq. of the Arizona General Corporation Law. SIMULA HOLDINGS, INC., an Arizona corporation By /s/ Bradley P. Forst ----------------------------------------- Bradley P. Forst, Assistant Secretary EX-3.82 80 file079.txt BYLAWS OF SIMULA AEROSPACE & DEFENSE GROUP, INC. BYLAWS of SIMULA GOVERNMENT PRODUCTS, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of April of each year, commencing with the year 1994, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. -1- 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes -2- of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the -3- vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the names of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. -4- (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such -5- nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of -6- certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such -7- shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. -8- 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. -9- (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. -10- VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence -11- of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make if effective. -12- IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.4 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.5 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged -13- loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made; a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of construction and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. -14- 12.06 Conduct of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. * * * * * CERTIFICATION The undersigned Secretary of SIMULA GOVERNMENT PRODUCTS, INC., an Arizona corporation, hereby certifies that the foregoing Bylaws of the Corporation were duly adopted pursuant to the Unanimous Written Consent of the Board of Directors in Lieu of Organizational Meeting dated april 12, 1993. /s/ DONALD TOWNSEND ---------------------------- DONALD TOWNSEND -15- EX-3.83 81 file080.txt CERTIFICATE OF INCORPORATION OF SIMULA, INC. AMENDED AND RESTATED ARTICLES OF INCORPORATION of SIMULA, INC., as Arizona corporation The undersigned persons have associated themselves for the purpose of continuing a corporation under the laws of Arizona adopt the following Amended and Restated Articles of incorporation. These Amended and Restated Articles of Incorporation supersede the original Articles of Incorporation filed on July 14,1975, as amended by the Articles of Amendment filed on October 15, 1981, as amended by the Articles of Amendment filed on March 11, 1983, and as amended by the Articles of Amendment filed on September 3, 1987. 1. Name. The name of this Corporation is: SIMULA, INC. 2. Statutory Place of Business. The statutory place of business of the Corporation shall be 10016 S. 51st Street, Phoenix, Arizona 85044-5299. 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business initially and presently transacted by the Corporation is research, development and manufacturing of crashworthy aircraft components and related structural products 5. Capital Stock. The aggregate number of shares of capital stock that the Corporation shall be authorized to issue is One Hundred Million (100,000,000) shares, which shall consist of the following. a. Common Stock. The authorized common stock of the Corporation shall be fifty million (50,000,000) shares of Common Stock, par value $.01 per share. (i) Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive. (ii) Voting Rights. Except with respect to the election of directors, where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. -1- b. Serial Preferred Stock. The authorized preferred stock of the Corporation shall be Fifty Million (50,000,000) shares of serial preferred stock, par value $.05 per share. Subject to the terms and provisions of this Article 5, the Board of Directors of the Corporation is authorized to provide, from time to time, for the issuance of shares of serial preferred stock in series and to fix from time to time, before issuance the designation, preferences, privileges and voting powers of the shares of each series of serial preferred stock and the restrictions or qualifications thereof, including, without limiting the generality of the foregoing, the following: (i) The serial designation and authorized number of shares; (ii) The dividend rate, the date or dates on which such dividends will be payable, and the extent to which such dividends may be cumulative; (iii) The amount or amounts to be received by the holders in the event of voluntary or involuntary dissolution or liquidation of the Corporation; (iv) The voting rights, if any, of the holders; (v) The price of prices at which shares may be redeemed and any terms, conditions and limitations upon such redemption; (vi) Any sinking fund provisions for redemption or purchase of shares of such series; and (vii) The terms and conditions, if any, on which shares may be converted at the election of the holders thereof into shares of other capital stock, or of other series of serial preferred stock of the Corporation. Each series of serial preferred stock, in preference to the common stock, will be entitled to dividends, from funds or other assets legally available therefor, as such rates, payable at such times and cumulative to such extent as may be fixed by the Board of Directors of the Corporation pursuant to the authority herein conferred upon it. In the event of dissolution or liquidation of the Corporation, voluntary or involuntary, the holders of the serial preferred stock, in preference to the common stock, will be entitled to receive such amount or amounts as may be fixed by the Board of Directors of the Corporation pursuant to the authority herein conferred upon it. Preference stock of any series redeemed, converted, exchanged, purchased or otherwise acquired by the Corporation shall be cancelled by the Corporation and returned to the states of authorised but unissued preference stock. All shares of any series of serial preferred stock, as between themselves, shall rank equally and be identical; and all series of serial preferred stock, as between themselves shall rank equally and be identical except as set forth in resolutions of the Board of Directors authorizing the issuance of the series. 6. Statutory Agent. The Corporation appoints Tiffany & Hoffmann, P.A., 1801 First Interstate Tower, 3550 North Central Avenue, Phoenix, Arizona 85012, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than two (2) nor more than fifteen (15) and may be altered from time to time as may -2- be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. The initial Board of Directors shall consist of two (2) persons, who shall serve until their successors are qualified according to the Bylaws, and whose names and addresses are: Name Mailing Address ---- --------------- Stanley P. Desjardins 8307 East Buena Terra Way Scottsdale, Arizona 85253 Frederick E. Arndt 14628 North 38th Avenue Phoenix, Arizona 85023 8. Incorporators. The names and addresses of the original incorporators are: Name Mailing Address ---- --------------- Stanley P. Desjardins 8307 East Buena Terra Way Scottsdale, Arizona 85253 Frederick E. Arndt 14628 North 38th Avenue Phoenix, Arizona 85023 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors to the Corporation and its shareholders for monetary damages for breach of fiduciary duty as a director shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona, pursuant to A.R.S. Section 10-054(9), provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) payment of an improper dividend, (iv) for any transaction from which the director derived an improper personal benefit, or (v) violation of A.R.S. Section 10-041. This provision shall not eliminate or limit the liability of a director for any act or omission occurring prior to the effective date of A.R.S. Section 10-054(9). 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. -3- 12. Arizona Takeover Act. The Corporation elects not to be governed by Article 2-Control Share Acquisitions, and Article 3-Business Combinations, of the Arizona Takeover Act, Arizona Revised Statutes Section 10-1201 et seq. -4- ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF SIMULA, INC. Pursuant to Section 10-058 et seq. including Section 10-061 of the Arizona General Corporation Law, SIMULA, INC., an Arizona corporation, hereby amends its Articles of Incorporation as follows: FIRST: Article 7 Article 12 of the Articles of Incorporation are hereby amended to read as set forth on Exhibit A hereto. SECOND: This amendment was adopted by the board of directors on April 27, 1995, and by the shareholders of Simula, Inc. on June 22, 1995, pursuant to Sections 10-058 et. seq. of the Arizona General Corporation Law THIRD: The shares outstanding and entitled to vote on the amendment were 4,464,721 shares of Common Stock, and no other shares were entitled to vote as a class or series. FOURTH: The number of shares voted for the amendment was 3,711,314 the number of shares voted against was 511,540 and the number of shares that abstained from voting was 55,405. FIFTH: The amendment does not provide for an exchange, reclassification or cancellation of issued shares nor effect a change in the amount of stated capital of Simula, Inc. IN WITNESS WHEREOF, the undersigned officers hereby certify this 22nd day of June, 1995, that the foregoing amendment has been duly adopted in accordance with Sections 10-058 et seq. of the Arizona General Corporation Law. By: /s/ Donald W. Townsend ------------------------------------ Donald W. Townsend, President By: /s/ Kevin Clark ------------------------------------ Kevin Clark, Secretary EXHIBIT A TO ARTICLES OF AMENDMENT 7. Board of Directors. The number of directors of the Corporation shall be not less than two (2) nor more than fifteen (15) and may be altered from time to time as may be provided to the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. If the board of directors shall consist of nine or more members as determined pursuant to the Bylaws and by the board of directors, in lieu of electing the whole number of directors annually, the directors shall be divided into two or three classes, the number in each class to be fixed nearly as equal in number as possible. The term of office of directors of the first class shall expire at the first annual meeting of the shareholders after their election, that of the second class shall expire at the second annual meeting after their election and that of the third class, if any, shall expire at the third annual meeting after their election. At each annual meeting after such classification, the number of directors equal to the number of class whose term expires at the time of such meeting shall be elected to hold office until the next succeeding annual meeting, if their are two classes, or until the third succeeding annual meeting, if there are three classes. 12. Arizona Takeover Act. The Corporation elects to be governed by the Article 2 (Control Share Acquisitions) and Article 3 (Business Combination Provisions) of the Arizona Takeover Act, Arizona Revised Statutes Section 10-1201 et seq STATE OF ARIZONA ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF SIMULA, INC., an Arizona corporation Pursuant to Sections 10-058 et seq., including Section 10-061, of the Arizona General Corporation Law, Simula Inc., an Arizona corporation, was incorporated on July 14, 1975, amended its Articles of Incorporation on October 15, 1981, March 11, 1983, and September 3, 1987, and hereby adopts the following fourth Articles of Amendment as follows: FIRST: The name of the Corporation is SIMULA, INC. SECOND: The Articles of Incorporation of Simula, Inc., as amended, are amended and restated in their entirety as set forth on Exhibit A hereto. THIRD: This amendment was adopted by the board of directors and sole shareholder of Simula, Inc. pursuant to Sections 10-058 et seq. of the Arizona General Corporation Law on February 26, 1992. FOURTH: The shares outstanding and entitled to vote on the amendment were 190,000 shares of Class A Common Stock, and no other shares were entitled to vote as a class or series. FIFTH: The number of shares voted for the amendment was 190,000, the number of shares voted against was 0 and the number of shares that abstained from voting was 0. SIXTH: The amendment does not provide for an exchange, reclassification or cancellation of issued shares nor effect a change in the amount of stated capital of Simula, Inc. IN WITNESS WHEREOF, the undersigned officers hereby certify this 26th day of February, 1992 that the foregoing amendment has been duly adopted in accordance with Section 10-058 et seq. of the Arizona General Corporation Law. /s/ Stanley P. Desjardins ------------------------------------ STANLEY P. DESJARDINS, President /s/ Donald W. Townsend ------------------------------------ DONALD W. TOWNSEND, Secretary -1- EX-3.84 82 file081.txt BYLAWS OF SIMULA, INC. BYLAWS of SIMULA, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the third Wednesday of May of each year, commencing with the year 1992, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day or will be held on such other day as determined by the Board of Directors. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question -1- for consideration and action at an annual meeting of shareholders. Shareholders' proposals will be included in proxy solicitation materials and considered and submitted to a vote at an annual meeting only if the proponents of any such proposals comply with the rules and regulations promulgated under Section 14(a) of the Securities Exchange Act of 1934 and the chairman, upon advice of counsel, determines that such shareholders' proposals should be considered. 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting, Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of -2- record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of -3- Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made -4- irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: -5- (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder; and (iv) any other information concerning the nominee that must be disclosed with respect to nominees in proxy solicitations pursuant to the rules, regulations and forms then promulgated under Section 14(a) of the Securities Exchange Act of 1934. The chairman of the meeting may, if the facts warrant, determine that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. -6- 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation, (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor, (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than two (2) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any -7- incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation, 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders, 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a -8- director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, -9- approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be -10- inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a -11- Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant -12- importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective. -13- IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates, bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.4 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.5 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to -14- countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. -15- 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. 12.06 Conduit of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. 12.07 Transactions in the Corporation's Securities. The Corporation shall have the power to sell, redeem, or repurchase its shares, to the extent permissible under Arizona law, in the judgement of the Board of Directors and the executive management of the Corporation and with respect to such shares repurchased shall have the power to designate such shares as Treasury Stock, to be held for cancellation or reissuance. In connection with the foregoing transactions, the Corporation shall have the power in connects with new shares, or repurchased shares, to pledge such shares according to the customary terms and conditions of margin loan accounts, for the purposes of serving as collateral for loans obtained to provide financing for the Corporation. * * * * * CERTIFICATION The undersigned Secretary of SIMULA, INC., an Arizona corporation, hereby certifies that the foregoing Bylaws of the Corporation were duly adopted pursuant to the Unanimous Written Consent of the Board of Directors in Lieu of Meeting Thereof dated February 26, 1992. /s/ Donald Townsend ------------------------------------ ________________, Secretary -16- EX-3.85 83 file082.txt CERTIFICATE OF INCORPORATION OF SIMULA POLYMER ARTICLES OF INCORPORATION of SIMULA POLYMER SYSTEMS, INC. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: SIMULA POLYMER SYSTEMS, INC. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 2700 North Central, Suite 1000, Phoenix, AZ 85004. 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be the development and manufacture of advanced polymer products. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Bradley P. Forst, an individual, whose address is 2700 North Central Avenue, Suite 1000, Phoenix, Arizona 85004, as its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-502. 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. The initial Board of Directors shall consist of three persons, who shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address - ---- --------------- Donald W. Townsend 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 Paul G. Apen 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 Bradley P. Forst 2700 North Central Suite 1000 Phoenix, Arizona 85004 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address - ---- --------------- Bradley P. Forst 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 Benjamin G. Clark 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-861, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for any action taken or any failure to take any action as a director, except as otherwise specifically required under A.R.S. Section 10-202(B). No amendment to or repeal of this Article shall apply to or -2- have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 21st day of October, 1998. /s/ Bradley P. Forst -------------------------------- BRADLEY P. FORST /s/ Benjamin G. Clark -------------------------------- BENJAMIN G. CLARK -3- EX-3.86 84 file083.txt BYLAWS OF SIMULA POLYMER SYSTEMS, INC. BYLAWS of SIMULA POLYMER SYSTEMS, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of November of each year, commencing with the year 1998, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time staled therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to -2- corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for -3- such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of -4- the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: -5- (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. -6- IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in consideration of money paid, labor done or services actually rendered, debts or securities canceled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. -7- 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives -8- the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or -9- (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize; approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. -10- 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof, and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and -11- Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. -12- 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositories, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make if effective. IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its Incorporation. -13- 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. -14- XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number -15- EX-3.87 85 file084.txt ARTICLES OF INCORPORATION ARTICLES OF INCORPORATION of SIMULA TECHNOLOGIES, INC. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: SIMULA TECHNOLOGIES, INC. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 10016 South 51st Street, Phoenix, Arizona 85044-5299. 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4 Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be research and technology development. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. Voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Bradley P. Forst, an individual, whose address is 2700 North Central Avenue, Suite 1000, Phoenix, Arizona 85004, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. The initial Board of Directors shall consist of five persons, who shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address - ---- --------------- Donald W. Townsend 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 Stanley P. Desjardins 2700 North Central Suite 1000 Phoenix, Arizona 85004 Joseph W. Coltman 10016 South 51st Street Phoenix, Arizona 85004-5299 Sean K. Nolen 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 Bradley P. Forst 2700 North Central Suite 1000 Phoenix, Arizona 85004 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address - ---- --------------- Bradley P. Forst 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 Todd A. Christensen 2700 North Central Avenue Suite 1000 Phoenix, Arizona 85004 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of -2- the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose. 10. Elimination of Director Liability. The personal liability of the directors, shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 20th day of NOVEMBER, 1996. /s/ Bradley P. Forst -------------------------------- BRADLEY P. FORST /s/ Todd A. Christensen -------------------------------- TODD A. CHRISTENSEN -3- EX-3.88 86 file085.txt BYLAWS OF SIMULA TECHNOLOGIES, INC. BYLAWS of SIMULA TECHNOLOGIES, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of November of each year, commencing with the year 1997, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written -2- consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof, they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if -3- any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the vote to which such share shall be entitled, The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of -4- his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: -5- (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election he has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. -6- IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in consideration of money paid, labor done or services actually rendered, debts or securities canceled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. -7- 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, -8- may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or -9- (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable, The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. -10- 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the -11- Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or ail officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. -12- 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositories, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers. Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make if effective. IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of -13- the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. -14- XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter, and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. -15- EX-3.89 87 file086.txt CERT. OF INCORPORATION & AMENDMENTS THERETO ARTICLES OF INCORPORATION of INTAERO, INC. an Arizona corporation The undersigned persons have associated themselves for the purpose of forming a corporation under the laws of Arizona and adopt the following Articles of Incorporation. 1. Name. The name of this Corporation is: INTAERO, INC. 2. Statutory Place of Business. The initial statutory place of business of the Corporation shall be 10016 South 51st Street, Phoenix, Arizona 85044. 3. Purpose and Powers. This Corporation is organized for the transaction of any and all lawful business for which corporations may be incorporated under the laws of the State of Arizona, as they may be amended from time to time. 4. Initial Business. The general nature of the business proposed to be transacted initially by the Corporation shall be as contractor and subcontractor for products and components utilized in commercial airliners, commercial helicopters, and other forms of transportation vehicles. 5. Capital Stock. The authorized capital stock of the Corporation shall be 10,000 shares of Common Stock, $.01 par value. a. Consideration. Stock shall be issued when paid for in cash, past services, real property or personal property and shall, when issued, be fully paid for and forever nonassessable. The judgment of the Board of Directors as to the value of any property contributed or services rendered in exchange for stock shall be conclusive in the absence of fraud. b. voting Rights. Except with respect to the election of directors where cumulative voting is required, the holders of the Common Stock shall be entitled to one vote for each share held by them of record on the books of the Corporation. 6. Statutory Agent. The Corporation appoints Tiffany & Hoffmann, P.A., 3550 North Central Avenue, Suite 1801, Phoenix, Arizona 85012, its statutory agent in and for the State of Arizona. This appointment may be revoked at any time by the Board of Directors authorizing and directing the filing with the Arizona Corporation Commission of a statement in accordance with A.R.S. Section 10-013(A) and (B). 7. Board of Directors. The number of directors of the Corporation shall be not less than one (1) nor more than fifteen (15) and may be altered from time to time as may be provided in the Bylaws. In case of any increase in the number of directors, the additional directors may be elected by the directors or by the shareholders at any annual or special meeting, as shall be provided in the Bylaws. -1- The initial Board of Directors shall consist of two persons, who shall serve until his successor is qualified according to the Bylaws, and whose name and address is: Name Mailing Address ---- --------------- S. P. Desjardins 10016 South 51st Street Phoenix, Arizona 85044 Donald Townsend 10016 South 51st Street Phoenix, Arizona 85044 8. Incorporators. The names and addresses of the undersigned incorporators are: Name Mailing Address ---- --------------- Donald Townsend 10016 South 51st Street Phoenix, Arizona 85044 Cora Yanacek 10016 South 51st Street Phoenix, Arizona 85044 All powers, duties and responsibilities of the incorporators in their capacity as such shall cease at the time of delivery of these Articles of Incorporation to the Arizona Corporation Commission for filing. 9. Director Conflicts of Interest. To the extent permitted and in accordance with A.R.S. Section 10-041, no contract or other transaction between the Corporation and one or more of its directors or any other corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose 10. Elimination of Director Liability. The personal liability of the directors shall be eliminated to the fullest extent permitted by the General Corporation Law of Arizona. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 11. Powers of the Board of Directors. All of the powers of this Corporation, insofar as the same may lawfully be vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this Corporation. -2- IN WITNESS WHEREOF, the following incorporators have signed these Articles of Incorporation on this 2 day of April, 1993. /s/ DONALD TOWNSEND ---------------------------------------- DONALD TOWNSEND /s/ CORA YANACEK ---------------------------------------- CORA YANACEK -3- ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF INTAERO, INC. Pursuant to Sections 10-1001 et seq. of the Arizona General Corporation Law, INTAERO, INC., an Arizona corporation, hereby amends its Articles of Incorporation as follows: FIRST: Section One of the Articles of Incorporation is hereby amended to read as follows: "The name of the corporation is Simula Transportation Equipment Corporation." SECOND: This amendment was adopted by the board of directors and sole shareholder of Intaero, Inc. pursuant to Section 10-1003 and 10-1006 of the Arizona General Corporation Law effective January 1,1997. THIRD: The shares outstanding and entitled to vote on the amendment were 5,000 shares of Common Stock, and no other shares were entitled to vote as a class or series. FOURTH: The number of shares voted for the amendment was 5,000. The number of shares voted against was 0 and the number of shares that abstained from voting was 0. FIFTH: The amendment does not provide for an exchange, reclassification or cancellation of issued shares nor effect a change in the amount of stated capital of Intaero, Inc. IN WITNESS WHEREOF, the undersigned officer hereby certifies this 6th day of January, 1997, that the foregoing amendment has been duly adopted in accordance with Sections 10-1001 et seq. of the Arizona General Corporation Law. INTAERO, INC., an Arizona corporation By /s/ Bradley P. Forst ------------------------------------- Bradley P. Forst, Assistant Secretary EX-3.90 88 file087.txt BY-LAWS OF SIMULA TRANSPORTATION EQUIPMENT BYLAWS of INTAERO, INC. an Arizona corporation I. OFFICES 1.01 Principal Office. The principal office for the transaction of the business of the Corporation shall be fixed by the Board of Directors, either within or without the State of Arizona, by formal resolution. The Board of Directors shall have full power and authority from time to time to change the location of the principal office of the Corporation as the business of the Corporation may require. 1.02 Other Offices. The Corporation may also have offices at such other places both within or without the State of Arizona as the Board of Directors may from time to time determine or the business of the Corporation may require. II. CORPORATION ARTICLES 2.01 References Thereto. Any reference herein made to the Corporation's Articles will be deemed to refer to its Articles of Incorporation and all amendments thereto as at any given time on file with the Arizona Corporation Commission. 2.02 Seniority Thereof. The Statutes of the State of Arizona will in all respects be considered superior to the Articles of Incorporation with any inconsistency resolved in favor of said Statutes. The Statutes and Articles will in all respects be considered senior and superior to these Bylaws, with any inconsistency to be resolved in favor of the Statutes and Articles, and with these Bylaws to be deemed automatically amended from time to time to eliminate any such inconsistency which may then exist. III. SHAREHOLDERS' MEETINGS 3.01 Annual Meetings. Absent a resolution of the Board of Directors providing otherwise, the annual meeting of the shareholders will be held on the last Friday of April of each year, commencing with the year 1994, unless that day be a legal holiday, in which event the annual meeting will be held on the next succeeding business day. The time of day and place of the annual meeting of shareholders shall be as stated by the Secretary, at the direction of the Board of Directors, or in the absence of action by the Board, at the direction of the President, in the notice of such meeting given pursuant to Section 3.04 hereof. If any such annual meeting is for any reason not held on the date determined as aforesaid, a special meeting may thereafter be called and held in lieu thereof, and the same proceedings (including the election of directors) may be conducted thereat as at an annual meeting. Any director elected at any annual meeting, or special meeting in lieu of an annual meeting, will continue in office until the election of his successor, subject to his earlier resignation pursuant to Section 8.01 below. The chairman may present any question for consideration and action at an annual meeting of shareholders. -1- 3.02 Special Meetings. Special meetings of the shareholders may be held whenever and wherever called by the Board of Directors or by the President and Secretary of the Corporation acting together or by the written demand of the holders of not less than ten percent (10%) of all the shares entitled to vote at the meeting. The business which may be conducted at any such special meeting will be confined to the purposes stated in the notice thereof, and to such additional matters as the chairman of such meeting may rule to be germane to such purpose. 3.03 Action of Shareholders Without a Meeting. Any action required to be taken or that might be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by the holders of all of the shares of outstanding stock entitled to vote with respect to the subject matter of the action. Any such consent shall be filed with the corporate records or made a part of the minutes of the meeting. 3.04 Notices. Written notice stating the place, day, and hour of any meeting of shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by the Secretary of the Corporation at the direction of the person or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, first class postage prepaid, addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation. When a meeting is adjourned to another time or place, unless the Bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Whenever any notice is required to be given to any shareholder, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Any such waiver shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 3.05 Record Date for Shareholders. In order to determine the shareholders entitled to notice of or to vote at any meeting of shareholders, or entitled to give their 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 with regard to any lawful action, the Board of Directors may fix, in advance a date, not exceeding seventy (70) days nor less than ten (10) days preceding the date of such meeting or other action, as a record date for the determination of the shareholders of record entitled to notice of, and to vote at, such meeting, or entitled to exercise any rights as shareholders with regard to such action. The shareholders entitled to notice of or to vote at a meeting of shareholders will be determined as of the applicable record date if one has been fixed; otherwise, if no record date is fixed, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at four o'clock in the afternoon on the day before the day on which notice is given and, if no other record date is fixed, the record date for determining shareholders entitled to express consent to corporate action in writing without a meeting shall be the time of the day on which the first written consent is provided. 3.06 Quorum. A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. All shares represented and entitled to vote on any single subject matter which may be brought before the meeting shall be counted for the purposes -2- of determining a quorum. Only those shares entitled to vote on a particular subject matter shall be counted for the purposes of voting on that subject matter. Business may be conducted once a quorum is present and may continue until adjournment of the meeting notwithstanding the withdrawal or temporary absence of sufficient shares to reduce the number present to less than a quorum. Unless the vote of shares representing more than a majority or voting by classes is required, the affirmative vote of the majority of the shares then represented at the meeting entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. 3.07 Voting Records; Election Inspectors. The Secretary of the Corporation shall obtain from the transfer agent of the Corporation a complete record of the shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, arranged is alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof. The Board of Directors, in advance of any shareholders' meeting, may appoint an Election Inspector or Inspectors to act at such meeting (and any adjournment thereof). If an Election Inspector or Inspectors are not so appointed, the chairman of the meeting may, or upon the request of any person entitled to vote at the meeting will, make such appointment. If any person appointed as an Inspector fails to appear or to act, a substitute may be appointed by the chairman of the meeting. If appointed, the Election Inspector or Inspectors (acting through a majority of them if there be more than one) will determine the number of shares outstanding, the authenticity, validity and effect of proxies and the number of shares represented at the meeting in person and by proxy; they will receive and count votes, ballots and consents and announce the results thereof; they will hear and determine all challenges and questions pertaining to proxies and voting; and, in general, they will perform such acts as may be proper to conduct elections and voting with complete fairness to all shareholders. No such Election Inspector need be a shareholder of the Corporation. 3.08 Organization and Conduct of Meetings. Each shareholder's meeting will be called to order and thereafter chaired by the Chairman of the Board if there is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if both the Chairman of the Board and the President are unavailable, then by such other officer of the Corporation or such shareholder as may be appointed by the Board of Directors. The Corporation's Secretary will act as secretary of each shareholders' meeting; in his absence the chairman of the meeting may appoint any person (whether a shareholder or not) to act as secretary. After calling a meeting to order, the chairman thereof may require the registration of all shareholders intending to vote in person, and the filing of all proxies, with the Election Inspector or Inspectors, if one or more have been appointed (or, if not, with the secretary of the meeting). After the announced time for such filing of proxies has ended, no further proxies or changes, substitutions or revocations of proxies will be accepted. If directors are to be elected, a tabulation of the proxies so filed will, if any person entitled to vote in such election so requests, be announced at the meeting (or adjournment thereof) prior to the closing of the election polls. Absent a showing of bad faith on his part, the chairman of the meeting will, among other things, have absolute authority to fix the period of time allowed for the registration of shareholders and the filing of proxies, determine the order of business to be conducted at such meeting and, in the absence of any regulations established by the Board of Directors pursuant to Section 12.06 of these Bylaws, establish reasonable rules for expediting the business of the meeting (including any informal, or question and answer portions thereof). 3.09 Voting. Except as otherwise provided by the Corporation's Articles of Incorporation, as amended, or by Statute, each share of stock represented at any meeting of the shareholders shall be entitled to one vote. Except as otherwise herein provided, the record holder of each share of stock, as determined by the name appearing on the Corporation's books, shall be the person empowered to cast the -3- vote to which such share shall be entitled. The affirmative vote of the majority of the shares then represented at any meeting of shareholders and entitled to vote on the subject matter shall be the act of the shareholders; provided, however, that if the shares then represented are less than required to constitute a quorum, the affirmative vote must be such as would constitute a majority if a quorum were present; provided further, the affirmative vote of a majority of the shares then present is sufficient in all cases to adjourn a meeting. The voting will be by ballot on any question as to which a ballot vote is demanded, prior to the time the voting begins, by any person entitled to vote on such question; otherwise a voice vote will suffice. No ballot or change of vote will be accepted after the polls have been declared closed following the end of the announced time for voting. The following additional provisions shall apply to the voting of shares: (a) Treasury Stock. Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the elections of directors of such other corporation is held by this Corporation, shall neither be entitled to vote nor counted for quorum purposes. Nothing in this subparagraph shall be construed as limiting the right of this Corporation to vote its own stock held by it in a fiduciary capacity. (b) Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In the event any instrument granting a proxy shall designate two or more persons to act as proxy, the majority of such persons present at the meeting, or if only one should be present then that one, shall have and may exercise all the powers conferred by such instrument upon all the persons so designated, unless such instrument shall otherwise provide. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient at law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the share itself or an interest in the Corporation generally. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or quorum is determined, written notice of the death or incapacity is given to the Corporation. A proxy may be revoked by an instrument expressly revoking it, a duly executed proxy bearing a later date, or by the attendance of the person executing the proxy at the meeting and his voting of his shares personally. (c) Corporate Shareholders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe or, in the absence of such provision, as the Board of Directors of such other corporation may determine. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of any such officer, agent or proxy to vote the shares of the Corporation held by any such other corporation. -4- (d) Shares Held by Fiduciary. Shares held by an administrator, executor, guardian, conservator or personal representative may be voted 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, other than a trustee in bankruptcy, may be voted by him, either in person or by proxy, but no such trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver, trustee in bankruptcy, or assignee for the benefit of creditors may be voted by such representative, either in person or by proxy. Shares held by or under the control of such a receiver or trustee may be voted by such receiver or trustee, either in person or by proxy, without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver or trustee was appointed. The Secretary of the Corporation or the Election Inspectors shall have the authority to require that such documents be filed with the Secretary of the Corporation as the Secretary or Election Inspectors shall reasonably require in order to verify the authority and power of such representative or other fiduciary to vote the shares of the Corporation registered in the name of such other person. (e) Pledged Shares. A shareholder 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. (f) Joint Owners. If shares stand in names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety of tenants by community property or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Corporation is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (1) If only one votes, his acts bind. (2) If more than one votes, the act of the majority so voting binds all. (3) If more than one votes, but the vote is evenly split on any particular matter, each faction may vote the shares in question proportionally. 3.10 Nominations of Directors. Nominations for election to the Board of Directors of the Corporation at a meeting of shareholders may be made by the Board of Directors or on behalf of the Board by a nominating committee appointed by the Board, or by any shareholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by or on behalf of the Board, shall be made by notice in writing delivered or mailed by United States mail, first class postage prepaid, to the Secretary of the Corporation, and received by him not less than thirty (30) days nor more than sixty (60) days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than thirty-five (35) days' notice of the meeting is given to shareholders, such -5- nomination shall have been mailed or delivered to the Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and telephone number and, if known, residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating shareholder. 3.11 Election of Directors. At each election for directors, every shareholder entitled to vote at such election shall have the right to cast, in person or by proxy, a number of votes equal to the number of shares owned by him multiplied by the number of directors to be elected and for whose election he has a right to vote, and to distribute such votes in any manner among any number of such candidates for whose election he has a right to vote, or to cumulate his votes by giving one candidate any number of votes not to exceed the number of his shares multiplied by the number of directors to be elected and for whose election be has a right to vote. 3.12 Shareholder Approval or Ratification. The Board of Directors may submit any contract or act for approval or ratification at any duly constituted meeting of the shareholders, the notice of which either includes mention of the proposed submittal or is waived as provided in Section 3.04 above. If any contract or act so submitted is approved or ratified by a majority of the votes cast thereon at such meeting, the same will be valid and as binding upon the Corporation and all of its shareholders as it would be if approved and ratified by each and every shareholder of the Corporation. 3.13 Informalities and Irregularities. All informalities or irregularities in any call or notice of a meeting, or in the areas of credentials, proxies, quorums, voting and similar matters, will be deemed waived if no objection is made at the meeting. IV. BOARD OF DIRECTORS 4.01 Powers. Subject to the limitations of the Articles of Incorporation, the Bylaws, the Arizona General Corporation Law as to actions to be authorized or approved by the shareholders, and subject to the duties of directors as prescribed by the Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. In addition to any other powers granted by the Arizona General Corporation Law, the Articles of Incorporation and the Bylaws, it is hereby expressly declared that the directors shall have the following powers, to-wit: (a) To select and remove all the officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, with the Articles of Incorporation, or the Bylaws and fix their compensation. (b) To conduct, manage and control the affairs and business of the Corporation, and to make such rules and regulations therefor not inconsistent with law, or with the Articles of Incorporation or the Bylaws, as they may deem best. (c) To designate any place within or without the State of Arizona for the holding of any shareholders' meeting or meetings; and to adopt, make and use a corporate seal, and to prescribe the form of -6- certificate of stock, and to alter the forms of such seal and such certificates to ensure that they, at all times, comply with the applicable law. (d) To authorize the issuance of shares of stock of the Corporation from time to time, upon such terms as may he lawful, in consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received, or in the case of shares issued as a dividend against amounts transferred from surplus to stated capital. (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities therefor. (f) To authorize a person or persons to sign and endorse all checks, drafts or other forms for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the Corporation. 4.02 Membership. The business and affairs of the Corporation shall be managed by its Board of Directors, consisting of not less than one (1) nor more than fifteen (15). The Board will have the power to increase or decrease its size within such limits; provided, however, that no decrease shall have the effect of shortening the term of any incumbent director. At the first annual meeting of shareholders and at each annual meeting thereafter, the shareholders shall elect directors to hold office until the next succeeding annual meeting. Each director shall hold office until his successor is elected and qualified, or until his earlier resignation or removal. The directors need not be shareholders or residents of the state of incorporation. 4.03 Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though not less than a quorum, or by a sole remaining director, and any director so chosen shall hold office until the next election of directors when his successor is elected and qualified. Any newly created directorship shall be deemed a vacancy. When one or more directors shall resign from the Board, effective at a future time, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as herein provided in the filling of other vacancies. If at any time, by reason of death or resignation or other cause, a Corporation should have no directors in office, then any officer or any shareholder or an executor, administrator, trustee, guardian or personal representative of a shareholder, or other fiduciary entrusted with like responsibility for the person or estate of a shareholder, may call a special meeting of shareholders. 4.04 Removal of Directors. At a meeting of the shareholders called expressly for that purpose, directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at an election of directors; provided, however, that, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors. 4.05 Meetings. A regular annual meeting of the directors shall be held immediately after the adjournment of each annual shareholders' meeting at the place at which such -7- shareholders' meeting was held. Other meetings of the Board of Directors, regular or special, may be held either within or without this state, and may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting so held shall constitute presence in person at such meeting. Regular meetings other than annual meetings may be held without notice at regular intervals at such places and such times as the Board of Directors may from time to time provide. Special meetings of the Board of Directors may be held whenever and wherever (within the continental United States) called for by the Chairman of the Board, the President, or the number of directors required to constitute a quorum. 4.06 Notices. No notice need be given of regular meetings of the Board of Directors. Written notice of the time and place (but not necessarily the purpose or all of the purposes) of any special meeting will be given to each director in person or via mail or telegram addressed to him at his latest address appearing on the Corporation's records. Notice to any director of any such special meeting will be deemed given sufficiently in advance when, if given by mail, the same is deposited in the United States mail, first-class postage prepaid, at least five (5) days before the meeting date, or if personally delivered or given by telegram, the same is handed to the director, or the telegram is delivered to the telegraph office for fast transmittal, at least forty-eight (48) hours prior to the convening of the meeting. Any director may waive call or notice of any meeting (and any adjournment thereof) at any time before, during which or after it is held. Attendance of a director at any meeting will automatically evidence his waiver of call and notice of such meeting (and any adjournment thereof) unless he is attending the meeting for the express purpose of objecting to the transaction of business thereat because it has not been properly called or noticed. No call or notice of a meeting of the Board of Directors will be necessary if each of them waives the same in writing or by attendance as aforesaid. Any meeting, once properly called and noticed (or as to which call and notice have been waived as aforesaid) and at which a quorum is formed, may be adjourned to another time and place by a majority of those in attendance. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. 4.07 Quorum. A majority of the number of directors then serving shall constitute a quorum for the transaction of business at any meeting or adjourned meeting of the Board of Directors; provided, however, that in no event shall fewer than two directors constitute a quorum unless only one director is then serving. 4.08 Action by Directors. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. 4.09 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors, or of any committee, at which action is taken on any corporate matter will be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he files his written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of such meeting. A right to dissent will not be available to a director who voted in favor of the action. 4.10 Compensation. By resolution of the Board, the directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors, or of any committee, and may be paid a fixed sum for attendance at each such meeting or a stated salary as a director or committee member. No such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. -8- 4.11 Action by Directors Without a Meeting. Any action required to be taken at a meeting of the Board of Directors, or any action that may be taken at a meeting of the Directors or the Executive Committee or other committee thereof, may be taken without a meeting if all directors or committee members consent thereto in writing. Such consent shall have the same effect as a unanimous vote. 4.12 Director Conflicts of Interest. No contract or other transaction between the Corporation and one or more of its directors or any other business entity in which one or more of its directors is a director or officer or is financially interested shall be either void or voidable because of such relationship or interest or because such director or directors are present at a meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such contract or transaction or vote for such authorization, approval or ratification if: (a) Approval by Disinterested Directors. The fact of the relationship or interest is disclosed or known to the Board of Directors or committee thereof and the number of disinterested directors or committee members authorizing, approving or ratifying such contract or transaction is sufficient for such authorization, approval or ratification to be granted; or (b) Approval by Shareholders. The fact of the relationship or interest is disclosed to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction; or (c) Fair and Reasonable. The contract or transaction is fair and reasonable to the Corporation at the time the contract or transaction is authorized, approved or ratified, in the light of circumstances known to those entitled to vote thereon at that time. V. EXECUTIVE AND OTHER COMMITTEES 5.01 Creation. The Board of Directors may, by resolution adopted by an absolute majority of the full Board of Directors, designate two or more of its members as an Executive Committee, and may designate from among its members one or more other committees. The designation of the Executive Committee or any other committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. 5.02 Powers. The Executive Committee, when the Board of Directors is not in session, shall have and may exercise all the authority of the Board of Directors in the management of the business affairs of the Corporation, subject to the limitations as may be included in the Board's resolution and the limitations set forth below. Neither the Executive Committee nor any other committee shall have the authority of the Board of Directors in reference to the following matters: (a) The submission to the shareholders of any action that requires shareholders' authorization or approval. (b) The filling of vacancies on the Board of Directors or on any committee of the Board of Directors. (c) The amendment or repeal of the Bylaws, or the adoption of new Bylaws. -9- (d) The fixing of compensation of directors for serving on the Board or on any committee of the Board of Directors. 5.03 Tenure and Removal. The members of any committee shall hold office until the next annual meeting of the Board of Directors and until their successors are appointed by a new resolution of the Board of Directors. The Board of Directors, with or without cause, may dissolve any committee or remove any member thereof at any time. 5.04 Vacancies. Any vacancies occurring by reason of death, resignation, removal, disqualification or otherwise may be filled only by the full Board of Directors. 5.05 Organization. The members of the Executive Committee or other committee shall elect a chairman of the committee, who shall appoint a secretary of the same, and the committee shall otherwise fix its own rules or procedure which shall not be inconsistent with these Bylaws. The Executive Committee or other committee shall meet where and as provided by its rules. 5.06 Quorum and Voting. A majority of the members of the Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting thereof; provided, however, that the affirmative vote of a majority of the members of the Executive Committee or other committee in all cases shall be necessary for the adoption of any resolution. 5.07 Minutes. The Executive Committee and other committees are to keep regular minutes, of their proceedings and the transactions of their meetings and report the same to the Board of Directors at the next meeting thereof. Such minutes shall be open to the inspection of any director upon application at the office of the Corporation during business hours. VI. BOOKS AND RECORDS 6.01 Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors and committees thereof; and shall keep at its statutory agent's office, or its principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the name and addresses of all shareholders and the number and class of the shares held by each. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time. 6.02 Inspection. Any person who shall have been a holder of record of shares of stock of the Corporation or of a voting trust beneficial interest therefor at least six (6) months immediately preceding his demand or shall be the holder of record of, or the holder of record of a voting trust beneficial interest for, at least five percent (5%) of all the outstanding shares of the Corporation, upon written demand delivered to the Secretary of the Corporation or to the statutory agent for receipt of service of process, stating the purpose thereof, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose its relevant books and records of accounts, minutes, and record of shareholders and to make copies of or extracts therefrom. 6.03 Financial Statements. Upon the written request of any shareholder or holder of a voting trust beneficial interest for shares of the Corporation, the Corporation shall mail to such shareholder or holder of a voting trust beneficial interest its most recent financial statements showing in reasonable detail its assets and liabilities and the results of its operations. -10- VII. OFFICERS 7.01 Officers; Appointment. The officers of the Corporation shall be a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors shall, at its organizational meeting or Unanimous Action in Lieu Thereof, and from time to time thereafter as it deems appropriate, choose a President, a Secretary, and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers, and may appoint, or may delegate to any standing Audit Committee of the Board the power to appoint, a Controller. Any number of offices may be held by the same person, except that the offices of President and Secretary shall not be held by the same person and the offices of Controller and Treasurer or Assistant Treasurer shall not be held by the same person. All officers and agents of the Corporation shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws. 7.02 Removal of Officers. Any officer or agent of the Corporation may be removed by the Board of Directors whenever in its judgment the best interest 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 any such contract rights. 7.03 Salaries. The salaries of the officers shall be as fixed from time to time by the Board of Directors or by any committee of the Board to which such authority may be delegated by the full Board of Directors. No officer shall be prevented from receiving a salary by reason of the fact that he is also a director of the Corporation. 7.04 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors at any time. 7.05 Delegation. The Board of Directors may, by resolution duly recorded in the minutes of the Board of Directors, delegate to the President of the Corporation the authority to fix the salaries and other compensation of any or all officers of the Corporation except himself. 7.06 Chairman of the Board. The Board of Directors may elect a Chairman of the Board to serve as a general executive officer of the Corporation, and, if specifically designated as such by the Board, as the Chief Executive Officer and principal executive officer of the Corporation. If elected, the Chairman will preside at all meetings of the Directors and be vested with such other powers and duties as the Board may from time to time delegate to him. 7.07 President and Vice President. The President will be the Chief Operating Officer of the Corporation and will supervise the business and affairs of the Corporation and the performance, by all of its other officers of their respective duties, subject to the control of the Board of Directors and of its Chairman, if the Chairman has been specifically designated as the Chief Executive Officer of the Corporation (failing which the President will be such Chief Executive Officer and principal executive officer). One or more Vice Presidents may be elected by the Board of Directors, each of whom, in the order designated by the Board, will be vested with all of the powers and charged with all of the duties (including those herein specifically set forth) of the President in the event of his absence or disability. Each Vice President will perform such other duties as may from time to time be delegated or assigned to him by the chief executive officer, the President or the Board of Directors. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the President or any Vice President will be a proper officer to sign on behalf of the Corporation any deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence -11- of indebtedness, application, consent (to service of process or otherwise), agreement, indenture or other instrument of any significant importance to the Corporation. The President shall not also serve as Secretary or Assistant Secretary of the Corporation. 7.08 Secretary and Assistant Secretary. The Secretary will keep the minutes of meetings of the Board of Directors, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, be custodian of the records of the Corporation and of its seal and, in general, perform all duties incident to his office. Except as may otherwise be specifically provided in a resolution of the Board of Directors, the Secretary will be a proper officer to impress the Corporation's seal on any instrument signed by the President or any Vice President, and to attest to the same. There may be one or more Assistant Secretaries, and such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Secretary. No Secretary or Assistant Secretary shall also serve as President of the Corporation. 7.09 Treasurer and Assistant Treasurer. The Treasurer will be the principal financial officer of the Corporation and shall have custody of the Corporate funds and securities, and will cause all money and other valuable effects to be deposited in the name and to the credit of the Corporation in such depositaries, subject to withdrawal in such manner, as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President, and to the Directors (at the regular meetings of the Board or whenever they may require), an account of all his transactions as Treasurer. There may be one or more Assistant Treasurers, Such persons shall perform such functions as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the President, any Vice President, or the Treasurer. No Assistant Treasurer shall have power or authority to collect, account for, or pay over any tax imposed by any federal, state, or city government. No Treasurer or Assistant Treasurer shall also serve as Controller of the Corporation. If no Controller is elected by the Board of Directors or any standing Audit Committee thereof, the Treasurer shall also serve as principal accounting officer of the Corporation. 7.10 Controller. The Controller, if elected by the Board of Directors or any standing Audit Committee thereof, will be the principal accounting officer of the Corporation and shall have charge of the Corporation's books of account, records and auditing, and generally do and perform all such other duties as pertain to such office, and as may be required by the Board of Directors or the President, and the Chief Executive Officer, if he be other than the President. The Controller shall not report to the Treasurer of the Corporation and shall not also serve as Treasurer or Assistant Treasurer. VIII. RESIGNATIONS 8.01 Resignations. Any director, committee member or officer may resign from his office at any time by written notice delivered or addressed to the Corporation at its principal place of business. Any such resignation will be effective upon its receipt by the Corporation unless some later time is therein fixed, and then from that time. The acceptance of a resignation will not be required to make it effective. -12- IX. SEAL 9.01 Form Thereof. The seal of the Corporation will have inscribed thereon the name of the Corporation and the State and year of its incorporation. 9.02 Use. Except to the extent otherwise required by law or these Bylaws, the seal of the Corporation shall not be required to be affixed to any document or act of the Corporation in order for such document or act to be valid and binding upon the Corporation. 9.03 Authorization. In the absence of the Secretary or Assistant Secretary, any officer authorized by the Board of Directors to do so may affix the seal of the Corporation to any instrument requiring a seal. X. STOCK CERTIFICATES 10.00 Form Thereof. Each certificate representing stock of the Corporation will be in such form as may from time to time be approved by the Board of Directors, will be numbered and will exhibit on the face thereof the record-holder's name, the number of shares represented thereby, and such other matters as are required by law to be stated thereon. 10.02 Signatures and Seal Thereon. All certificates issued for shares of the Corporation's capital stock (whether new, re-issued or transferred) will bear the signatures of the President or a Vice President, and of the Secretary or Assistant Secretary, and the impression of the Corporation's corporate seal. The signatures of such officers of the Corporation, and the impression of its corporate seal, may be in facsimile form on any certificates which are manually countersigned by or on behalf of an independent transfer agent or registrar duly appointed by the Corporation for the shares of stock evidenced thereby. If a supply of unissued certificates bearing the facsimile signature of a person remains when that person ceases to hold the Corporation office indicated on such certificates, they may still be countersigned, registered, issued and delivered by the Corporation's transfer agent or registrar thereafter, the same as though such person had continued to hold the office indicated on such certificate. 10.03 Ownership. The Corporation will be entitled to treat the registered owner of any share as the absolute owner thereof and, accordingly, will not be bound to recognize any beneficial, equitable or other claim to, or interest in, such share on the part of any other person, whether or not it has notice thereof, except as may expressly be provided by statute. 10.04 Transfers. Transfers of stock will be made on the books of the Corporation only at the direction of the person or persons named in the certificate thereof, or at the direction of his or their duly authorized attorney-in-fact or duly appointed personal representative, and upon the surrender of such certificate, properly endorsed to the Secretary or the duly authorized transfer agent or agents of the Corporation. 10.05 Lost Certificates. In the event of the loss, theft or destruction of any certificate representing capital stock of this Corporation or of any predecessor corporation, the Corporation may issue (or, in the case of any such stock as to which a transfer agent or registrar have been appointed, may direct such transfer agent or registrar to countersign, register and issue) a certificate in lieu of that alleged to be lost, stolen or destroyed, upon such terms and conditions, including reasonable indemnification of the Corporation, as the Board shall reasonably require, and cause the same to be delivered to the owner of the stock represented thereby, provided that the owner shall have submitted such evidence showing the circumstances of the alleged -13- loss, theft or destruction, and his ownership of the certificate, as the Corporation considers satisfactory, together with any other facts which the Corporation considers pertinent. XI. REPEAL, ALTERATION OR AMENDMENT 11.01 Repeal, Alteration or Amendment. These Bylaws may be repealed, altered, or amended, or substituted bylaws may be adopted at any time, only by resolution duly adopted by a majority of the entire Board of Directors, subject to repeal or change by action of the shareholders. XII. MISCELLANEOUS 12.01 Indemnification. To the full extent permitted by Arizona law, the Corporation shall indemnify and pay the expenses of any person who is or was made, or threatened to be made, a party to an action or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he is or was a director, officer, employee, trustee or agent of or for the Corporation or is or was serving at the request or with the prior approval of the Corporation as a director, officer, employee, trustee or agent of another corporation, trust or enterprise, against any liability asserted against him and incurred by him in any capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of these Bylaws. 12.02 Dividends. Dividends upon the capital stock of the Corporation, if any, subject to the provisions of the Articles of Incorporation, 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 Articles of Incorporation and the Arizona General Corporation Law. 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 Board of 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 purposes as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 12.03 Representation of Shares of Other Corporations. The President or any Vice President of this Corporation is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officers, provided, that the Board of Directors may from time to time confer the foregoing authority upon any other person or persons. 12.04 Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of constructing and definitions contained in the Arizona General Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter; and the singular number includes the plural and the plural number includes the singular; and the term "person" includes a corporation as well as a natural person. 12.05 Fiscal Year. The fiscal year of the Corporation shall be designated and determined by resolution of the Board of Directors from time to time. -14- 12.06 Conduct of Meetings. The Board of Directors may promulgate rules and regulations and establish the rules of procedure applicable at all meetings of shareholders and the Board of Directors or any committee thereof, and the provisions thereof are incorporated herein by reference. Absent a specific rule or regulation, the chairman of any meeting shall determine the order of business at any shareholders' or Board of Directors' meeting and shall have authority, in his discretion, to regulate the conduct of such meetings. * * * * * CERTIFICATION The undersigned Secretary of INTAERO, INC., an Arizona corporation, hereby certifies that the foregoing Bylaws of the Corporation were duly adopted pursuant to the Unanimous Written Consent of the Board of Directors in Lieu of Organizational Meeting dated April 12, 1993. /s/ DONALD TOWNSEND ------------------------- DONALD TOWNSEND -15- EX-3.91 89 file088.txt CERTIFICATE OF INCORPORATION OF SPEEDFEED CERTIFICATE OF INCORPORATION OF SPEEDFEED ACQUISITION CORP. -------------- The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware" or the "General Corporation Law"), hereby certifies that: FIRST: The name of the corporation (hereinafter referred to as the "Corporation") is Speedfeed Acquisition Corp. SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand five hundred (1,500) shares of common stock, par value of $.001 per share. FIFTH: The name and the mailing address of the incorporator is: Jeffrey S. Tullman, Esq. c/o Kane Kessler, P.C. 1350 Avenue of the Americas, 26th floor New York, New York 10019 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any 1 receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of Directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of 2 Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: No director of the Corporation shall have any personal liability to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision eliminating such personal liability of a director shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. TENTH: The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on March 26, 2002. /s/ Jeffrey S. Tullman ---------------------------------- Jeffrey S. Tullman Incorporator 3 EX-3.92 90 file089.txt BYLAWS OF SPEEDFEED ACQUISITION CORP. Ex-3.92 BYLAWS OF SPEEDFEED ACQUISITION CORP. A DELAWARE CORPORATION -------------- ARTICLE I Stockholders SECTION 1. Annual Meetings. The annual meeting of Stockholders for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held at such time and such place within or without the State of Delaware as shall be fixed, from time to time, by the Board of Directors and stated in the notice of the meeting. Each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. SECTION 2. Special Meetings. Special meetings of the stockholders may be called at any time by the Chief Executive Officer, Chairman of the Board, a majority of the Board of Directors or by a majority of the stockholders of record of all shares entitled to vote. Special meetings shall be held on the date and at the time and place either within or without the State of Delaware as specified in the notice thereof. SECTION 3. Notice of Meetings. Except as otherwise expressly required by law or the Certificate of Incorporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in SECTION 5 of this Article I. SECTION 4. Quorum. Subject to the provisions of law in respect of the vote that shall be required for a specific action, the number of shares the holders of which shall be present or represented by proxy at any meeting of stockholders in order to constitute a quorum for the transaction of any business shall be at least thirty three and one-third (33-1/3) percent of the total number of shares issued and outstanding and entitled to vote at such meeting. Where a separate vote by a class or classes is required, thirty three and one-third (33-1/3) of the total number of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. SECTION 5. Adjournment. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares present and entitled to vote at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 6. Organization. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. Voting. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except as may be otherwise prescribed by law, the Certificate of Incorporation or these By-laws. Voting need not be by ballot, unless the Board of Directors in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot and except as otherwise required by Article II of these By-laws. SECTION 8. Stockholders List. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the 2 number of shares held by each, which 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 thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article I or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. Address of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his last known post office address. SECTION 10. Inspectors of Election. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors, his office becomes vacant and be not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Secretary of the Corporation or the Inspectors of Election of the meeting before being voted upon. SECTION 11. Action by Consent. Unless otherwise provided in the Certificate of Incorporation any action required or permitted to be taken at any meeting of 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 all of the outstanding voting stock of the Corporation. In addition, any action required or permitted to be taken at any annual or special meeting of 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. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. 3 ARTICLE II Board of Directors SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. Number, Qualification and Term of Office. The number of directors shall be at least three and not more than six, which number shall be fixed by the Board of Directors from time to time, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. Each director shall hold office for the term for which he is appointed or elected and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Directors need not be elected by ballot, except upon demand of any stockholder. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. SECTION 3. Quorum and Manner of Action. Except as otherwise provided by law or these Bylaws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting, and the act of a majority of the entire Board of Directors shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. In the event that the Board of Directors shall be unable to take action on any matter because of a deadlock, upon the motion of any director the matter shall be submitted to a vote of the stockholders. Any action so approved by a majority vote of the stockholders shall be the action of the Board of Directors, however, any director who voted against the action taken by the stockholders prior to the submission of such matter to the stockholders may, within 10 days following such stockholder vote, dissent in writing to such action to the Secretary of the Corporation, who shall enter such dissent in the minutes of the Corporation. SECTION 4. Place of Meeting, etc. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. SECTION 5. Regular Meetings. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at times and places as said Board shall direct. No notice shall be required for any regular meeting of the Board 4 of Directors but a copy of every resolution fixing or changing the time or place of regular meetings shall be mailed to every director at least three days before the first meeting held in pursuance thereof. SECTION 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, or any one Director. The Secretary or any Assistant Secretary shall give notice of the time and place of each special meeting by mailing a written notice of the same to each director at his last known post office address at least three (3) business days before the meeting or by causing the same to be delivered personally or to be transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each director. In the event the Secretary or Assistant Secretary shall fail to give the notice of a Special Meeting called in accordance with this Section, the person who called such meeting shall be empowered to give notice of such meeting in accordance with the immediately preceding sentence. SECTION 7. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. Organization. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting. SECTION 9. Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. Removal of Directors. Except as otherwise provided by law, any director may be removed for cause, by the affirmative vote of a majority of the Board of Directors. Except as may be otherwise provided by law, cause for removal shall be construed to exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to a right of appeal, or has been adjudged by a court of competent jurisdiction to be liable for gross negligence, or willful misconduct, in the performance of his duty to the Corporation in a matter of substantial importance to the Corporation and such adjudication is no longer subject to a right of appeal. This Section 10 may not be amended or rescinded except by the affirmative vote of the holders of at least a majority of all the outstanding shares of capital stock of the Corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders and only if notice of the proposed alteration or amendment be contained in the notice of the meeting in accordance with the provisions of these Bylaws. 5 SECTION 11. Vacancies. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by 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 of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. Compensation of Directors. Directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to 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 their services and expenses. SECTION 13. Committees. By resolution or resolutions passed by a majority of the whole Board at any meeting of the Board of Directors, the directors may designate one or more committees of the Board of Directors, each committee to consist of two or more directors. To the extent provided in said resolution or resolutions, unless otherwise provided by law, such committee or committees shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. No committee, however, shall have the power to declare dividends or to authorize the issuance of shares of capital stock of the Corporation. Further, the Board of Directors may designate one or more directors as alternate members of a committee who may replace an absent or disqualified member at any meeting. If an alternative member of a committee is not selected by the Board of Directors, and 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 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. A committee may make such rules for the conduct of its business and may appoint such committees and assistants as it shall from time to time deem necessary. A majority of the members of a committee shall constitute a quorum for the transaction of business of such committee. Regular meetings of a committee shall be held at such times as such committee shall from time to time by resolution determine. No notice shall be required for any regular meeting of a committee but a copy of every resolution fixing or changing the time or place of regular meeting shall be mailed to every committee member at least three days before the first meeting held in pursuance thereof. Special meetings of a committee may be called by the Chairman of such committee or the Secretary of such committee, or any two members thereof. The Secretary of the Corporation or the Secretary of such committee shall give notice of the time and place of each special meeting by mail at least two days before such meeting or by telegraph, cable, wireless, telephone or orally at least twenty-four hours before the meeting to each member of such committee. SECTION 14. Participation in Meetings. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 15. Interested Directors or Officers. No contract or transaction between the Corporation and one or more of its directors of officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Officers SECTION 1. Number. The officers of the Corporation shall be a President, a Treasurer and a Secretary and, if deemed necessary, expedient or desirable by the Board of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief Financial Officer, an Executive Vice President and one or more other Vice Presidents. In addition, the Board may elect such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. SECTION 2. Election, Term of Office and Qualification. The officers shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. Subordinate Officers. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers, including one or more Assistant Treasurers and one or more Assistant Secretaries, and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period 7 and upon such terms and conditions, have such authority and perform such duties as in these By-laws provided or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. Removal. Any officer may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for regular selection or appointment to such office. SECTION 7. President. The President shall be the Chief Executive Officer of the Corporation and shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of President and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 8. Vice President. A Vice President may sign with the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these Bylaws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these Bylaws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 10. Assistant Secretary. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall 8 have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the President, the Secretary or the Board of Directors or prescribed by these Bylaws. SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be responsible to the Board of Directors and the President for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the President or prescribed by these Bylaws. SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the President or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the President or prescribed by these Bylaws. SECTION 13. Assistant Treasurer. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the President, the Treasurer or the Board of Directors or prescribed by these Bylaws. SECTION 14. Other Officers. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 15. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors. The Board of Directors may delegate this authority to officers of the Corporation. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 16. Authority of Officers. The officer of the Corporation shall have such duties and authority as set forth in these Bylaws and as shall be determined from time to time by the Board of Directors. 9 ARTICLE IV Shares and their Transfer SECTION 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the President or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation is not required to be affixed thereto. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. Transfer of Stock. Transfer of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof, or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Corporation, or a transfer agent of the Corporation, if any, on surrender of the certificate or certificates for such shares properly endorsed. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such 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 the State of Delaware. SECTION 3. Lost Destroyed and Mutilated Certificates. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, destroyed or mutilated certificate or certificates of stock issued by the Corporation which are not received, including reasonable indemnification to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, 10 each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 5. Fixing Date for Determination of Stockholders of Record. 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, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, 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, and only such stockholders as shall be stockholders of record of the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If no record date is fixed pursuant to this Section, the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. SECTION 6. Beneficial Owners. 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 whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE V General Provisions SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on such date of each year as shall be determined by the Board of Directors of the Corporation. SECTION 2. Waivers of Notice. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these Bylaws to be given, 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. 11 SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 4. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Dover, County of Kent, State of Delaware. SECTION 5. 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. SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or person so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 7. Seal. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 8. Dividends. 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, and may be paid in cash, in property, or in shares of the capital stock. 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 Board of Directors from time to time in its absolute discretion, deems 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 any proper purpose, and the Board of Directors may modify or abolish any such reserve. SECTION 9. Disbursements. 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. 12 ARTICLE VI Indemnification The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VII Amendments These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. 13 EX-3.93 91 file090.txt ARTICLES OF INCORPORATION OF THE O'GARA COMPANY AMENDED AND RESTATED ARTICLES OF INCORPORATION FIRST. The name of the corporation is THE O'GARA COMPANY (the "Corporation"). SECOND. The place in the State of Ohio where the Corporation's principal office is to be located is the City of Fairfield in Butler County, Ohio. THIRD. The purpose for which the Corporation is organized shall be to engage in any lawful act or activity for which corporations may be formed under the Ohio General Corporation Law, Ohio Revised Code Sections, 1701.01 et seq. FOURTH. The aggregate number of shares of stock which the Corporation shall have authority to issue is [Fifteen Million One Hundred Thousand (15,100,000)] shares, which shall be divided into two classes, consisting of: (a) [Fifteen Million (15,000,000)] shares of common stock ("Common Stock") with a par value of $.01 per share. (b) One Hundred Thousand (100,000) shares of preferred stock ("Preferred Stock") with a par value of $.01 per share. PART ONE: COMMON STOCK The shares of Common Stock may be issued at any time or from time to time for such amount of lawful consideration as may be fixed by the Board of Directors. Each holder of Common Stock shall be entitled to one (1) vote for each share of Common Stock held by such holder. PART TWO: PREFERRED STOCK Clause 1. Except as otherwise provided by this Article Fourth or by the amendment or amendments adopted by the Board of Directors providing for the issue of any series of Preferred Stock, the Preferred Stock may be issued at any time or from time to time in any amount, not exceeding in the aggregate, including all shares of any and all series thereof theretofore issued, the One Hundred Thousand (100,000) shares of Preferred Stock hereinabove authorized, as Preferred Stock of one or more series, as hereinafter provided, and for such lawful consideration as shall be fixed from time to time by the Board of Directors. Clause 2. Authority is hereby expressly granted to the Board of Directors from time to time to adopt amendments to these Articles of Incorporation providing for the issue in one more series of any unissued or treasury shares of the Preferred Stock, and providing, to the fullest extent now or hereafter permitted by the laws of the State of Ohio and notwithstanding the provisions of any other Article of these Articles of Incorporation of the Corporation, in respect of the matters set forth in the following subdivisions (i) to (ix), inclusive, as well as any other rights or matters pertaining to such series: (i) The designation and number of shares of such series; (ii) Voting rights (to the fullest extent now or hereafter permitted by the laws of the State of Ohio); (iii) The dividend rate or rates of such series (which may be a variable rate and which may be cumulative); (iv) The dividend payment date or dates of such series; (v) Redemption rights (to the fullest extent now or hereafter permitted by the laws of the State of Ohio), including the price or prices at which shares of such series may be redeemed; (vi) The amount of the sinking fund, if any, to be applied to the purchase or redemption of shares of such series and the manner of its application; (vii) The liquidation price or prices of such series; (viii) Whether or not the shares of such series shall be made convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same class of stock of the Corporation or any other property, and if made so convertible or exchangeable, the conversion price or prices, or the rates of exchange at which such conversation or exchange may be made and the adjustments thereto, if any; and, (ix) Whether or not the issue of any additional shares of such series or any future series in addition to such series shall be subject to any restrictions and, if so, the nature of such restrictions. Any of the voting rights, dividend rate or rates, dividend payment date or dates, redemption rights and price or prices, sinking fund requirements, liquidation price or prices, conversion or exchange rights and restrictions on issuance of shares of any such series of Preferred Stock may, to the fullest extent now or hereafter permitted by the laws of the State of Ohio, be made dependent upon facts ascertainable outside these Articles of Incorporation or outside the amendment or amendments providing for the issue of such Preferred Stock adopted by the Board of Directors pursuant to authority expressly vested in it by this Article Fourth. If the then-applicable laws of the State of Ohio do not permit the Board of Directors to fix, by the 2 amendment creating a series of Preferred Stock, the voting rights of shares of such series, each holder of a share of such series of Preferred Stock shall, except as may be otherwise provided by law, be entitled to one (1) vote for each share of Preferred Stock of such series held by such holder. Clause 3. Before any dividends shall be declared or paid upon or set apart for, or distribution made on, the Common Stock and before any sum shall be paid or set apart for the purchase or redemption of Preferred Stock of any series or for the purchase of the Common Stock, the holders of Preferred Stock of each series shall be entitled to receive accrued dividends declared by the Board of Directors, payable at the rate or rates fixed for such series in accordance with the provisions of this Article Fourth, and no more, from the dividend payment date thereof, or preceding dividend payment date or dates fixed from time to time by the Board of Directors. Clause 4. If upon any dissolution, liquidation or winding up of the Corporation or reduction of its capital stock, the assets so to be distributed among the holders of the Preferred Stock pursuant to the provisions of this Article Fourth or of the amendment or amendments providing for the issue of such Preferred Stock adopted by the Board of Directors pursuant to authority expressly vested in it by this Article Fourth shall be insufficient to permit the payment to such holders of the full preferential amounts aforesaid, then the entire assets of the Corporation shall be distributed ratably among the holders of the Preferred Stock in proportion to the full preferential amounts to which they are respectively entitled as aforesaid. Clause 5. The term "accrued dividends", whenever used herein with respect to the Preferred Stock of any series, shall be deemed to mean that amount which would have been paid as dividends declared on the Preferred Stock of such series to date had full dividends been paid thereon at the rate fixed for such series in accordance with the provisions of this Article Fourth, less in each case the amount of all dividends declared paid upon the shares of such series. FIFTH. The Corporation shall have the right to amend, alter, change or repeal any provision contained in these Articles of Incorporation or any provision that may be added or inserted in these Articles of Incorporation, provided that: (a) Such amendment, alteration, change, repeal, addition or insertion is consistent with law and is accomplished in the manner now or hereafter prescribed by statute or these Articles; and (b) Any provision of these Articles of Incorporation which requires, or the change of which requires, the vote or consent of all or a specific number or percentage of the holders of shares of any class or series shall not be amended, altered changed or repealed by any lesser amount, number or percentage of votes or consents of such 3 class or series. Any rights at any time conferred upon the shareholders of the Corporation are granted subject to the provisions of this Article. SIXTH. Subject to the provisions of Article Fifth hereof, the affirmative vote of shareholders entitled to exercise a majority of the voting power of the Corporation shall be required to amend these Articles of Incorporation, approve mergers and to take any other action which by law must be approved by a specified percentage of the voting power of the Corporation or of all outstanding shares entitled to vote. SEVENTH. No holder of any shares of the Corporation shall have any preemptive rights to subscribe for or to purchase any shares of the Corporation of any class, whether such shares or such class be now or hereafter authorized, or to purchase or subscribe for any security convertible into, or exchangeable for, shares of any class or to which shall be attached or appertained any warrants or rights entitling the holder thereof to purchase or subscribe for shares of any class. EIGHTH. Subject to the provisions of Article Fourth hereof, the Corporation, through its Board of Directors, shall have the right and power to purchase any of its outstanding shares at such price and upon such terms as may be agreed upon between the Corporation and any selling shareholder. NINTH. No shareholder shall have the right to vote cumulatively in the election of directors. TENTH. These Amended and Restated Articles of Incorporation shall take the place of and supersede the existing Articles of Incorporation. 4 EX-3.94 92 file091.txt BYLAWS OF THE O'GARA COMPANY CODE OF REGULATIONS OF THE O'GARA COMPANY ARTICLE I Shareholders Section 1. Annual Meetings. The Annual Meeting of the shareholders of this Corporation, for the election of the Board of Directors and the transaction of such other business as may properly be brought before such meeting, shall be held at the time, date and place designated by the Board of Directors or, if it shall so determine, by the Chairman of the Board or the President. If the Annual Meeting is not held or if Directors are not elected thereat, a Special Meeting may be called and held for that purpose. Section 2. Special Meetings. Special meetings of the shareholders may be held on any business day when called by the Chairman of the Board, the President, a majority of Directors or persons holding fifty percent of all voting power of the Corporation and entitled to vote at such meeting. Section 3. Place of Meetings. Any meeting of shareholders may be held at such place within or without the State of Ohio as may be designated in the Notice of said meeting. Section 4. Notice of Meeting and Waiver of Notice 4.1 Notice. Written notice of the time, place and purposes of any meeting of shareholders shall be given to each shareholder entitled thereto not less than seven (7) days nor more than sixty (60) days before the date fixed for the meeting and as prescribed by law. Such notice shall be given either by personal delivery or mail to the shareholders at their respective addresses as they appear on the records of the Corporation. Notice shall be deemed to have been given on the day mailed. If any meeting is adjourned to another time or place, no notice as to such adjourned meeting need be given other than by announcement at the meeting at which such an adjournment is taken. No business shall be transacted at any such adjourned meeting except as might have been lawfully transacted at the meeting at which such adjournment was taken. Page 1 of 12 4.2 Notice to Joint Owners. All notices with respect to any shares to which persons are entitled by joint or common ownership may be given to that one of such persons who is named first upon the books of this Corporation, and notice so given shall be sufficient notice to all the holders of such shares. 4.3 Waiver. Notice of any meeting may be waived in writing by any shareholder either before or after any meeting, or by attendance at such meeting without protest to its commencement. Section 5. Shareholders Entitled to Notice and to Vote. If a record date shall not be fixed, the record date for the determination of shareholders entitled to notice of or to vote at any meeting of shareholders shall be the date next preceding the day on which notice is given, or the date next preceding the day on which the meeting is held, as the case may be. Section 6. Quorum and Voting. The holders of shares entitling them to exercise a majority of the voting power of the Corporation, present in person or by proxy, shall constitute a quorum for any meeting. The shareholders present in person or by proxy, whether or not a quorum be present, may adjourn the meeting from time to time without notice other than by announcement at the meeting. In any other matter brought before any meeting of shareholders, the affirmative vote of the holders of shares representing a majority of the votes actually cast shall be the act of the shareholders provided, however, that no action required by law, the Articles, or these Regulations to be authorized or taken by the holders of a designated proportion of the shares of the Corporation may be authorized or taken by a lesser proportion. Section 7. Organization of Meetings. 7.1 Presiding Officer. The Chairman of the Board, or in the Chairman of the Board's absence the President, or the person designated by the Board of Directors, shall call all meetings of the shareholders to order and shall act as Chairman thereof; if all are absent, the shareholders shall elect a Chairman. 7.2 Minutes. The Secretary of the Corporation, or in the Secretary's absence, an Assistant Secretary, or, in the absence of both, a person appointed by the Chairman of the meeting, shall act as Secretary of the meeting and shall keep and make a record of the proceedings thereat. Page 2 of 12 Section 8. Voting. Except as provided by statute or in the Articles, every shareholder entitled to vote shall be entitled to cast one vote on each proposal submitted to the meeting for each share held of record on the record date for the determination of the shareholders entitled to vote at the meeting. Section 9. Proxies. A person who is entitled to attend a shareholders' meeting, to vote thereat or to execute consents, waivers and releases, may be represented at such meeting or vote thereat, and execute consents, waivers and releases and exercise any of the person's rights, by proxy or proxies appointed by a writing signed by such person, or by his duly authorized attorney which may be transmitted physically or by facsimile. Section 10. List of Shareholders. At any meeting of shareholders a list of shareholders, alphabetically arranged, showing the number and classes of shares held by each on the record date applicable to such meeting, shall be produced upon the request of any shareholder. ARTICLE II Directors Section 1. General Powers. The authority of this Corporation shall be exercised by or under the direction of the Board of Directors, except where the law, the Articles or these Regulations require action to be authorized or taken by the shareholders. Section 2. Election, Number and Qualification of Directors. 2.1 Election. The Directors shall be elected at the Annual Meeting of the shareholders, or if not so elected, at a special meeting of shareholders. The only candidates who shall be eligible for election at such meeting shall be those who have been nominated by or at the direction of the Board of Directors (which nominations shall be either made at such meeting or disclosed in a proxy statement, or supplement thereto, distributed to shareholders for such meeting) and those who have been nominated at such meeting by a shareholder who has complied with the procedures set forth in this Section 2. A shareholder may make a nomination for the office of director only if such shareholder has first Page 3 of 12 delivered or sent by certified mail, return receipt requested, to the Secretary of the Corporation notice in writing at least five and no more than thirty days prior to such meeting of shareholders, which notice shall set forth or be accompanied by (a) the name and residence of such shareholder; (b) a representation that such shareholder is a holder of record of voting stock of the Corporation and intends to appear in person or by proxy at such meeting to nominate the person or persons specified in the notice; (c) the name and residence of each such nominee; and (d) the consent of such nominee to serve as director if so elected. The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. 2.2 Number. The number of Directors, which shall not be less than the lesser of three or the number of shareholders of record, may be fixed or changed at a meeting of the shareholders called for the purpose of electing Directors at which a quorum is present, by the affirmative vote of the holders of a majority of the shares represented at the meeting and entitled to vote on such proposal. In addition, the number of Directors may be fixed or changed by action of the Directors at any meeting of Directors at which a quorum is present by a majority vote of the Directors present at the meeting. The Directors then in office may fill any Director's office that is created by an increase in the number of Directors. The number of Directors elected shall be deemed to be the number of Directors fixed unless otherwise fixed by resolution adopted at the meeting at which such Directors are elected. 2.3 Qualifications. Directors need not be shareholders of the Corporation. Section 3. Term of Office of Directors. 3.1 Term. Each Director shall hold office until the next Annual Meeting of the shareholders and until a Director's successor has been elected or until a Director's earlier resignation, removal from office or death. Directors shall be subject to removal as provided by statute or by other lawful procedures and nothing herein shall be construed to prevent the removal of any or all Directors in accordance therewith. 3.2 Resignation. A resignation from the Board of Directors shall be deemed to take effect immediately upon its being received by any incumbent corporate officer other than an officer who is also the resigning Director, unless some other time is specified therein. 3.3 Vacancy. In the event of any vacancy in the Board of Directors for any reason, the remaining Directors, though less than a majority of the whole Board, may fill any such vacancy for the unexpired term. Page 4 of 12 Section 4. Meetings of Directors. 4.1 Regular Meetings. A regular meeting of the Board of Directors shall be held immediately following the adjournment of the meeting of shareholders at which Directors are elected. The holding of such shareholders' meeting shall constitute notice of such Directors' meeting and such meeting shall be held without further notice. Other regular meetings of the Board of Directors shall be held at such times and places as may be fixed by the Directors. 4.2 Special Meetings. Special meetings of the Board of Directors may be held at any time upon call of the Chairman of the Board, the President or any two Directors. 4.3 Place of Meeting. Any meeting of Directors may be held at such place within or without the State of Ohio as may be designated in the notice of said meeting. 4.4 Notice of Meeting and Waiver of Notice. Notice of the time and place of any regular or special meeting of the Board of Directors shall be given to each Director by personal delivery, telephone, facsimile transmission or mail at least forty-eight hours before the meeting, which notice need not specify the purpose of the meeting. Section 5. Quorum and Voting. At any meeting of Directors, not less than one-half of the whole authorized number of Directors is necessary to constitute a quorum for such meeting, except that a majority of the remaining Directors in office shall constitute a quorum for filling a vacancy in the Board. At any meeting at which a quorum is present, all acts, questions and business which may come before the meeting shall be determined by a majority of votes cast by the Directors present at such meeting, unless the vote of a greater number is required by the Articles or Regulations. Section 6. Committees. 6.1 Appointment. The Board of Directors may from time to time appoint certain of its members to act as a committee or committees in the intervals between meetings of the Board and may delegate to such committee or committees power to be exercised under the control and direction of the Board. Each committee shall be composed of at least three directors unless a lesser number is allowed by law. Each such committee and each member thereof shall serve at the pleasure of the Board. 6.2 Executive Committee. In particular, the Board of Directors may create from its membership and define the powers and duties of an Executive Page 5 of 12 Committee. During the intervals between meetings of the Board of Directors, the Executive Committee shall possess and may exercise all of the powers of the Board of Directors in the management and control and the business of the Corporation to the extent permitted by law. All action taken by the Executive Committee shall be reported to the Board of Directors at its first meeting thereafter. 6.3 Committee Action. Unless otherwise provided by the Board of Directors, a majority of the members of any committee appointed by the Board of Directors pursuant to this Section shall constitute a quorum at any meeting thereof and the act of a majority of the members present at a meeting at which a quorum is present shall be the act of such committee. Any such committee shall prescribe its own rules for calling and holding meetings and its method of procedure, subject to any rules prescribed by the Board of Directors, and shall keep a written record of all action taken by it. Section 7. Action of Directors Without a Meeting. Any action which may be taken at a meeting of Directors or any committee thereof may be taken without a meeting if authorized by a writing or writings signed by all the Directors or all of the members of the particular committee, which writing or writings shall be filed or entered upon the records of the Corporation. Section 8. Compensation of Directors. The Board of Directors may allow compensation to directors for performance of their duties and for attendance at meetings or for any special services, may allow compensation to members of any committee, and may reimburse any Director for the Director's expenses in connection with attending any Board or committee meeting. Section 9. Relationship with Corporation. Directors shall not be barred from providing professional or other services to the Corporation. No contract, action or transaction shall be void or voidable with respect to the Corporation for the reason that it is between or affects the Corporation and one or more of its Directors, or between or affects the Corporation and any other person in which one or more of its Directors are directors, trustees or officers or have a financial or personal interest, or for the reason that one or more interested Directors participate in or vote at the meeting of the Directors or committee thereof that authorizes such contract, action or transaction, if in any such case any of the following apply: (i) the material facts as to the Director's relationship or interest and as to the contract, action or transaction are disclosed or are known to the Page 6 of 12 Directors or the committee and the Directors or committee, in good faith, reasonably justified by such facts, authorize the contract, action or transaction by the affirmative vote of a majority of the disinterested Directors, even though the disinterested Directors constitute less than a quorum; (ii) the material facts as to the Director's relationship or interest and as to the contract, action or transaction are disclosed or are known to the shareholders entitled to vote thereon and the contract, action or transaction is specifically approved at a meeting of the shareholders held for such purpose by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the Corporation held by persons not interested in the contract, action or transaction; or (iii) the contract, action or transaction is fair as to the Corporation as of the time it is authorized or approved by the Directors, a committee thereof or the shareholders. ARTICLE III Officers Section 1. General Provisions. The Board of Directors shall elect a Chairman of the Board, a President, a Secretary, a Treasurer, one or more Vice Presidents, and such other officers and assistant officers as the Board may from time-to-time deem necessary. The Chairman of the Board, if any, shall be a Director, but none of the other officers needs to be a Director. Any two or more offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required to be executed, acknowledged or verified by two or more officers. Section 2. Powers and Duties. All officers, as between themselves and the Corporation, shall respectively have such authority and perform such duties as are customarily incident to their respective offices, and as may be specified from time to time by the Board of Directors regardless of whether such authority and duties are customarily incident to such office. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, any or all of the powers or duties of such officer may be delegated to any other officer or to any Director. The Board of Directors may from time to time delegate to any officer authority to appoint and remove subordinate officers and to prescribe their authority and duties. Page 7 of 12 Section 3. Term of Office and Removal. 3.1 Term. Each officer of the Corporation shall hold office at the pleasure of the Board of Directors and, unless sooner removed by the Board of Directors, until the meeting of the Board of Directors following the date of election of Directors and until his or her successor is elected and qualified. 3.2 Removal. The Board of Directors may remove any officer at any time with or without cause by the affirmative vote of a majority of Directors in office. Section 4. Compensation of Officers. The Directors shall establish the compensation of officers and employees or may, to the extent not prohibited by law, delegate such authority to one or more officers or Directors as they determine. Page 8 of 12 ARTICLE IV Indemnification Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) in any actual or threatened action, suit, or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a "proceeding"), by reason of the fact that such person is or was a director or officer of the Corporation or that, being or having been such a director or officer of the Corporation, such person is or was serving at the request of an executive officer of the Corporation as a director, officer, partner, employee, or agent of another corporation or of a partnership, joint venture, trust, limited liability company, or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as such a director, officer, partner, employee, or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the General Corporation Law of Ohio, 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 permitted prior thereto), or by other applicable law as then in effect, against all expense, liability, and loss (including, without limitation, attorneys' fees, costs of investigation, judgments, fines, excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974 ("ERISA") or other federal or state acts) actually incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the indemnitee's heirs, executors, and administrators. Except as provided in Section 2 with respect to proceedings seeking to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized or ratified by the Board of Directors of the Corporation. The right to indemnification conferred in this Section 1 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 (hereinafter an "advancement of expenses"). An advancement of expenses incurred by an indemnitee in such person's capacity as a director, officer or employee (and not in any other capacity in which service was or is rendered by such indemnitee 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 indemnitee to repay all amounts so advanced if it is proved Page 9 of 12 by clear and convincing evidence in a court of competent jurisdiction that such indemnitee's omission or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Corporation or undertaken with reckless disregard for the best interests of the Corporation. An advancement of expenses shall not be made if the Corporation's Board of Directors makes a good faith determination that such payment would violate applicable law or public policy. Section 2. Right of Indemnitee to Bring Suit. If a claim under Section 1 is not paid in full by the Corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. The indemnitee shall be presumed to be entitled to indemnification under this Article IV upon submission of a written claim (and, in an action brought to enforce a claim for an advancement of expenses, where the required undertaking has been tendered to the Corporation), and thereafter the Corporation shall have the burden of proof to overcome the presumption that the indemnitee is not so entitled. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its shareholders) that the indemnitee is not entitled to indemnification shall be a defense to the suit or create a presumption that the indemnitee is not so entitled. Section 3. Nonexclusivity and Survival of Rights. The rights to indemnification and to the advancement of expenses conferred in this Article IV shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provisions of the Articles of Incorporation, Code of Regulations, agreement, vote of shareholders or disinterested directors, or otherwise. Notwithstanding any amendment to or repeal of this Article IV, or of any of the procedures established by the Board of Directors pursuant to Section 7, any indemnitee shall be entitled to indemnification in accordance with the provisions hereof and thereof with respect to any acts or omissions of such indemnitee occurring prior to such amendment or repeal. Page 10 of 12 Without limiting the generality of the foregoing paragraph, the rights to indemnification and to the advancement of expenses conferred in this Article IV shall, notwithstanding any amendment to or repeal of this Article IV, inure to the benefit of any person who otherwise may be entitled to be indemnified pursuant to this Article IV (or the estate or personal representative of such person) for a period of six years after the date such person's service to or in behalf of the Corporation shall have terminated or for such longer period as may be required in the event of a lengthening in the applicable statute of limitations. Section 4. Insurance, Contracts, and Funding. 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, 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 Ohio. The Corporation may enter into contracts with any indemnitee in furtherance of the provisions of this Article IV and may create a trust fund, grant a security interest, or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article IV. Section 5. Persons Serving Other Entities. Any person who is or was a director, officer, or employee of the Corporation who is or was serving (i) as a director or officer of another corporation of which a majority of the shares entitled to vote in the election of its directors is held by the Corporation or a wholly-owned subsidiary of the Corporation, or (ii) in an executive or management capacity in a partnership joint venture, trust, limited liability company or other enterprise of which the Corporation or a wholly-owned subsidiary of the Corporation is a general partner or member or has a majority ownership shall be deemed to be so serving at the request of an executive officer of the Corporation and entitled to indemnification and advancement of expenses under Section 1. Page 11 of 12 Section 6. Indemnification of Employees and Agents of the Corporation. The Corporation may, by action of its Board of Directors, authorize one or more executive officers to grant rights to advancement of expenses to employees or agents of the Corporation on such terms and conditions no less stringent than provided in Section 1 hereof as such officer or officers deem appropriate under the circumstances. The Corporation may, by action of its Board of Directors, grant rights to indemnification and advancement of expenses to employees or agents or groups of employees or agents of the Corporation with the same scope and effect as the provisions of this Article IV with respect to the indemnification and advancement of expenses of directors and officers of the Corporation; provided, however, that an undertaking shall be made by an employee or agent only if required by the Board of Directors. Section 7. Procedures for the Submission of Claims. The Board of Directors may establish reasonable procedures for the submission of claims for indemnification pursuant to this Article IV, determination of the entitlement of any person thereto, and review of any such determination. Such procedure, shall be set forth in an appendix to these Code of Regulations and shall be deemed for all purposes to be a part hereof. ARTICLE V Amendments This Code of Regulations may be amended by the affirmative vote or the written consent of the shareholders entitled to exercise a majority of the voting power on such proposal. If an amendment is adopted by written consent the Secretary shall mail a copy of such amendment to each shareholder who would be entitled to vote thereon and did not participate in the adoption thereof. This Code of Regulations may also be amended by the affirmative vote of a majority of the Directors to the extent permitted by Ohio law at the time of such amendment. Page 12 of 12 EX-4.2 93 file092.txt FIRST SUPPLEMENTAL INDENTURE FIRST SUPPLEMENTAL INDENTURE FIRST SUPPLEMENTAL INDENTURE, dated as of September 30, 2003 (the "SUPPLEMENTAL INDENTURE"), among ARMOR HOLDINGS, INC., a Delaware corporation (the "COMPANY"), the subsidiary guarantors listed as signatories to the Indenture as defined below (collectively, the "INITIAL SUBSIDIARY GUARANTORS"), the Discontinued Domestic Subsidiaries as defined in the Indenture and listed in Schedule I hereto (collectively, the "NEW SUBSIDIARY GUARANTORS") and Wachovia Bank, National Association, a national banking association, as trustee (the "TRUSTEE"). WITNESSETH WHEREAS, the Company has issued its 8 1/4% Senior Subordinated Notes due 2013 (the "NOTES") in the aggregate principal amount of $150,000,000 under and pursuant to the Indenture dated August 12, 2003, among the Company, the Initial Subsidiary Guarantors and the Trustee (the "INDENTURE"); WHEREAS, Section 4.22 of the Indenture provides that the Company shall cause each Discontinued Domestic Subsidiary to become a Subsidiary Guarantor (as defined in the Indenture) by execution and delivery to the Trustee of a supplemental indenture no later than September 30, 2003 (except to the extent such Discontinued Domestic Subsidiary is sold by the Company prior to such date); WHEREAS, none of the Discontinued Domestic Subsidiaries have been sold by the Company on or prior to the date of this Supplemental Indenture; WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture; WHEREAS, all things necessary for the execution of this Supplemental Indenture and to make this Supplemental Indenture a valid and binding agreement of the parties hereto have been done; NOW, THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged by the Company, the Initial Subsidiary Guarantors, the New Subsidiary Guarantors and the Trustee, such parties hereby agree for the benefit of each other and the equal and ratable benefit of the Holders of the Notes as follows: Section 1. Definitions. Unless otherwise stated or unless the context shall otherwise require, all capitalized terms used in this Supplemental Indenture shall be given the same meanings as such terms are defined in the Indenture. Section 2. Subsidiary Guarantee. (a) By execution and delivery of this Supplemental Indenture, each New Subsidiary Guarantor hereby agrees to become a Subsidiary Guarantor pursuant to the Indenture and to assume all obligations of the Subsidiary Guarantors under the Indenture (including without limitation, the Subsidiary Guarantee as defined in the Indenture), the Notes and the Registration Rights Agreement, in each case, in accordance with the terms thereof. (b) Each New Subsidiary Guarantor hereby agrees that its execution and delivery of this Supplemental Indenture shall evidence its Subsidiary Guarantee as set forth in Section 11.01 of the Indenture without the need for any further notation on the Notes and the delivery and authentication of any Note by the Trustee under the Indenture, including any Note authenticated and delivered on or prior to the date of this Supplemental Indenture, shall constitute due delivery of the Subsidiary Guarantee set forth in this Supplemental Indenture on behalf of such Subsidiary Guarantor. Each of the Initial Subsidiary Guarantors hereby agrees that its Subsidiary Guarantee set forth in Section 11.01 of the Indenture shall remain in full force and effect. Section 3. Effectiveness and Validity. (a) This Supplemental Indenture shall become effective on the date first written above. The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed hereby. Following the effectiveness hereof, the Indenture shall be deemed supplemented in accordance herewith, and this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be entitled to the benefit thereof and hereof and be bound thereby and hereby. (b) If an Officer of a Subsidiary Guarantor whose signature is on the Indenture or this Supplemental Indenture no longer holds that office at the time the Trustee authenticates such Notes or at any time thereafter, such Subsidiary Guarantor's Subsidiary Guarantee shall be valid nevertheless. Section 4. Solvency; No Fraudulent Transfer or Conveyance. Each New Subsidiary Guarantor, for the benefit of each Holder, confirms that it is a solvent corporation and that the granting of the Guarantee is not made with the purpose of defrauding any of its current creditors. The Company, each Initial Subsidiary Guarantor and each New Subsidiary Guarantor confirms its intention that the Subsidiary Guarantee given by each New Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. Section 5. No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator or stockholder of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company or the Subsidiary Guarantors under the Notes, the Indenture, this Supplemental Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. The acceptance of a Note by each Holder of Notes is deemed to be a waiver and release of all such liability. This waiver and release are part of the consideration for issuance of the Subsidiary Guarantee set forth in and evidenced by this Supplemental Indenture. Section 6. Governing Law. THIS INDENTURE AND THE NOTES AND THE SUBSDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 7. Successors. All agreements of the Company and the Subsidiary Guarantors in the Indenture, this Supplemental Indenture and the Notes shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor. Section 8. Duplicate Originals. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same instrument. Section 9. Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Indenture, this Supplemental Indenture and the Notes shall not in any way be affected or impaired thereby, and a Holder shall have no claim therefor against any party hereto. Section 10. Headings. The headings of the sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof. Section 10. Trustee. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and the Subsidiary Guarantors and not of the Trustee. SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above. ARMOR HOLDINGS, INC., a Delaware corporation By: /s/ Robert R. Schiller -------------------------------------- Name: Robert R. Schiller Title: Chief Operating Officer and Chief Financial Officer WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Stephanie Moore ----------------------------------- Name: Stephanie Moore Title: Trust Officer INITIAL SUBSIDIARY GUARANTORS 911EP, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary AHI PROPERTIES I, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR BRANDS, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS FORENSICS, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS GP, LLC, a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS LP, LLC, a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS MOBILE SECURITY, L.L.C., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PAYROLL SERVICES, LLC, a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PRODUCTS, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR SAFETY PRODUCTS COMPANY, a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary B-SQUARE, INC., a Texas corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary BREAK-FREE ARMOR CORP., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary BREAK-FREE, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary CASCO INTERNATIONAL, INC., a New Hampshire corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary DEFENSE TECHNOLOGY CORPORATION OF AMERICA, a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary INDENTICATOR, INC., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK LIFETIME PRODUCTS, INC. (DE), a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK LIFETIME PRODUCTS, INC. (NH), a New Hampshire corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK POLICE TRAINING COUNCIL, INC., a New Hampshire corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NAP PROPERTIES, LTD., a California limited partnership By: NAP PROPERTY MANAGERS LLC, --------------------------- its General Partner By: ARMOR HOLDINGS PROPERTIES, INC., its Managing Member By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NAP PROPERTY MANAGERS LLC, a California company By: ARMOR HOLDINGS PROPERTIES, INC., its Managing Member By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C. a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary PRO-TECH ARMORED PRODUCTS OF MASSACHUSETTS, INC., a Massachusetts corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary RAMTECH DEVELOPMENT CORP., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SAFARI LAND LTD, INC., a California corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SAFARILAND GOVERNMENT SALES, INC., a California corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SPEEDFEED ACQUISITION CORP., a Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary THE O'GARA COMPANY, an Ohio corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NEW SUBSIDIARY GUARANTORS ARMORGROUP NORTH AMERICA, INC., A Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMORGROUP SERVICES, LLC, A Delaware limited liability company By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary CDR INTERNATIONAL, INC., A Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary U.S. DEFENSE SYSTEMS, LLC, A Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary O'GARA SECURITY ASSOCIATES, INC., an Ohio corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ITI LIMITED PARTERNSHIP, a Texas limited partnership By: International Training, Inc., its General Partner By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary INTERNATIONAL TRAINING, INC., A Virginia corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NETWORK AUDIT SYSTEMS, INC., A Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NEW TECHNOLOGIES ARMOR, INC., A Delaware corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary THE PARVUS COMPANY, A Maryland corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary PARVUS CRISIS MANAGEMENT CORPORATION, A Maryland corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary THE PARVUS INTERNATIONAL INFORMATION COMPANY, A Maryland corporation By: /s/ Phil Baratelli --------------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SCHEDULE I NEW SUBSIDIARY GUARANTORS - ------------------------- ArmorGroup North America, Inc. ArmorGroup Services, LLC CDR International, Inc. U.S. Defense Systems, LLC O'Gara Security Associates, Inc. ITI Limited Partnership International Training, Inc. Network Audit Systems, Inc. New Technologies Armor, Inc. The Parvus Company Parvus Crisis Management Corporation The Parvus International Information Company EX-4.3 94 file093.txt SECOND SUPPLEMENT INDENTURE SECOND SUPPLEMENTAL INDENTURE SECOND SUPPLEMENTAL INDENTURE, dated as of December 9, 2003 (the "SECOND SUPPLEMENTAL INDENTURE"), among Armor Holdings, Inc., a Delaware corporation (the "COMPANY"), the subsidiary guarantors listed as signatories to the Indenture as defined below (collectively, the "INITIAL SUBSIDIARY GUARANTORS"), the Discontinued Domestic Subsidiaries as defined in the Indenture (collectively, the "NEW SUBSIDIARY GUARANTORS"), AHI Bulletproof Acquisition Corp., an Arizona Corporation ("AHI BULLETPROOF Arizona"), AHI Bulletproof Acquisition Corp., a Delaware corporation ("AHI BULLETPROOF DELAWARE," together with AHI Bulletproof Arizona, the "NEW ARMOR SUBSIDIARY GUARANTORS"), the subsidiary guarantors listed on Exhibit A attached hereto (the "SIMULA GUARANTORS") and Wachovia Bank, National Association, a national banking association, as trustee (the "TRUSTEE"). WITNESSETH WHEREAS, the Company has issued its 8 1/4% Senior Subordinated Notes due 2013 (the "NOTES") in the aggregate principal amount of $150,000,000 under and pursuant to the Indenture dated August 12, 2003, among the Company, the Initial Subsidiary Guarantors and the Trustee (the "INDENTURE"); WHEREAS, pursuant to the terms of the Indenture, the Company, the Initial Subsidiary Guarantors and the New Subsidiary Guarantors entered into the First Supplemental Indenture, dated as of September 30, 2003 (the "First Supplemental Indenture"), pursuant to which each of the Discontinued Domestic Subsidiaries became a Subsidiary Guarantor under the terms of the Indenture; WHEREAS, subsequent to the execution of the First Supplemental Indenture and pursuant to Section 4.20(C) of the Indenture, the Company and the Trustee entered into a Release dated as of November 26, 2003 under which certain of the Discontinued Domestic Subsidiaries were released and discharged from their Subsidiary Guarantees and their obligations under the Indenture and the Registration Rights Agreement; WHEREAS, pursuant to Section 4.22 of the Indenture, the Company is required to cause the New Armor Subsidiary Guarantors to execute and deliver to the Trustee this Second Supplemental Indenture pursuant to which each of the New Armor Subsidiary Guarantors shall become bound by the provisions of the Indenture and the Registration Rights Agreement as a Subsidiary Guarantor; WHEREAS, pursuant to Sections 4.09 and Section 4.22 of the Indenture, the Company is required to cause the Simula Guarantors to execute and deliver to the Trustee this Second Supplemental Indenture pursuant to which each of the Simula Guarantors shall become bound by the provisions of the Indenture and the Registration Rights Agreement as a Subsidiary Guarantor; WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Second Supplemental Indenture; WHEREAS, all things necessary for the execution of this Second Supplemental Indenture and to make this Second Supplemental Indenture a valid and binding agreement of the parties hereto have been done. NOW, THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged by the Company, the Initial Subsidiary Guarantors, the New Subsidiary Guarantors, the New Armor Subsidiary Guarantors, the Simula Guarantors and the Trustee, such parties hereby agree for the benefit of each other and the equal and ratable benefit of the Holders of the Notes as follows: Section 1. Definitions. Unless otherwise stated or unless the context shall otherwise require, all capitalized terms used in this Second Supplemental Indenture shall be given the same meanings as such terms are defined in the Indenture or the First Supplemental Indenture, as the case may be. Section 2. Subsidiary Guarantee. (a) By execution and delivery of this Second Supplemental Indenture, each of the New Armor Subsidiary Guarantors and the Simula Guarantors hereby agrees to become a Subsidiary Guarantor pursuant to the Indenture and to assume all obligations of the Subsidiary Guarantors under the Indenture (including without limitation, the Subsidiary Guarantee as defined in the Indenture), the Notes and the Registration Rights Agreement, in each case, in accordance with the terms thereof. (b) Each of the New Armor Subsidiary Guarantors and the Simula Guarantors hereby agrees that its execution and delivery of this Second Supplemental Indenture shall evidence its Subsidiary Guarantee as set forth in Section 11.01 of the Indenture without the need for any further notation on the Notes and the delivery and authentication of any Note by the Trustee under the Indenture, including any Note authenticated and delivered on or prior to the date of this Second Supplemental Indenture, shall constitute due delivery of the Subsidiary Guarantee set forth in this Second Supplemental Indenture on behalf of the New Armor Subsidiary Guarantors and the Simula Guarantors. Each of the Initial Subsidiary Guarantors and the New Subsidiary Guarantors hereby agrees that its Subsidiary Guarantee set forth in Section 11.01 of the Indenture shall remain in full force and effect. Section 3. Effectiveness and Validity. (a) This Second Supplemental Indenture shall become effective on the date first written above. The Indenture, as supplemented by the First Supplemental Indenture and this Second Supplemental Indenture, are in all respects ratified and confirmed hereby. Following the effectiveness hereof, the Indenture and the First Supplemental Indenture shall be deemed supplemented in accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture as supplemented by the First Supplemental Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture as supplemented by the First Supplemental Indenture shall be entitled to the benefit thereof and hereof and be bound thereby and hereby. 2 (b) If an Officer of a Subsidiary Guarantor whose signature is on the Indenture, the First Supplemental Indenture or this Second Supplemental Indenture no longer holds that office at the time the Trustee authenticates such Notes or at any time thereafter, such Subsidiary Guarantor's Subsidiary Guarantee shall be valid nevertheless. Section 4. Solvency; No Fraudulent Transfer or Conveyance. Each of the New Armor Subsidiary Guarantors and the Simula Guarantors, for the benefit of each Holder, confirms that it is a solvent corporation and that the granting of the Subsidiary Guarantee is not made with the purpose of defrauding any of its current creditors. Each of the Company, the Initial Subsidiary Guarantors, the New Subsidiary Guarantors, the New Armor Subsidiary Guarantors and the Simula Guarantors confirms that the Subsidiary Guarantee given by each of the New Armor Subsidiary Guarantors and the Simula Guarantors does not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. Section 5. No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator or stockholder of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company or the Subsidiary Guarantors under the Notes, the Indenture. The First Supplemental Indenture, this Second Supplemental Indenture, the Subsidiary Guarantees, the Registration Rights Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation. The acceptance of a Note by each Holder of Notes is deemed to be a waiver and release of all such liability. This waiver and release are part of the consideration for issuance of the Subsidiary Guarantee set forth in and evidenced by this Second Supplemental Indenture. Section 6. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES AND THE SUBSDIARY GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES. Section 7. Successors. All agreements of the Company and the Subsidiary Guarantors in the Indenture, the First Supplemental Indenture, this Second Supplemental Indenture and the Notes shall bind its successor. All agreements of the Trustee in this Second Supplemental Indenture shall bind its successor. Section 8. Duplicate Originals. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same instrument. 3 Section 9. Severability. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Indenture, the First Supplemental Indenture, this Second Supplemental Indenture and the Notes shall not in any way be affected or impaired thereby, and a Holder shall have no claim therefor against any party hereto. Section 10. Headings. The headings of the sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Second Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof. Section 11. Trustee. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and the Subsidiary Guarantors and not of the Trustee. 4 SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first written above. ARMOR HOLDINGS, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------ Name: Phil Baratelli Title: Controller and Treasurer WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Stephanie Moore ------------------------------------- Name: Stephanie Moore Title: Trust Officer 911EP, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary AHI PROPERTIES I, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR BRANDS, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS FORENSICS, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS GP, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS LP, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS MOBILE SECURITY, L.L.C., a Delaware limited liability company By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PAYROLL SERVICES, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PRODUCTS, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR SAFETY PRODUCTS COMPANY, a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary B-SQUARE, INC., a Texas corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary BREAK-FREE ARMOR CORP., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary BREAK-FREE, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary CASCO INTERNATIONAL, INC., a New Hampshire corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary DEFENSE TECHNOLOGY CORPORATION OF AMERICA, a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary IDENTICATOR, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK LIFETIME PRODUCTS, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK LIFETIME PRODUCTS, INC., a New Hampshire corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK POLICE TRAINING COUNCIL, INC., a New Hampshire corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NAP PROPERTIES, LTD., a California limited partnership By: NAP PROPERTY MANAGERS LLC, its General Partner By: ARMOR HOLDINGS PROPERTIES, INC., its Managing Member By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NAP PROPERTY MANAGERS LLC, a California company By: ARMOR HOLDINGS PROPERTIES, INC., its Managing Member By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C., a Delaware limited liability company By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary PRO-TECH ARMORED PRODUCTS OF MASSACHUSETTS, INC., a Massachusetts corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary RAMTECH DEVELOPMENT CORP., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SAFARI LAND LTD, INC., a California corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SAFARILAND GOVERNMENT SALES, INC., a California corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SPEEDFEED ACQUISITION CORP., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary THE O'GARA COMPANY, an Ohio corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMORGROUP SERVICES, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary CDR INTERNATIONAL, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NETWORK AUDIT SYSTEMS, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NEW TECHNOLOGIES ARMOR, INC., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary AHI BULLETPROOF ACQUISITION CORP., a Delaware corporation By: /s/ Phil Baratelli ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA, INC., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA AEROSPACE & DEFENSE GROUP, INC., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA POLYMERS SYSTEMS, INC., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA TECHNOLOGIES, INC., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary AI CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA COMPOSITES CORPORATION, a Delaware corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary CCEC CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SAI CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary ASD CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ------------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary EXHIBIT A Simula, Inc., an Arizona corporation Simula Aerospace & Defense Group, Inc., an Arizona corporation International Center for Safety Education, Inc., an Arizona corporation Simula Polymers Systems, Inc., an Arizona corporation Simula Technologies, Inc., an Arizona corporation AI Capital Corp., an Arizona corporation Simula Composite Corporation, a Delaware corporation Simula Transportation Equipment Corporation, an Arizona corporation CCEC Capital Corp., an Arizona corporation SAI Capital Corp., an Arizona corporation ASD Capital Corp., an Arizona corporation EX-4.4 95 file094.txt THIRD SUPPLEMENTAL INDENTURE THIRD SUPPLEMENTAL INDENTURE THIRD SUPPLEMENTAL INDENTURE, dated as of December 24, 2003 (the "THIRD SUPPLEMENTAL INDENTURE"), among Armor Holdings, Inc., a Delaware corporation (the "COMPANY"), the subsidiary guarantors listed as signatories to the Indenture as defined below (collectively, the "INITIAL SUBSIDIARY GUARANTORS"), the subsidiary guarantors listed on Exhibit A attached hereto (the "NEW SUBSIDIARY GUARANTORS"), Hatch Imports, Inc., a California corporation ("HATCH"), and Wachovia Bank, National Association, a national banking association, as trustee (the "TRUSTEE"). WITNESSETH WHEREAS, the Company has issued its 8 1/4% Senior Subordinated Notes due 2013 (the "NOTES") in the aggregate principal amount of $150,000,000 under and pursuant to the Indenture dated August 12, 2003, among the Company, the Initial Subsidiary Guarantors and the Trustee (the "INDENTURE"); WHEREAS, pursuant to the terms of the Indenture, the Indenture has been supplemented by the First Supplemental Indenture, dated as of September 30, 2003 (the "FIRST SUPPLEMENTAL INDENTURE"), among the Company, the Initial Subsidiary Guarantors, the Discontinued Domestic Subsidiaries listed in Schedule I to the First Supplemental Indenture and the Trustee, and the Second Supplemental Indenture, dated as of December 9, 2003 (the "SECOND SUPPLEMENTAL INDENTURE"), among the Company, the Initial Subsidiary Guarantors, certain of the Discontinued Domestic Subsidiaries, AHI Bulletproof Acquisition Corp., an Arizona corporation, AHI Bulletproof Acquisition Corp., a Delaware corporation, the subsidiary guarantors listed on Exhibit A attached thereto and the Trustee, pursuant to which certain subsidiaries of the Company became Subsidiary Guarantors; WHEREAS, pursuant to Section 4.20(C) of the Indenture, the Company and the Trustee entered into a Release dated as of November 26, 2003 under which certain of the Discontinued Domestic Subsidiaries were released and discharged from their Subsidiary Guarantees and their obligations under the Indenture and the Registration Rights Agreement; WHEREAS, pursuant to Section 4.22 of the Indenture, the Company is required to cause Hatch to execute and deliver to the Trustee this Third Supplemental Indenture pursuant to which Hatch shall become bound by the provisions of the Indenture and the Registration Rights Agreement as a Subsidiary Guarantor; WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Third Supplemental Indenture; WHEREAS, all things necessary for the execution of this Third Supplemental Indenture and to make this Third Supplemental Indenture a valid and binding agreement of the parties hereto have been done. NOW, THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged by the Company, the Initial Subsidiary Guarantors, the New Subsidiary Guarantors, Hatch and the Trustee, such parties hereby agree for the benefit of each other and the equal and ratable benefit of the Holders of the Notes as follows: Section 1. Definitions. Unless otherwise stated or unless the context shall otherwise require, all capitalized terms used in this Third Supplemental Indenture shall be given the same meanings as such terms are defined in the Indenture, the First Supplemental Indenture or the Second Supplemental Indenture, as the case may be. Section 2. Subsidiary Guarantee. (a) By execution and delivery of this Third Supplemental Indenture, Hatch hereby agrees to become a Subsidiary Guarantor pursuant to the Indenture and to assume all obligations of the Subsidiary Guarantors under the Indenture (including without limitation, the Subsidiary Guarantee as defined in the Indenture), the Notes and the Registration Rights Agreement, in each case, in accordance with the terms thereof. (b) Hatch hereby agrees that its execution and delivery of this Third Supplemental Indenture shall evidence its Subsidiary Guarantee as set forth in Section 11.01 of the Indenture without the need for any further notation on the Notes and the delivery and authentication of any Note by the Trustee under the Indenture, including any Note authenticated and delivered on or prior to the date of this Third Supplemental Indenture, shall constitute due delivery of the Subsidiary Guarantee set forth in this Third Supplemental Indenture on behalf of Hatch. Each of the Initial Subsidiary Guarantors and the New Subsidiary Guarantors hereby agrees that its Subsidiary Guarantee set forth in Section 11.01 of the Indenture shall remain in full force and effect. Section 3. Effectiveness and Validity. (a) This Third Supplemental Indenture shall become effective on the date first written above. The Indenture, as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and this Third Supplemental Indenture, are in all respects ratified and confirmed hereby. Following the effectiveness hereof, the Indenture, the First Supplemental Indenture and the Second Supplemental Indenture shall be deemed supplemented in accordance herewith, and this Third Supplemental Indenture shall form a part of the Indenture as supplemented by the First Supplemental Indenture and the Second Supplemental Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture as supplemented by the First Supplemental Indenture and the Second Supplemental Indenture shall be entitled to the benefit thereof and hereof and be bound thereby and hereby. (b) If an Officer of a Subsidiary Guarantor whose signature is on the Indenture, the First Supplemental Indenture, the Second Supplemental Indenture or this Third Supplemental Indenture no longer holds that office at the time the Trustee authenticates such 2 Notes or at any time thereafter, such Subsidiary Guarantor's Subsidiary Guarantee shall be valid nevertheless. Section 4. Solvency; No Fraudulent Transfer or Conveyance. Hatch, for the benefit of each Holder, confirms that it is a solvent corporation and that the granting of the Subsidiary Guarantee is not made with the purpose of defrauding any of its current creditors. Each of the Company, the Initial Subsidiary Guarantors, the New Subsidiary Guarantors and Hatch confirms that the Subsidiary Guarantee given by Hatch does not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. Section 5. No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator or stockholder of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company or the Subsidiary Guarantors under the Notes, the Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, this Third Supplemental Indenture, the Subsidiary Guarantees, the Registration Rights Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation. The acceptance of a Note by each Holder of Notes is deemed to be a waiver and release of all such liability. This waiver and release are part of the consideration for issuance of the Subsidiary Guarantee set forth in and evidenced by this Third Supplemental Indenture. Section 6. Governing Law. THIS THIRD SUPPLEMENTAL INDENTURE AND THE NOTES AND THE SUBSDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES. Section 7. Successors. All agreements of the Company and the Subsidiary Guarantors in the Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, this Third Supplemental Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Third Supplemental Indenture shall bind its successors. Section 8. Duplicate Originals. The parties may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same instrument. 3 Section 9. Severability. In case any provision in this Third Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, this Third Supplemental Indenture and the Notes shall not in any way be affected or impaired thereby, and a Holder shall have no claim therefor against any party hereto. Section 10. Headings. The headings of the sections of this Third Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Third Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof. Section 11. Trustee. The Trustee makes no representations as to the validity or sufficiency of this Third Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and the Subsidiary Guarantors and not of the Trustee. 4 SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first written above. ARMOR HOLDINGS, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Controller and Treasurer WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Stephanie Moore ---------------------------------- Name: Stephanie Moore Title: Trust Officer 911EP, INC., a Delaware corporation By:/s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary AHI PROPERTIES I, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR BRANDS, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS FORENSICS, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS GP, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS LP, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS MOBILE SECURITY, L.L.C., a Delaware limited liability company By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PAYROLL SERVICES, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PRODUCTS, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMOR SAFETY PRODUCTS COMPANY, a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary B-SQUARE, INC., a Texas corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary BREAK-FREE ARMOR CORP., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary BREAK-FREE, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary CASCO INTERNATIONAL, INC., a New Hampshire corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary DEFENSE TECHNOLOGY CORPORATION OF AMERICA, a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary IDENTICATOR, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK LIFETIME PRODUCTS, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK LIFETIME PRODUCTS, INC., a New Hampshire corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary MONADNOCK POLICE TRAINING COUNCIL, INC., a New Hampshire corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NAP PROPERTIES, LTD., a California limited partnership By: NAP PROPERTY MANAGERS LLC, its General Partner By: ARMOR HOLDINGS PROPERTIES, INC., its Managing Member By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NAP PROPERTY MANAGERS LLC, a California company By: ARMOR HOLDINGS PROPERTIES, INC., its Managing Member By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary O'GARA-HESS & EISENHARDT ARMORING COMPANY, L.L.C., a Delaware limited liability company By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary PRO-TECH ARMORED PRODUCTS OF MASSACHUSETTS, INC., a Massachusetts corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary RAMTECH DEVELOPMENT CORP., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SAFARI LAND LTD, INC., a California corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SAFARILAND GOVERNMENT SALES, INC., a California corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary SPEEDFEED ACQUISITION CORP., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary THE O'GARA COMPANY, an Ohio corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary ARMORGROUP SERVICES, LLC, a Delaware limited liability company By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary CDR INTERNATIONAL, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NETWORK AUDIT SYSTEMS, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary NEW TECHNOLOGIES ARMOR, INC., a Delaware corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Assistant Secretary AHI BULLETPROOF ACQUISITION CORP., a Delaware corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA, INC., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA AEROSPACE & DEFENSE GROUP, INC., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA POLYMERS SYSTEMS, INC., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA TECHNOLOGIES, INC., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary AI CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SIMULA TRANSPORTATION EQUIPMENT CORPORATION, an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary CCEC CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary SAI CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary ASD CAPITAL CORP., an Arizona corporation By: /s/ Glenn Heiar ---------------------------------- Name: Glenn Heiar Title: Chief Financial Officer, Treasurer and Secretary HATCH IMPORTS, INC. a California corporation By: /s/ Phil Baratelli ---------------------------------- Name: Phil Baratelli Title: Vice President and Secretary EXHIBIT A AHI Bulletproof Acquisition Corp., a Delaware corporation ArmorGroup Services, LLC, a Delaware limited liability company CDR International, Inc., a Delaware corporation Network Audit Systems, Inc., a Delaware corporation New Technologies Armor, Inc., a Delaware corporation Simula, Inc., an Arizona corporation Simula Aerospace & Defense Group, Inc., an Arizona corporation International Center for Safety Education, Inc., an Arizona corporation Simula Polymers Systems, Inc., an Arizona corporation Simula Technologies, Inc., an Arizona corporation AI Capital Corp., an Arizona corporation Simula Transportation Equipment Corporation, an Arizona corporation CCEC Capital Corp., an Arizona corporation SAI Capital Corp., an Arizona corporation ASD Capital Corp., an Arizona corporation EX-4.6 96 file095.txt FORM OF NEW NOTE THIS SECURITY MAY NOT BE ACQUIRED OR HELD WITH THE ASSETS OF (I) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO ERISA, (II) A "PLAN" DESCRIBED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (III) ANY ENTITY DEEMED TO HOLD "PLAN ASSETS" OF ANY OF THE FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN SUCH ENTITY, OR (IV) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"), UNLESS THE ACQUISITION AND HOLDING OF THIS SECURITY BY THE PURCHASER OR TRANSFEREE, THROUGHOUT THE PERIOD THAT IT HOLDS THIS SECURITY, ARE EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS UNDER ERISA AND SECTION 4975 OF THE CODE OR ANY PROVISIONS OF SIMILAR LAW, AS APPLICABLE, PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS. BY ITS ACQUISITION OR HOLDING OF THIS SECURITY, EACH PURCHASER AND TRANSFEREE WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE FOREGOING REQUIREMENTS HAVE BEEN SATISFIED. THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 No. ____ $__________________ CUSIP No. _________ Armor Holdings, Inc., a Delaware corporation, promises to pay to CEDE & CO. or registered assigns the principal sum of ________________________________ Dollars on August 15, 2013. Interest Payment Dates: February 15 and August 15, commencing February 15, 2004 Record Dates: February 1 and August 1 Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers. ARMOR HOLDINGS, INC. By: --------------------------------- Name: Title: By: --------------------------------- Name: Title: Dated: Certificate of Authentication: Wachovia Bank, National Association, as Trustee, certifies that this is one of the Notes referred to in the within mentioned Indenture. By: ------------------------------------- Authorized Signatory ARMOR HOLDINGS, INC. 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 1. Interest. Armor Holdings, Inc., a Delaware corporation (the "Company"), promises to pay interest on the principal amount of this Note at 8.25% per annum from August 12, 2003 until maturity; provided, however, that if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Note from and including the date on which any such Registration Default shall occur to but excluding the date on which all Registration Defaults have been cured at a rate of 0.5% per annum with respect to the first 90-day period following such Registration Default, increasing by an additional 0.5% per annum with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of additional interest of 1.0% per annum. The Company will pay interest semiannually on February 15 and August 15 of each year (each an "Interest Payment Date"), or if any such day is not a Business Day, on the next succeeding Business Day. Interest on the Notes will accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from August 12, 2003; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be February 15, 2004. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate equal to the interest rate then in effect; it shall pay interest on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest) to the persons who are registered holders of Notes at the close of business on the record date immediately preceding the Interest Payment Date, even if such Notes are cancelled after the record date and on or before the Interest Payment Date, except as provided in Section 2.11 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose in The City of New York or Charlotte, North Carolina maintained for such purposes, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds shall be required with respect to principal of, premium, if any, and interest on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal of, premium, if any, and interest on the Notes in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay such amounts by check payable in such money. It may mail an interest check to a Holder's registered address. 3. Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-registrar without notice. The Company or any of its Subsidiaries may act as Paying Agent or Registrar. 4. Indenture. The Company issued the Notes under an Indenture, dated as of August 12, 2003 (the "Indenture"), among the Company, the Subsidiary Guarantors and the Trustee. Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbb) as in effect on the date of the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture pursuant to which the Notes are issued provides that an unlimited aggregate principal amount of Notes may be issued thereunder. 5. Guarantees. The Notes are general senior subordinated unsecured obligations of the Company. The Company's obligation to pay principal, premium, if any, and interest with respect to the Notes is unconditionally guaranteed on a senior subordinated basis, jointly and severally, by the Subsidiary Guarantors pursuant to Article Eleven of the Indenture. Certain limitations to the obligations of the Subsidiary Guarantors are set forth in further detail in the Indenture. 6. Subordination. Each Holder by accepting this Note agrees, that payment of principal, premium, if any, and interest on (or any other Obligations relating to) the Notes is subordinated in right of payment, to the extent and in the manner provided in Article Ten of the Indenture, to the prior payment in full in cash of all Senior Debt of the Company (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt. Each Holder by accepting this Note agrees, that any payment in respect of the Subsidiary Guarantee of each Subsidiary Guarantor is subordinated in right of payment, to the extent and in the manner provided in Article Twelve of the Indenture, to the prior payment in full in cash of all Senior Debt of such Subsidiary Guarantor (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt. 7. Optional Redemption. Except as described below, the Notes will not be redeemable at the Company's option prior to August 15, 2008. At any time on or after August 15, 2008, the Company may, at its option, redeem all or any portion of the Notes, subject to any restriction or other provisions relating thereto contained in any Senior Debt, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of the principal amount of the Notes) set forth below, plus, in each case, accrued and unpaid interest and additional interest, if any, thereon, to the applicable redemption date, if redeemed during the 12-month period beginning on August 15 of the years indicated below: Year Percentage ---- ---------- 2008 104.125% 2009 102.750% 2010 101.375% 2011 and thereafter 100.000% Notwithstanding the foregoing, at any time and from time to time on or prior to August 15, 2006, the Company may redeem up to 35% of the aggregate principal amount of the Notes originally issued under the Indenture, subject to any restriction or other provisions relating thereto contained in any Senior Debt, with the proceeds of one or more Public Equity Offerings, at a redemption price (expressed as a percentage of principal amount) of 108.25%, plus accrued and unpaid interest and additional interest, if any, to the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that (1) at least 65% of the aggregate principal amount of the Notes originally issued under the Indenture must remain outstanding immediately after the occurrence of each such redemption (excluding Notes held by the Company and its Subsidiaries); and (2) any such redemption must occur within 60 days of the date of the closing of each such Public Equity Offering. 8. No Mandatory Redemption. The Company shall not be required to make mandatory redemption payments or sinking fund payments with respect to the Notes. 9. Selection and Notice of Redemption. Notice of redemption will be mailed to the Holder's registered address at least 30 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed. If less than all of the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed in integral multiples of $1,000 pro rata, by lot or by any other method that the Trustee considers fair and appropriate; provided that if the Notes are listed on any securities exchange, that such method complies with the requirements of such exchange. Notes in denominations larger than $1,000 may be redeemed in part. On and after the redemption date interest ceases to accrue on Notes or portions of them called for redemption (unless the Company shall default in the payment of the redemption price or accrued interest). 10. Repurchase at Option of Holder. (a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to a Change of Control Offer at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and additional interest, if any, thereon, to the date of purchase. Within 30 days following any Change of Control, the Company will mail a notice to each Holder describing, among other things, the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the date specified in such notice, which date shall be no earlier than 30 days and no later than 90 days from the date such notice is mailed, pursuant to the procedures required by the Indenture and described in such notice. (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option to (1) prepay, repay or repurchase Senior Debt and, if (i) the Senior Debt repaid is revolving credit Indebtedness, and (ii) at the time of such Asset Sale and at the time of such repayment, the Company is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 of the Indenture, correspondingly reduce commitments with respect thereto or (2) purchase Replacement Assets or to make a capital expenditure in or that is used or useful in a Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the immediately preceding sentence shall constitute "Excess Proceeds." Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company shall make an "Asset Sale Offer" to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount of the Notes purchased plus accrued and unpaid interest and additional interest, if any, thereon, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. 11. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Notes selected for redemption. Also, it need not transfer or exchange any Notes for a period of 15 days before the mailing of a notice of redemption of Notes to be redeemed. 12. Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes and neither the Company, any Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice to the contrary. 13. Amendment, Supplement, Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes, and any existing default or noncompliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes. Without the consent of any Holder, the Company and the Trustee may amend or supplement the Indenture or the Notes to: cure any ambiguity, defect or inconsistency; provide for uncertificated Notes in addition to or in place of certificated Notes; provide for the assumption of the Company's or any Subsidiary Guarantor's Obligations to the Holders of the Notes in the case of a merger or consolidation or sale of all or substantially all of the Company's or such Subsidiary Guarantor's assets pursuant to the provisions of Section 5.01, 4.20(B) or 4.22 of the Indenture; to make any change that would provide any additional benefit or rights to the Holders or that does not adversely affect the legal rights hereunder of any such Holder; to comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA; to comply with Sections 4.20(C) (release of Subsidiary Guarantees) and 4.22 (Additional Subsidiary Guarantors) of the Indenture; evidence and provide for the acceptance of appointment by a successor Trustee; provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture as of the date thereof; or allow any Subsidiary of the Company or any of its Subsidiaries to execute a supplemental indenture to become a Subsidiary Guarantor or to execute a Subsidiary Guarantee with respect to the Notes. 14. Defaults and Remedies. If an Event of Default (other than an Event of Default related to bankruptcy or insolvency of the Company, any Significant Subsidiary of the Company or any Subsidiaries of the Company that, taken together as a whole, would constitute a Significant Subsidiary) under the Indenture occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Notes may declare the unpaid principal of, premium, if any, accrued and unpaid interest and additional interest, if any, on, all the Notes then outstanding to be due and payable, by a notice in writing to the Company (and to the Trustee, if given by Holders) specifying the respective Event of Default and upon any such declaration such principal, premium, if any, accrued and unpaid interest and additional interest, if any, shall become immediately due and payable; provided, however, that so long as any Obligations under any Credit Facilities shall be outstanding, the acceleration shall not be effective until the earlier of (1) an acceleration of Indebtedness under such Credit Facilities or (2) five business days after receipt by the Company and the agent under such Credit Facilities of written notice of such declaration of acceleration of the Notes. If an Event of Default related to bankruptcy or insolvency of the Company, any Significant Subsidiary of the Company or any Subsidiaries of the Company that, taken together as a whole, would constitute a Significant Subsidiary occurs, all unpaid principal of, accrued interest and additional interest, if any, on the Notes then outstanding will become due and payable immediately, without any declaration or other act on the part of the Trustee or any Holder. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity and security satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in aggregate principal amount of the Notes may direct the Trustee in its exercise of any trust or power. 15. Trustee Dealings with Company and Subsidiary Guarantors. The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company, the Subsidiary Guarantors or their respective Subsidiaries or Affiliates with the same rights it would have if it were not Trustee. 16. Authentication. This Note shall not be valid until the Trustee or an authenticating agent signs the certificate of authentication on the other side of this Note. 17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Notes as a convenience to Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon. 18. No Recourse Against Others. A director, officer, employee, incorporator or stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee, shall not have any liability for any obligations of the Company, any Subsidiary Guarantor or the Trustee, under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes. 19. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). This Note shall be governed by and construed in accordance with the laws of the State of New York. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: Armor Holdings, Inc., 1400 Marsh Landing Parkway, Suite 112, Jacksonville, Florida 32250, Attention: Philip Baratelli. ASSIGNMENT FORM To assign this Note, fill in the form below: I or we assign and transfer this Note to: - -------------------------------------------------------------------------------- (Insert assignee's social security or tax I.D. no.) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint ___________________ as agent to transfer this Note on the books of the Company. The agent may substitute another to act for him. - -------------------------------------------------------------------------------- Your Signature: ------------------------------------------------------------------ (Sign exactly as your name appears on the other side of this Note) Your Name: -------------------------------------- Date: Signature Guarantee: ---------------------------- FORM OF OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 4.11 or Section 4.16 of the Indenture, check the box: [ ] If you want to have only part of this Note purchased by the Company pursuant to Section 4.11 or Section 4.16 of the Indenture, state the amount (in integral multiples of $1,000): $ ---------------------------------------- Date: ------------------------------------ Signature: ------------------------------- (Sign exactly as your name appears on the other side of this Note) Name: --------------------------------------------------------------------------- Signature Guarantee: ------------------------------------------------------------ SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE The following increases or decreases in this Global Note have been made:
==================================================================================================================== PRINCIPAL AMOUNT OF SIGNATURE OF AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN THIS GLOBAL NOTE AUTHORIZED SIGNATORY PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF FOLLOWING SUCH OF TRUSTEE OR NOTES DATE OF EXCHANGE THIS GLOBAL NOTE THIS GLOBAL NOTE DECREASE OR INCREASE CUSTODIAN ==================================================================================================================== ====================================================================================================================
EX-12.1 97 file096.txt STATEMENT OF COMPUTATION OF RATIO OF EARNINGS ARMOR HOLDINGS, INC. CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
For the nine months ended For the year ended December 31, September 30, --------------------------------------------------------- ------------- 2003 1998 1999 2000 2001 2002 (Unaudited) --------- --------- --------- --------- --------- ------------- (In thousands, except for the ratio of earnings to fixed charges) Income from continuing operations before provision for income taxes $ 6,613 $ 15,800 $ 18,087 $ 22,891 $ 37,391 $ 24,876 Fixed Charges Interest expense and amortization of debt discount and premium on all indebtedness 89 310 2,214 4,201 1,690 2,786 Interest factor of rental expense 162 384 508 709 1,005 279 --------- --------- --------- --------- --------- ------------- Total fixed charges 251 694 2,722 4,910 2,695 3,065 --------- --------- --------- --------- --------- ------------- Income from continuing operations before provision for income taxes, plus total fixed charges $ 6,864 $ 16,494 $ 20,809 $ 27,801 $ 40,086 $ 27,941 --------- --------- --------- --------- --------- ------------- Ratio of earnings to fixed charges 27.4 23.8 7.6 5.7 14.9 9.1 ========= ========= ========= ========= ========= =============
EX-21.1 98 file097.txt SUBSIDIARIES OF ARMOR HOLDINGS, INC. SUBSIDIARIES OF ARMOR HOLDINGS, INC I. UNITED STATES - -------------------------------------------------------------------------------- COMPANY JURISDICTION OF FORMATION (TYPE OF ENTITY IF OTHER THAN CORPORATION) - -------------------------------------------------------------------------------- 911EP, Inc. Delaware - -------------------------------------------------------------------------------- AHI Bulletproof Acquisition Corp. Delaware - -------------------------------------------------------------------------------- AHI Properties I, Inc. Delaware - -------------------------------------------------------------------------------- AI Capital Corp. Arizona - -------------------------------------------------------------------------------- Armor Brands, Inc. Delaware - -------------------------------------------------------------------------------- ArmorGroup Services, LLC Delaware (Limited Liability Company) - -------------------------------------------------------------------------------- Armor Holdings Forensics, Inc. Delaware - -------------------------------------------------------------------------------- Armor Holdings GP, LLC Delaware (Limited Liability Company) - -------------------------------------------------------------------------------- Armor Holdings LP, LLC Delaware (Limited Liability Company) - -------------------------------------------------------------------------------- Armor Holdings Mobile Security, L.L.C. Delaware (Limited Liability Company) - -------------------------------------------------------------------------------- Armor Holdings Payroll Services, LLC Delaware (Limited Liability Company) - -------------------------------------------------------------------------------- Armor Holdings Products, Inc. Delaware - -------------------------------------------------------------------------------- Armor Holdings Properties, Inc. Delaware - -------------------------------------------------------------------------------- Armor Safety Products Company Delaware - -------------------------------------------------------------------------------- ASD Capital Corp. Arizona - -------------------------------------------------------------------------------- B-Square, Inc. Texas - -------------------------------------------------------------------------------- Break-Free Armor Corp. Delaware - -------------------------------------------------------------------------------- Break-Free Inc. Delaware - -------------------------------------------------------------------------------- Casco International, Inc. New Hampshire - -------------------------------------------------------------------------------- CCEC Capital Corp. Arizona - -------------------------------------------------------------------------------- CDR International, Inc. Delaware - -------------------------------------------------------------------------------- Defense Technology Corporation of America Delaware - -------------------------------------------------------------------------------- Hatch Imports, Inc. California - -------------------------------------------------------------------------------- Identicator, Inc. Delaware - -------------------------------------------------------------------------------- International Center for Safety Education, Inc. Arizona - -------------------------------------------------------------------------------- Monadnock Lifetime Products, Inc. Delaware - -------------------------------------------------------------------------------- Monadnock Lifetime Products, Inc. New Hampshire - -------------------------------------------------------------------------------- Monadnock Police Training Council, Inc. New Hampshire - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- COMPANY JURISDICTION OF FORMATION (TYPE OF ENTITY IF OTHER THAN CORPORATION) - -------------------------------------------------------------------------------- NAP Properties, Ltd. California (Limited Partnership) - -------------------------------------------------------------------------------- NAP Property Managers, LLC California (Limited Liability Company) - -------------------------------------------------------------------------------- Network Audit Systems, Inc. Delaware - -------------------------------------------------------------------------------- New Technologies Armor, Inc. Delaware - -------------------------------------------------------------------------------- O'Gara-Hess & Eisenhardt Armoring Company, L.L.C. Delaware (Limited Liability Company) - -------------------------------------------------------------------------------- Pro-Tech Armored Products of Massachusetts, Inc. Massachusetts - -------------------------------------------------------------------------------- Ramtech Development Corp. Delaware - -------------------------------------------------------------------------------- Safariland Government Sales, Inc. California - -------------------------------------------------------------------------------- Safari Land Ltd., Inc. California - -------------------------------------------------------------------------------- SAI Capital Corp. Arizona - -------------------------------------------------------------------------------- Simula, Inc. Arizona - -------------------------------------------------------------------------------- Simula Aerospace & Defense Group, Inc. Arizona - -------------------------------------------------------------------------------- Simula Polymers Systems, Inc. Arizona - -------------------------------------------------------------------------------- Simula Technologies, Inc. Arizona - -------------------------------------------------------------------------------- Simula Transportation Equipment Corporation Arizona - -------------------------------------------------------------------------------- Speedfeed Acquisition Corp. Delaware - -------------------------------------------------------------------------------- The O'Gara Company Ohio - -------------------------------------------------------------------------------- USDS, Inc. Delaware - -------------------------------------------------------------------------------- 2 II. UNITED KINGDOM - -------------------------------------------------------------------------------- COMPANY JURISDICTION OF FORMATION - -------------------------------------------------------------------------------- AH Worldwide LP Scotland (Limited Partnership) - -------------------------------------------------------------------------------- Armor Group Limited Partnership Scotland (Limited Partnership) - -------------------------------------------------------------------------------- Armor Holdings CDR Limited United Kingdom - -------------------------------------------------------------------------------- Armor Products Holdings Limited United Kingdom - -------------------------------------------------------------------------------- Armor Products International Limited United Kingdom - -------------------------------------------------------------------------------- Armor Services Limited Partnership Scotland (Limited Partnership) - -------------------------------------------------------------------------------- Simula Capital Limited England and Wales (Limited Liability Company) - -------------------------------------------------------------------------------- 3 III. SOUTH AMERICA - ------------------------------------------------------------------------------- COMPANY JURISDICTION OF FORMATION - ------------------------------------------------------------------------------- O'Gara-Hess & Eisenhardt de Colombia, S.A. Colombia - ------------------------------------------------------------------------------- O'Gara-Hess & Eisenhardt do Brasil LTDA Brazil - ------------------------------------------------------------------------------- 4 IV. MEXICO - -------------------------------------------------------------------------------- COMPANY JURISDICTION OF FORMATION - -------------------------------------------------------------------------------- Orientacion Profesional y Administrativa, S.A. de C.V. Mexico - -------------------------------------------------------------------------------- The O'Gara Company de Mexico, S.A. de C.V. Mexico - -------------------------------------------------------------------------------- Safariland Internacional, S.A. de C.V. Mexico - -------------------------------------------------------------------------------- 5 V. CONTINENTAL EUROPE - -------------------------------------------------------------------------------- COMPANY JURISDICTION OF FORMATION - -------------------------------------------------------------------------------- Defence Systems France SARL France - -------------------------------------------------------------------------------- Defence Systems International Africa SA France - -------------------------------------------------------------------------------- O'Gara-Hess & Eisenhardt, Srl Italy - -------------------------------------------------------------------------------- O'Gara-France S.A. France - -------------------------------------------------------------------------------- O'Gara Hess & Eisenhardt- France S.A. France - -------------------------------------------------------------------------------- AH Holdings Germany GmbH Germany - -------------------------------------------------------------------------------- TRASCO Grundstucksverwaltungs GmbH Germany - -------------------------------------------------------------------------------- TRASCO Vehicles GmbH Germany - -------------------------------------------------------------------------------- Societe de Blindage et de Securite S.B.S. France - -------------------------------------------------------------------------------- SARL Essonne Securite France - -------------------------------------------------------------------------------- 6 EX-23.1 99 file098.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the use in this Registration Statement on Form S-4 of Armor Holdings, Inc. of our report dated March 30, 2003, except for Notes 20 and 21, as to which the date is January 6, 2004, relating to the financial statements, which appears in such Registration Statement. We also consent to the references to us under the headings "Experts" and "Selected Financial Data" in such Registration Statement. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Jacksonville, Florida January 6, 2003 EX-23.2 100 file099.txt CONSENT OF DELOITTE & TOUCHE LLP INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Armor Holdings, Inc. on Form S-4 of our report dated March 21, 2003, except for Notes 7 and 8, as to which the dates are March 25, 2003 and April 9, 2003, respectively (which report expresses an unqualified opinion and includes an explanatory paragraph relating to Simula, Inc.'s ability to continue as a going concern as described in Note 1), appearing in the Annual Report on Form 10-K of Simula, Inc. for the year ended December 31, 2002 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Phoenix, Arizona January 5, 2004 EX-25.1 101 file100.txt FORM T-1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) [ ] WACHOVIA BANK, NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) 22-1147033 (I.R.S. Employer Identification No.) 301 SOUTH COLLEGE STREET, CHARLOTTE, NORTH CAROLINA (Address of principal executive offices) 28288-0630 (Zip Code) WACHOVIA BANK, NATIONAL ASSOCIATION, ONE PENN PLAZA, SUITE 1414 NEW YORK, NEW YORK 10119 ATTENTION: CORPORATE TRUST ADMINISTRATION (212) 273-7012 (Name, address and telephone number of agent for service) ARMOR HOLDINGS, INC. (Exact name of obligor as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 59-3392443 (I.R.S. Employer Identification No.)
- ---------------------------------------- ------------------------------- ----------------------- 911EP, Inc. Delaware 13-4213473 - ---------------------------------------- ------------------------------- ----------------------- AHI Bulletproof Acquisition Corp. Delaware 05-0592796 - ---------------------------------------- ------------------------------- ----------------------- AHI Properties I, Inc. Delaware 01-0718252 - ---------------------------------------- ------------------------------- ----------------------- AI Capital Corp. Arizona 86-0768865 - ---------------------------------------- ------------------------------- ----------------------- Armor Brands, Inc. Delaware 80-0051043 - ---------------------------------------- ------------------------------- ----------------------- ArmorGroup Services, LLC Delaware 52-2295786 - ---------------------------------------- ------------------------------- ----------------------- Armor Holdings Forensics, Inc. Delaware 59-3678749 - ---------------------------------------- ------------------------------- ----------------------- Armor Holdings GP, LLC Delaware 59-3678751 - ---------------------------------------- ------------------------------- ----------------------- - ---------------------------------------- ------------------------------- ----------------------- Armor Holdings LP, LLC Delaware 59-3678750 - ---------------------------------------- ------------------------------- ----------------------- Armor Holdings Mobile Security, L.L.C. Delaware 59-3753134 - ---------------------------------------- ------------------------------- ----------------------- Armor Holdings Payroll Services, LLC Delaware 42-1563404 - ---------------------------------------- ------------------------------- ----------------------- Armor Holdings Products, Inc. Delaware 59-2044869 - ---------------------------------------- ------------------------------- ----------------------- Armor Holdings Properties, Inc. Delaware 59-3410197 - ---------------------------------------- ------------------------------- ----------------------- Armor Safety Products Company Delaware 43-1960312 - ---------------------------------------- ------------------------------- ----------------------- ASD Capital Corp. Arizona 86-0789385 - ---------------------------------------- ------------------------------- ----------------------- B-Square, Inc. Texas 75-2508507 - ---------------------------------------- ------------------------------- ----------------------- Break-Free Armor Corp. Delaware 05-0592799 - ---------------------------------------- ------------------------------- ----------------------- Break-Free, Inc. Delaware 33-0367696 - ---------------------------------------- ------------------------------- ----------------------- Casco International, Inc. New Hampshire 02-0361726 - ---------------------------------------- ------------------------------- ----------------------- CCEC Capital Corp. Arizona 86-0763929 - ---------------------------------------- ------------------------------- ----------------------- CDR International, Inc. Delaware 56-2010802 - ---------------------------------------- ------------------------------- ----------------------- Defense Technology Corporation of Delaware 83-0318312 America - ---------------------------------------- ------------------------------- ----------------------- Hatch Imports, Inc. California 95-2497492 - ---------------------------------------- ------------------------------- ----------------------- Identicator, Inc. Delaware 59-3756251 - ---------------------------------------- ------------------------------- ----------------------- International Center for Safety Arizona 86-0787589 Education, Inc. - ---------------------------------------- ------------------------------- ----------------------- Monadnock Lifetime Products, Inc. Delaware 02-0528875 - ---------------------------------------- ------------------------------- ----------------------- Monadnock Lifetime Products, Inc. New Hampshire 02-0303656 - ---------------------------------------- ------------------------------- ----------------------- Monadnock Police Training Council, Inc. New Hampshire 02-0423584 - ---------------------------------------- ------------------------------- ----------------------- NAP Properties, Ltd. California 95-4230863 - ---------------------------------------- ------------------------------- ----------------------- NAP Property Managers, LLC California 33-0755818 - ---------------------------------------- ------------------------------- ----------------------- Network Audit Systems, Inc. Delaware 16-1558713 - ---------------------------------------- ------------------------------- ----------------------- New Technologies Armor, Inc Delaware 93-1221356 - ---------------------------------------- ------------------------------- ----------------------- O'Gara-Hess & Eisenhardt Armoring Delaware 31-1258139 Company, L.L.C. - ---------------------------------------- ------------------------------- ----------------------- Pro-Tech Armored Products of Massachusetts 04-2989918 Massachusetts, Inc. - ---------------------------------------- ------------------------------- ----------------------- Ramtech Development Corp. Delaware 05-0592801 - ---------------------------------------- ------------------------------- ----------------------- Safari Land Ltd., Inc. California 95-2291390 - ---------------------------------------- ------------------------------- ----------------------- Safariland Government Sales, Inc. California 33-0798807 - ---------------------------------------- ------------------------------- ----------------------- SAI Capital Corp. Arizona 86-0772587 - ---------------------------------------- ------------------------------- ----------------------- Simula Aerospace & Defense Group, Inc. Arizona 86-0742551 - ---------------------------------------- ------------------------------- ----------------------- Simula, Inc. Arizona 86-0320129 - ---------------------------------------- ------------------------------- ----------------------- Simula Polymers Systems, Inc. Arizona 86-0979231 - ---------------------------------------- ------------------------------- ----------------------- Simula Technologies, Inc. Arizona 86-0842935 - ---------------------------------------- ------------------------------- ----------------------- - ---------------------------------------- ------------------------------- ----------------------- Simula Transportation Equipment Arizona 86-0742552 Corporation - ---------------------------------------- ------------------------------- ----------------------- Speedfeed Acquisition Corp. Delaware 03-0419829 - ---------------------------------------- ------------------------------- ----------------------- The O'Gara Company Ohio 31-1726886 - ---------------------------------------- ------------------------------- -----------------------
1400 Marsh Landing Parkway Suite 112 Jacksonville, Florida (Address of principal executive offices) 32250 (Zip Code) 8-1/4% Senior Subordinated Notes due 2013 (TITLE OF INDENTURE SECURITIES) 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH IT IS SUBJECT: Comptroller of the Currency United States Department of the Treasury Washington, D.C. 20219 Federal Reserve Bank Richmond, Virginia 23219 Federal Deposit Insurance Corporation Washington, D.C. 20429 B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. Yes. 2. AFFILIATIONS WITH OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. None. 16. LIST OF EXHIBITS. EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d). 1. Copy of Articles of Association of the trustee as now in effect. (Previously filed with the Securities and Exchange Commission on March 16, 1998 as an Exhibit to Form T-1 in connection with Registration Statement Number 333-47985.) 2. Copy of the Certificate of the Comptroller of the Currency dated March 4, 1998, evidencing the authority of the trustee to transact business. (Previously filed with the Securities and Exchange Commission on July 15, 1998 as an Exhibit to Form T-1 in connection with Registration Statement Number 333-59145.) 3. Copy of the Certification of Fiduciary Powers of the trustee by the Office of the Comptroller of the Currency dated April 7, 1999. (Previously filed with the Securities and Exchange Commission on May 20, 1999 in connection with Registration Statement Number 333-78927.) 4. Copy of existing by-laws of the trustee.(Previously filed with the Securities and Exchange Commission on April 30, 2001 in connection with Registration Statement Number 333-59848.) 6. Consent of the trustee required by Section 321(b) of the Act. (Previously filed with the Securities and Exchange Commission on April 30, 2001 in connection with Registration Statement Number 333-59848.) 7. Copy of latest report of condition of the trustee published pursuant to the requirements of its supervising authority. (Filed herewith.) NOTE The trustee disclaims responsibility for the accuracy or completeness of information contained in this Statement of Eligibility not known to the trustee and not obtainable by it through reasonable investigation and as to which information it has obtained from the obligor and has had to rely or will obtain from the principal underwriters and will have to rely. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939,the trustee, Wachovia Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 23rd day of December, 2003. WACHOVIA BANK, NATIONAL ASSOCIATION By: /S/ STEPHANIE MOORE ----------------------- Name: STEPHANIE MOORE Title: RELATIONSHIP MANAGER EXHIBIT 7 WACHOVIA BANK NATIONAL ASSOCIATION STATEMENT OF FINANCIAL CONDITION AS OF 12/31/2001 ASSETS ($000's)
ASSETS Cash and balance due from depository institutions: Non-interest-bearing balances and currency and coin 10,660,000 Interest bearing balances 6,638,000 Securities: Hold-to-maturity securities 0 Available-for-sale securities 47,596,000 Federal funds sold and securities purchased under agreements to resell 5,188,000 Loans and lease financing receivables: Loan and leases held for sale 7,337,000 Loan and leases, net of unearned income 116,417,000 Less: Allowance for loan and lease losses 2,222,000 Less: Allocated transfer risk reserve 0 Loans and leases, net of unearned income, allowance 114,195,000 Trading Assets 19,071,000 Premises and fixed assets (including capitalized leases) 2,628,000 Other real estate owned 92,000 Investment in unconsolidated subsidiaries and associated companies 503,000 Customer's liability to this bank on acceptances outstanding 732,000 Intangible assets: Goodwill 2,253,000 Other intangible Assets 336,000 Other assets: 15,556,000 Total Assets: 232,785,000 LIABILITIES Deposits: In domestic offices 135,276,000 Non-interest-bearing 24,546,000 Interest-bearing 110,730,000 In foreign offices, Edge and Agreement subsidiaries, and IBFs 12,473,000 Non-interest-bearing 32,000 Interest-bearing 12,441,000 Federal funds purchased and securities sold under agreements to repurchase 19,728,000 Trading liabilities 15,559,000 Other borrowed money 16,702,000 Bank's liability on acceptances executed and outstanding 749,000 Subordinated notes and debentures 5,993,000 Other liabilities. 9,195,000 Total liabilities 215,675,000 Minority Interest in consolidated subsidiaries 977,000 EQUITY CAPITAL Perpetual preferred stock and related surplus 161,000 Common Stock 455,000 Surplus 13,302,000 Retained Earnings 1,847,000 Accumulated other comprehensive income 368,000 Other Equity Capital components 0 Total equity capital 16,133,000 Total liabilities and equity capital 232,785,000
EX-99.1 102 file101.txt FORM OF LETTER TO DTC PARTICIPANTS ARMOR HOLDINGS, INC. OFFER TO EXCHANGE ALL OUTSTANDING 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 FOR 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 PURSUANT TO THE PROSPECTUS DATED , 2004 To Depository Trust Company Participants: We are enclosing herewith the materials listed below relating to the offer by Armor Holdings, Inc. (the "Company") to exchange up to $150,000,000 aggregate principal amount of the Company's 8 1/4% Senior Subordinated Notes due 2013 (the "New Notes"), pursuant to an offering registered under the Securities Act of 1933, as amended (the "Securities Act"), for a corresponding principal amount of the Company's issued and outstanding 8 1/4% Senior Subordinated Notes due 2013 (the "Old Notes"), upon the terms and subject to the conditions set forth in the Prospectus dated , 2004 (the "Prospectus"), of the Company and the related letter of transmittal (the "Letter of Transmittal"), in each case as amended or supplemented from time to time (which together constitute the "Exchange Offer"). Capitalized terms used but not defined herein have the meanings given to such terms in the Prospectus. Enclosed herewith are copes of the following documents: 1. Prospectus dated , 2004; 2. Letter of Transmittal; 3. Notice of Guaranteed Delivery; 4. Instruction to Book-Entry Transfer Participant from Owner; 5. Letter which may be sent to your clients for whose account you hold Old Notes in your name or in the name of your nominee, to accompany the instruction form referred to above, for obtaining such client's instruction with regard to the Exchange Offer. WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2004, UNLESS EXTENDED. The Exchange Offer is not conditioned upon any minimum number of Old Notes being tendered. To participate in the Exchange Offer, a beneficial holder (a "Holder") of Old Notes must cause a DTC Participant to tender such Holder's Old Notes to the account of The Bank of New York (the "Exchange Agent") maintained at The Depository Trust Company ("DTC") for the benefit of the Exchange Agent through DTC's Automated Tender Offer Program ("ATOP"), including transmission of a computer-generated message that acknowledges and agrees, on behalf of the DTC Participant and the beneficial owners of tendered Old Notes, to be bound by the terms of the Letter of Transmittal. By complying with DTC's ATOP procedures with respect to the Exchange Offer, the DTC Participant confirms, on behalf of itself and the beneficial owners of tendered Old Notes, all provisions of the Letter of Transmittal applicable to it and such beneficial owners as fully as if it had completed, executed and returned the Letter of Transmittal to the Exchange Agent. Pursuant to the Letter of Transmittal, each Holder of Old Notes will represent to the Company that (i) it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company; (ii) it is not a broker-dealer tendering Old Notes acquired for its own account directly from the Company; (iii) any New Notes to be received by it will be acquired in the ordinary course of its business; and (iv) it is not engaged in, and does not intend to engage in, a distribution of such New Notes and has no arrangement or understanding to participate in a distribution of New Notes. If a holder of Old Notes is engaged in or intends to engage in a distribution of New Notes or has any arrangement or understanding with respect to the distribution of New Notes to be acquired pursuant to the Exchange Offer, such holder may not rely on the applicable interpretations of the staff of the Securities and Exchange Commission and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. The enclosed Instruction to the Book-Entry Transfer Participant from Owner contains an authorization by the beneficial owners of the Old Notes for you to make the foregoing representations. The Company will not pay any fee or commission to any broker or dealer or to any other persons (other than the Exchange Agent) in connection with the solicitation of tenders of Old Notes pursuant to the Exchange Offer. Additional copies of the enclosed material may be obtained from Wachovia Bank, National Association, Corporate Trust Operations, 1525 West W.T. Harris Boulevard, Charlotte, North Carolina 28288, Attention: Marsha Rice, Telephone No. (704) 490-7413, Facsimile No. (704) 590-7628. ARMOR HOLDINGS, INC. By: ----------------------------- Name: Phil Baratelli Title: Controller and Treasurer NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU THE AGENT OF ARMOR HOLDINGS, INC. OR AUTHORIZE YOU TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON ITS BEHALF IN CONNECTION THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. 2 EX-99.2 103 file102.txt FORM OF LETTER OF TRANSMITTAL LETTER OF TRANSMITTAL ARMOR HOLDINGS, INC. OFFER TO EXCHANGE ALL OUTSTANDING 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 FOR 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 PURSUANT TO THE PROSPECTUS DATED , 2004 - -------------------------------------------------------------------------------- THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2004 OR SUCH LATER DATE AND TIME TO WHICH THE EXCHANGE OFFER MAY BE EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO THE EXPIRATION DATE. - -------------------------------------------------------------------------------- WACHOVIA BANK, NATIONAL ASSOCIATION
- ------------------------------------------ -------------------------------------- ------------------------------------- By Registered or Certified Mail: Facsimile Transmission Number By Hand/Overnight Delivery: - ------------------------------------------ -------------------------------------- ------------------------------------- Wachovia Bank, National Association --------------- Wachovia Bank, National Association Corporate Trust Operations Corporate Trust Operations 1525 West W.T. Harris Boulevard 1525 West W. T. Harris Boulevard Charlotte, North Carolina 28288 Charlotte, North Carolina 28262 Attn.: Marsha Rice Attn.: Marsha Rice - ------------------------------------------ -------------------------------------- -------------------------------------
For Information Call: Wachovia Bank, National Association Corporate Trust Operations 1525 West W.T. Harris Boulevard Charlotte, North Carolina 28288 Attn.: Marsha Rice Telephone # (704) 490-7413 Fax # (704) 590-7628 Delivery of this letter of transmittal to an address other than as set forth above, or transmission of instructions via facsimile other than as set forth above, does not constitute a valid delivery. The undersigned acknowledges that the undersigned has received the Prospectus dated , 2004 (as amended or supplemented from time to time, the "Prospectus"), of Armor Holdings, Inc., a Delaware corporation (the "Company"), and this letter of transmittal (as amended or supplemented from time to time, the "Letter of Transmittal"), which together constitute the Company's offer (the "Exchange Offer") to exchange up to $150,000,000 aggregate principal amount of 8 1/4% Senior Subordinated Notes due 2013 (the "New Notes") of the Company, for an equal principal amount of the Company's issued and outstanding 8 1/4% Senior Subordinated Notes due 2013 (the "Old Notes"). The terms of the New Notes are substantially identical in all material respects (including principal amount, interest rate and maturity) to those of the Old Notes, except that the New Notes will be registered under the Securities Act of 1933, as amended (the "Securities Act"). THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. Capitalized terms used but not defined herein have the meanings given to such terms in the Prospectus. This Letter of Transmittal is to be completed by holders of Old Notes (a) if Old Notes are to be forwarded herewith or (b) if tenders of Old Notes are to be made by book-entry transfer to an account maintained by Wachovia Bank, National Association (the "Exchange Agent") at The Depository Trust Company ("DTC") pursuant to the procedures set forth in the Prospectus under "The Exchange Offer-Procedures for Tendering". Delivery of this Letter of Transmittal and any other required documents should be made to the Exchange Agent. If a holder desires to tender Old Notes pursuant to the Exchange Offer but time will not permit this Letter of Transmittal, the certificates representing Old Notes or other required documents to reach the Exchange Agent on or before the Expiration Date, or the procedure for book-entry transfer cannot be completed on a timely basis, such holder may effect a tender of such Old Notes in accordance with the guaranteed delivery procedures set forth in the Prospectus under "Exchange Offer-Guaranteed Delivery Procedures". DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT. NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY The undersigned has completed the appropriate boxes below and signed this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer. List below the Old Notes to which the Letter of Transmittal relates. If the space provided below is inadequate, the certificate numbers and principal amount of Old Notes should be listed on a separate schedule affixed hereto.
- -------------------------------------------------- --------------- ----------------- ----------------- --------------- DESCRIPTION OF OLD NOTES (1) (2) (3) (4) - -------------------------------------------------- --------------- ----------------- ----------------- --------------- Principal Amount of Old Notes Aggregate Tendered (if Principal less than Name(s) and Address(es) of Registered Holder(s) Certificate Maturity Date Amount of Old all)** (Please fill in, if blank) Number(s)* Notes - -------------------------------------------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- --------------- ----------------- ----------------- --------------- - ----------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------- * Need not be completed if Old Notes are being tendered by book-entry holders. ** Old Notes may be tendered in whole or in part in integral multiples of $1,000. Unless this column is completed, a holder will be deemed to have tendered the full aggregate principal amount of the Old Notes represented by the Old Notes indicated in column 3. - -------------------------------------------------------------------------------- (BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY) ( ) CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING: Name of Tendering Institution: ______________________________________ Account Number:_______________________________________________________ Transaction Code Number:______________________________________________ ( ) CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: Name(s) of Registered Holder(s):______________________________________ Window Ticket Number (if any):________________________________________ Name of Eligible Institution that Guaranteed Delivery:________________ Date of Execution of Notice of Guaranteed Delivery:___________________ If Guaranteed Delivery is to be made by Book-Entry Transfer: Name of Tendering Institution:_______________________________ Account Number:____________________ Transaction Code Number:_____________ ( ) CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD NOTES ARE TO BE RETURNED BY CREDITING DTC ACCOUNT NUMBER SET FORTH ABOVE. ( ) CHECK HERE IF YOU ARE A BROKER-DEALER THAT ACQUIRED THE OLD NOTES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. Name:_________________________________________________________________ Address:______________________________________________________________ The undersigned represents that it is not an "affiliate" of the Company (within the meaning of Rule 405 under the Securities Act) or the Guarantors (as defined below), that the new notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange Offer it had no arrangement with any person to participate in a distribution of the new notes. In addition, if the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of the new notes. If the undersigned is a broker-dealer that will receive the new notes for its own account in exchange for the old notes, it represents that the old notes to be exchanged for the new notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such new notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. Ladies and Gentlemen: Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the aggregate principal amount of Old Notes indicated above in exchange for a like aggregate principal amount of New Notes of the same maturity. Subject to, and effective upon, the acceptance for exchange of the Old Notes tendered hereby, the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Old Notes. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent its agent and attorney-in-fact (with full knowledge that the Exchange Agent also acts as the agent of the Company) with respect to the tendered Old Notes with the full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (i) deliver certificates for such Old Notes to the Company and deliver all accompanying evidences of transfer and authenticity to, or upon the order of, the Company, (ii) present such Old Notes for transfer on the books of the Company, and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Old Notes, all in accordance with the terms of the Exchange Offer. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, exchange, assign and transfer the Old Notes tendered hereby and that, when the same are accepted for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims or proxies. The undersigned will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Company to be necessary or desirable to complete the exchange, assignment and transfer of the Old Notes tendered hereby, and the undersigned will comply with its obligations under the Registration Rights Agreement, dated August 12, 2003 (the "Registration Rights Agreement"), among the Company, the subsidiary guarantors party thereto (the "Guarantors") and Wachovia Capital Markets, LLC. The undersigned has read and agreed to all of the terms of the Exchange Offer. The undersigned agrees that acceptance of any tendered Old Notes by the Company and the issuance of New Notes in exchange therefor will constitute performance in full by the Company of its obligations under the Registration Rights Agreement. The name(s) and address(es) of the registered holders of the Old Notes tendered hereby should be printed above, if they are not already set forth above, as they appear on the Old Notes. The certificate number(s) and the principal amount(s) of the Old Notes that the undersigned wishes to tender should be indicated in the appropriate boxes above. The undersigned also acknowledges that this Exchange Offer is being made in reliance on certain interpretive letters by the staff of the Securities and Exchange Commission (the "SEC") to third parties in unrelated transactions. On the basis thereof, the New Notes issued in exchange for the Old Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by holders thereof (other than any such holder that is an" affiliate" of the Company within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such holders' business and such holders are not participating in, and have no arrangement or understanding with any person to participate in, the distribution of such New Notes. THE UNDERSIGNED ACKNOWLEDGES THAT ANY HOLDER OF OLD NOTES USING THE EXCHANGE OFFER TO PARTICIPATE IN A DISTRIBUTION OF THE NEW NOTES (I) CANNOT RELY ON THE POSITION OF THE STAFF OF THE COMMISSION ENUNCIATED IN ITS INTERPRETIVE LETTERS AND (II) MUST COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH A SECONDARY RESALE TRANSACTION. If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of New Notes. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. The undersigned represents that (i) it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company; (ii) it is not a broker-dealer tendering Old Notes acquired for its own account directly from the Company; (iii) any New Notes to be received by it will be acquired in the ordinary course of its business; and (iv) it is not engaged in, and does not intend to engage in, a distribution of such New Notes and has no arrangement or understanding to participate in a distribution of New Notes. If a holder of Old Notes is engaged in or intends to engage in a distribution of New Notes or has any arrangement or understanding with respect to the distribution of New Notes to be acquired pursuant to the Exchange Offer, such holder may not rely on the applicable interpretations of the staff of the SEC and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. The undersigned represents that it is a "qualified institutional buyer" within the meaning of Rule 144A. A broker-dealer that receives New Notes for its own account pursuant to the Exchange Offer by tendering Old Notes and executing this Letter of Transmittal acknowledges that it will deliver a Prospectus in connection with any resale of the New Notes. The Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Old Notes where the Old Notes were acquired as a result of market-making activities or other trading activities. The Company and the Guarantors will use their best efforts to keep this Registration Statement continuously effective, supplemented and amended to the extent necessary to ensure that it is available for resales of New Notes acquired by broker-dealers for their own accounts as a result of market-making activities or other trading activities, and to ensure that it conforms with the requirements of the Registration Rights Agreement, the Securities Act and the policies, rules and regulations of the SEC, for a period ending on the earlier of o 180 days from the date on which the Exchange Offer is consummated; and o the date on which all resales of the New Notes by the broker-dealers holding the New Notes have been made. The Company and the Guarantors will provide sufficient copies of the latest version of the Prospectus to broker-dealers promptly upon request at any time during the 180-day (or shorter as provided in the foregoing sentence) period in order to facilitate such resales. Any broker-dealer that receives New Notes pursuant to the Exchange Offer by tendering Old Notes and executing this Letter of Transmittal agrees to notify the Company before using the Prospectus in connection with the sale or transfer of New Notes. The broker-dealer further acknowledges and agrees that, upon receipt of notice from us of the happening of any event which makes any statement in the Prospectus untrue in any material respect or which requests the making of any changes in the Prospectus to make the statements in the Prospectus not misleading or which may impose upon the Company disclosure obligations that may have a material adverse effect on the Company, which notice the Company agrees to deliver promptly to the broker-dealer, the broker-dealer will suspend use of the Prospectus until the Company has notified the broker-dealer that delivery of the Prospectus may resume and have furnished copies of any amendment or supplement to the Prospectus to the broker-dealer. The undersigned understands that tenders of the Old Notes pursuant to any one of the procedures described under "The Exchange Offer-Procedures for Tendering" in the Prospectus and in the instructions hereto will constitute a binding agreement between the undersigned and the Company in accordance with the terms and subject to the conditions set forth herein and in the Prospectus. The undersigned recognizes that under certain circumstances set forth in the Prospectus under "The Exchange Offer-Conditions" the Company will not be required to accept for exchange any of the Old Notes tendered. Old Notes not accepted for exchange or withdrawn will be returned to the undersigned at the address set forth below unless otherwise indicated under "Special Delivery Instructions" below (or, in the case of Old Notes tendered by book-entry transfer, credited to an account maintained by the tendering holder at DTC). Unless otherwise indicated herein in the box entitled "Special Issuance Instructions" below, the undersigned hereby directs that the New Notes (and, if applicable, any substitute certificates representing Old Notes not exchanged or not accepted for exchange) be issued in the name(s) of the undersigned and be delivered to the undersigned at the address, or, in the case of book-entry transfer of Old Notes, be credited to the account at DTC shown above in the box entitled "Description of Old Notes". Old Notes accepted for exchange will not receive accrued interest thereon at the time of exchange. However, the New Notes will bear interest from the most recent date to which interest has been paid on the Old Notes, or if no interest has been paid on the Old Notes or the New Notes, from August 12, 2003. The undersigned will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby. All authority herein conferred or agreed to be conferred in this Letter of Transmittal shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, trustees in bankruptcy, legal representatives, successors and assigns of the undersigned. This tender may be withdrawn only in accordance with the procedures set forth in the Prospectus and in the instructions contained in this Letter of Transmittal. THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES" ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL AND DELIVERING SUCH OLD NOTES AND THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE. ANY FINANCIAL INSTITUTION THAT IS A PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY'S SYSTEMS MAY MAKE BOOK-ENTRY DELIVERY OF OLD NOTES BY CAUSING THE BOOK-ENTRY TRANSFER FACILITY TO TRANSFER SUCH OLD NOTES INTO THE EXCHANGE AGENT'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES. ALTHOUGH DELIVERY OF OLD NOTES MAY BE EFFECTED THROUGH BOOK-ENTRY TRANSFER AT THE BOOK-ENTRY TRANSFER FACILITY, THIS LETTER OF TRANSMITTAL WITH ALL REQUIRED SIGNATURE GUARANTEES AND ALL OTHER REQUIRED DOCUMENTS MUST BE TRANSMITTED TO AND RECEIVED BY THE EXCHANGE AGENT. PLEASE SIGN HERE (TO BE COMPLETED BY ALL TENDERING HOLDERS) (Complete accompanying Substitute Form W-9) x_________________________________ Date:_____________, 2004 x_________________________________ Date:_____________, 2004 Signature of Owner The above lines must be signed by the registered holder(s) exactly as their name(s) appear(s) on the Old Notes, or by person(s) authorized to become registered holder(s) by a properly completed bond power from the registered holder(s), a copy of which must be transmitted with this Letter of Transmittal. If Old Notes to which this Letter of Transmittal relate are held of record by two or more joint holders, then all such holders must sign above. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, then please set forth full title. See Instruction 4. Name(s):_______________________________________________________________ _______________________________________________________________ (Please Type or Print) Capacity:______________________________________________________________ Address:_______________________________________________________________ _______________________________________________________________ (Including Zip Code) Area Code and Telephone Number:________________________________________ Tax Identification or Social Security Number(s):_______________________ SIGNATURE GUARANTEED (If required by Instruction 4) Signature Guaranteed by an Eligible Institution:____________________________________________ (Authorized Signature) _______________________________________________________________________ (Title) _______________________________________________________________________ (Name of Firm) _______________________________________________________________________ (Address and Telephone Number) Dated: ____________, 2004 SPECIAL ISSUANCE INSTRUCTIONS (See Instructions 4 and 5) To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be issued in the name of and sent to someone other than the person or persons whose signature(s) are on this Letter Transmittal above Address Issue New Notes and/or Old Notes to: Name(s)_____________________________ Please Type or Print - -------------------------------------------------------------------------------- Please Type or Print Address_____________________________ ____________________________________ - -------------------------------------------------------------------------------- Zip Code Telephone Number:_______________________ Tax Identification or Social Security Number(s):______________ (Complete Substitute Form W-9) - -------------------------------------------------------------------------------- SPECIAL DELIVERY INSTRUCTIONS (See Instructions 4 and 5) To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be sent to someone other than the person or persons whose signature(s) appear(s) on this Letter Transmittal above or to such person or persons at an address other than that shown in the box above entitled Description of Old Notes*. Deliver New Notes and/or Old Notes to: Name(s):____________________________ Please Type or Print - -------------------------------------------------------------------------------- Please Type or Print Address:_______________________________________________________________ _______________________________________________________________________ - -------------------------------------------------------------------------------- Zip Code Telephone Number:___________________ Tax Identification or Social Security Number(s):______________ - -------------------------------------------------------------------------------- IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATE(S) FOR OLD NOTES AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER 1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES. This Letter of Transmittal must accompany, (i) all certificates representing Old Notes tendered pursuant to the Exchange Offer and (ii) all tenders of Old Notes made pursuant to the procedures for book-entry transfer set forth in the Prospectus under "The Exchange Offer--Procedures for Tendering". Certificates representing the Old Notes in proper form for transfer, or a timely confirmation of a book-entry transfer of such Old Notes into the Exchange Agent's account at DTC, as well as a properly completed and duly executed copy of this Letter of Transmittal (or facsimile thereof), with any required signature guarantees, a Substitute Form W-9 (or facsimile thereof) and any other documents required by this Letter of Transmittal must be received by the Exchange Agent at its address set forth herein on or before the Expiration Date. The method of delivery of this Letter of Transmittal, the Old Notes and all other required documents is at the election and risk of the tendering holders, but delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If such delivery is by mail, it is recommended that registered mail properly insured, with return receipt requested, be used. In all cases, sufficient time should be allowed to permit timely delivery. The Company will not accept any alternative, conditional or contingent tenders. Each tendering holder, by execution of a Letter of Transmittal (or facsimile thereof), waives any right to receive any notice of the acceptance of such tender. 2. GUARANTEED DELIVERY PROCEDURES. If a holder desires to tender Old Notes, but time will not permit a Letter of Transmittal, certificates representing the Old Notes to be tendered or other required documents to reach the Exchange Agent on or before the Expiration Date, or if the procedure for book-entry transfer cannot be completed on or prior to the Expiration Date, such holder's tender may be effected if: (a) such tender is made by or through an Eligible Institution (as defined below); (b) on or before the Expiration Date, the Exchange Agent has received a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form made available by the Company (or a facsimile thereof with receipt confirmed by telephone and an original delivered by guaranteed overnight courier) from such Eligible Institution setting forth the name and address of the holder of such Old Notes, the name(s) in which the Old Notes are registered and the principal amount of Old Notes tendered and stating that the tender is being made thereby and guaranteeing that, within three New York Stock Exchange trading days after the Expiration Date, certificates representing Old Notes to be tendered, in proper form for transfer, or a Book-Entry confirmation, as the case may be, together with a duly executed Letter of Transmittal and any other documents required by this Letter of Transmittal and the instructions hereto, will be deposited by such Eligible Institution with the Exchange Agent; and (c) a Letter of Transmittal (or a facsimile thereof) and certificates representing the Old Notes to be tendered, in proper form for transfer, or a Book-Entry Confirmation, as the case may be, and all other required documents are received by the Exchange Agent within three New York Stock Exchange trading days after the Expiration Date. 3. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Notes will be accepted only in integral multiples of $1,000. If less than all of the Old Notes evidenced by any Certificate submitted are to be tendered, fill in the principal amount of Old Notes which are to be tendered in the box entitled "Principal Amount of Old Notes Tendered (if less than all)". In such case, unless the holder completes the Special Issuance or Special Delivery Instructions set forth above, new certificate(s) for the remainder of the Old Notes that were evidenced by your old certificate(s) will only be sent to the holder of the Old Notes (or, in the case of Old Notes tendered pursuant to book-entry transfer, will only be credited to the account at DTC maintained by the holder of the Old Notes) promptly as practicable after the Expiration Date. All Old Notes represented by certificates or subject to a Book-Entry Confirmation delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. Any holder who has tendered Old Notes may withdraw the tender by delivering written notice of withdrawal (which may be sent by facsimile) to the Exchange Agent at its address set forth herein prior to the Expiration Date. Any such notice of withdrawal must specify the name of the person having tendered the Old Notes to be withdrawn, identify the Old Notes to be withdrawn (including the principal amount of such Old Notes) and (where certificates for Old Notes have been transmitted) specify the name in which such Old Notes are registered, if different from that of the withdrawing holder. If certificates for Old Notes have been delivered or otherwise identified to the Exchange Agent, then, prior to the withdrawal of such certificates, the withdrawing holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an Eligible Institution unless such holder is an Eligible Institution. If Old Notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Old Notes and otherwise comply with the procedures of such facility. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Old Notes which have been tendered for exchange but which are not exchanged for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Old Notes tendered by book-entry transfer into the Exchange Agent's account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures described above, such Old Notes will be credited to the holder's account maintained with such Book-Entry Transfer Facility for the Old Notes) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Old Notes may be retendered following one of the procedures described in the Prospectus under "The Exchange Offer--Procedures for Tendering". 4. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed by the registered holder of the Old Notes tendered herewith, the signature must correspond exactly with the name as written on the face of the certificates without any alteration, enlargement or change whatsoever. If any tendered Old Notes are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal. If any tendered Old Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are names in which tendered Old Notes are registered. If this Letter of Transmittal is signed by the registered holder, and New Notes are to be issued and any untendered or unaccepted principal amount of Old Notes are to be reissued or returned to the registered holder, then the registered holder need not and should not endorse any tendered Old Notes nor provide a separate bond power. In any other case, the registered holder must either properly endorse the Old Notes tendered or transmit a properly completed separate bond power with this Letter of Transmittal (in either case, executed exactly as the name of the registered holder appears on such Old Notes), with the signature on the endorsement or bond power guaranteed by an Eligible Institution, unless such certificates or bond powers are signed by an Eligible Institution. If this Letter of Transmittal or any Old Notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing and submit with this Letter of Transmittal evidence satisfactory to the Company of their authority to so act. The signatures on this Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed unless the Old Notes surrendered for exchange pursuant thereto are tendered (i) by a registered holder (which term, for purposes of this document, shall include any participant in DTC whose name appears on the register of holders maintained by the Company as owner of the Old Notes) who has not completed the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" in this Letter of Transmittal or (ii) for the account of an Eligible Institution. In the event that the signatures in this Letter of Transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, such guarantees must be by a commercial bank or trust company located or having an office or correspondent in the United States, or by a member firm of a national securities exchange or of the National Association of Securities Dealers, Inc., or by a member of a signature medallion program such as "STAMP" (any of the foregoing being referred to herein as an "Eligible Institution"). If Old Notes are registered in the name of a person other than the signer of this Letter of Transmittal, the Old Notes surrendered for exchange must be endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange, in satisfactory form as determined by the Company in its sole discretion, duly executed by the registered holder with the signature thereon guaranteed by an Eligible Institution. 5. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering holders of Old Notes should indicate in the applicable box the name and address or account at DTC to which New Notes issued pursuant to the Exchange Offer and/or substitute Old Notes for principal amounts not tendered or not accepted for exchange are to be issued, sent or deposited if different from the name and address or account of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification or Social Security number of the person named must also be indicated. If no such instructions are given, any New Notes will be issued in the name of, and delivered to, the name and address (or account at DTC, in the case of any tender by book-entry transfer) of the person signing this Letter of Transmittal, and any Old Notes not accepted for exchange will be returned to the name and address (or account at DTC, in the case of any tender by book-entry transfer) of the person signing this Letter of Transmittal. 6. BACKUP FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM W- Under the federal income tax laws, payments that may be made by the Company on account of New Notes issued pursuant to the Exchange Offer maybe subject to backup withholding at the rate of 31%. In order to avoid such backup withholding, each tendering holder should complete and sign the Substitute Form W-9 included in this Letter of Transmittal and either (a) provide the correct taxpayer identification number ("TIN") and certify, under penalties of perjury, that the TIN provided is correct and that (i) the holder has not been notified by the Internal Revenue Service (the "IRS") that the holder is subject to backup withholding as a result of failure to report all interest or dividends or (ii) the IRS has notified the holder that the holder is no longer subject to backup withholding; or (b) provide an adequate basis for exemption. If the tendering holder has not been issued a TIN and has applied for one, or intends to apply for one in the near future, such holder should write "Applied For" in the space provided for the TIN in Part I of the Substitute FormW-9, sign and date the Substitute Form W-9 and sign the Certificate of Payee Awaiting Taxpayer Identification Number. If "Applied For" is written in Part I, the Company (or the Paying Agent under the Indenture governing the New Notes) will retain 31% of payments made to the tendering holder during the 60-day period following the date of the Substitute Form W-9. If the holder furnishes the Exchange Agent or the Company with its TIN within 60 days after the date of the Substitute Form W-9, the Company (or Paying Agent) will remit such amounts retained during the 60-day period to the holder and no further amounts shall be retained or withheld from payments made to the holder thereafter. If, however, the holder has not provided the Exchange Agent or the Company with its TIN within such 60-day period, the Company (or the Paying Agent) will remit such previously retained amounts to the IRS as backup withholding. In general, if a holder is an individual, the taxpayer identification number is the Social Security Number of such individual. If the Exchange Agent or the Company is not provided with the correct taxpayer identification number, the holder may be subject to a U.S. $50 penalty imposed by the IRS. Certain holders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, such holder must submit a statement (generally, IRS Form W-8), signed under penalties of perjury, attesting to that individual's exempt status. Such statements can be obtained from the Exchange Agent. For further information concerning backup withholding and instructions for completing the Substitute Form W-9 (including how to obtain a taxpayer identification number if you do not have one and how to complete the Substitute Form W-9 if Old Notes are registered in more than one name), consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the "Guidelines") enclosed herewith. Failure to complete the Substitute Form W-9 will not, by itself, cause Old Notes to be deemed invalidly tendered, but may require the Company (or the Paying Agent) to withhold 31% of the amount of any payments made on account of the New Notes. Backup withholding is not an additional federal income tax. Rather, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained. 7. TRANSFER TAXES. The Company will not pay transfer taxes, if any, applicable to the transfer of Old Notes to it or its order pursuant to the Exchange Offer. If New Notes and/or substitute Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Old Notes tendered herewith, or if tendered Old Notes are registered in the name of any person other than the person signing this Letter of Transmittal, or if a transfer tax is imposed for any reason, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering holder. Except as provided in this Instruction 7, it will not be necessary for transfer tax stamps to be affixed to the Old Notes specified in this Letter of Transmittal. 8. WAIVER OF CONDITIONS. The Company reserves the absolute right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus. 9. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or contingent tenders of Old Notes or transmittals of this Letter of Transmittal will be accepted. All tendering holders of Old Notes, by execution of this Letter of Transmittal, shall waive any right to receive notice of the acceptance of their Old Notes for exchange. Neither the Company, the Exchange Agent nor any other person is obligated to give notice of defects or irregularities in any tender, nor shall any of them incur any liability for failure to give any such notice. 10. INADEQUATE SPACE. If the space provided herein is inadequate, the aggregate principal amount of Old Notes being tendered and the certificate number or numbers (if applicable) should be listed on a separate schedule attached hereto and separately signed by all parties required to sign this Letter of Transmittal. 11. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. If any certificate has been lost, mutilated, destroyed or stolen, the holder should promptly notify Marsha Rice at Wachovia Bank, National Association, telephone no. (704) 490-7413. The holder will then be instructed as to the steps that must be taken to replace the certificate. This Letter of Transmittal and related documents cannot be processed until the Old Notes have been replaced. 12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number indicated above. 13. VALIDITY OF TENDERS. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of tendered Old Notes will be determined by the Company, in its sole discretion, which determination will be final and binding. The Company reserves the right to reject any and all Old Notes not validly tendered or any Old Notes, the Company's acceptance of which may, in the opinion of the Company or counsel to the Company, be unlawful. The Company also reserves the right to waive any conditions of the Exchange Offer or defects or irregularities in tenders of Old Notes as to any ineligibility of any holder who seeks to tender Old Notes in the Exchange Offer, whether or not similar conditions or irregularities are waived in the case of other holders. Any such waiver shall not constitute a general waiver of the conditions of the Exchange Offer by the Company. The interpretation of the terms and conditions of the Exchange Offer (including this Letter of Transmittal and the instructions hereto) by the Company shall be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Old Notes must be cured within such time, as the Company shall determine. The Company will use reasonable efforts to give notification of defects or irregularities with respect to tenders of Old Notes, but neither the Company nor the Exchange Agent shall incur any liability for failure to give such notification. 14. ACCEPTANCE OF TENDERED OLD NOTES AND ISSUANCE OF NEW NOTES; RETURN OF OLD NOTES. Subject to the terms and conditions of the Exchange Offer, the Company will accept for exchange all validly tendered Old Notes as soon as practicable after the Expiration Date and will issue New Notes therefor as soon as practicable thereafter. For purposes of the Exchange Offer, the Company shall be deemed to have accepted tendered Old Notes when, as and if the Company has given written and oral notice thereof to the Exchange Agent. If any tendered Old Notes are not exchanged pursuant to the Exchange Offer for any reason, such unexchanged Old Notes will be returned, without expense, to the name and address shown above or, if Old Notes have been tendered by book-entry transfer, to the account at DTC shown above, or at a different address or account at DTC as may be indicated under "Special Issuance Instructions" or "Special Delivery Instructions". TO BE COMPLETED BY ALL TENDERING HOLDERS (See Instruction 6) PAYOR'S NAME SUBSTITUTE FORM W-9 PART I - TAXPAYER IDENTIFICATION NUMBER Department of the Treasury Enter your taxpayer identification number -------------------------- Internal Revenue Service in the appropriate box. For most Social Security Number individuals, this is your social security number. If you do not have number, see how OR to obtain a "TIN" in the enclosed Guidelines. -------------------------- NOTE: If the account is in more than one Employer Identification Number name, see the chart on page 2 of the enclosed Guidelines to determine what number to give. Part II - FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING (SEE ENCLOSED GUIDELINES) Payor's Request for Taxpayer CERTIFICATION UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT: Identification Number (TIN) and Certification Number (1) the number shown on this form is my correct Taxpayer Identification (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding either because I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest backup dividends or the IRS has notified me that I am no longer subject to withholding.
Date________________ Signature______________________ Certificate Guidelines --You must cross out Item (2) of the above certification if you have been notified by the IRS that you are subject to backup withholding because of under-reporting of interest on dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding, you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out Item 2. CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER I certify, under penalties of perjury, that a Taxpayer Identification Number has not been issued to me and that I mailed or delivered an application to receive a Taxpayer Identification Number to the appropriate Internal Revenue Service Center or Social Security Administration Office (or I intend to mail or deliver an application in the near future). I understand that if I do not provide a Taxpayer Identification Number to the payor, 31% of all payments made to me on account of the New Notes shall be retained until I provide a Taxpayer Identification Number to the payor and that, if I do not provide my Taxpayer Identification Number within 60 days, such retained amounts shall be remitted to the Internal Revenue Service as a backup withholding and 31% of all reportable payments made to me thereafter will be withheld and remitted to the Internal Revenue Service until I provide a Taxpayer Identification Number. Signature__________________ Date__________ NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUPWITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE NEW NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. EX-99.3 104 file103.txt FORM OF NOTICE OF GUARANTEED DELIVERY ARMOR HOLDINGS, INC. NOTICE OF GUARANTEED DELIVERY FOR TENDER OF ANY AND ALL OUTSTANDING 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 IN EXCHANGE FOR NEW 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 This Notice of Guaranteed Delivery, or one substantially equivalent to this form, must be used by registered holders of outstanding 8 1/4% Senior Subordinated Notes due 2013 (the "Old Notes") of Armor Holdings, Inc., a Delaware corporation (the "Company"), who wish to tender their Old Notes for an equal principal amount of new 8 1/4% Senior Subordinated Notes due 2013 (the "New Notes") of the same maturity that have been registered under the Securities Act of 1933, as amended (the "Securities Act") if (i) the Old Notes, a duly completed and executed letter of transmittal (the "Letter of Transmittal") and all other required documents cannot be delivered to Wachovia Bank, National Association (the "Exchange Agent") prior to 5:00 P.M., New York City time, on , 2004, or such later date and time to which the exchange offer may be extended (the "Expiration Date") or (ii) the procedures for delivery of the Old Notes being tendered by book-entry transfer, together with a duly completed and executed Letter of Transmittal, cannot be completed on or prior to 5:00 P.M., New York City time, on the Expiration Date. This Notice of Guaranteed Delivery may be delivered by hand, overnight courier or mail, or transmitted by facsimile transmission (receipt confirmed by telephone and an original delivered by guaranteed overnight delivery), to the Exchange Agent. See "The Exchange Offer-Procedures for Tendering" and " -- Guaranteed Delivery Procedures" in the Prospectus. The Company has the right to reject a tender of Old Notes made pursuant to the guaranteed delivery procedures unless the registered holder using the guaranteed delivery procedure submits either (a) the Old Notes tendered thereby, in proper form for transfer, or (b) confirmation of book-entry transfer in the manner set forth in the Prospectus, in either case together with one or more properly completed and duly executed Letter(s) of Transmittal (or facsimile thereof) and any other required documents by 5:00 P.M., New York City time, on the third New York Stock Exchange trading day following the Expiration Date. Capitalized terms used but not defined herein have the meanings assigned to them in the Prospectus. The Exchange Agent for The Exchange Offer Is: WACHOVIA BANK, NATIONAL ASSOCATION
By Registered or Certified Mail Facsimile Transmissions: By Hand Or Overnight Delivery
(Eligible Institutions Only) Wachovia Bank, National Association -------------- Wachovia Bank, National Association Corporate Trust Operations Corporate Trust Operations 1525 West W.T. Harris Boulevard 1525 West W.T. Harris Boulevard Charlotte, North Carolina 28288 Charlotte, North Carolina 28262 Attn: Marsha Rice Attn: Marsha Rice
Confirm By Telephone: --------------------- For Information Call: Wachovia Bank, National Association Corporate Trust Operations 1525 West W.T. Harris Boulevard Charlotte, North Carolina 28288 Attn.: Marsha Rice Telephone # (704) 490-7413 Fax # (704) 590-7628 ---------------------- Delivery of this Notice Of Guaranteed Delivery to an address other than as set forth above or transmission of this Notice of Guaranteed Delivery via facsimile to a number other than as set forth above will not constitute a valid delivery. THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL. Ladies and Gentlemen: The undersigned hereby tenders to the Company, upon the terms and subject to the conditions set forth in Prospectus dated , 2004 (as the same may be amended or supplemented from time to time, the "Prospectus"), and the related Letter of 2 Transmittal (which together constitute the "Exchange Offer"), receipt of which is hereby acknowledged, the aggregate principal amount of the Old Notes set forth below pursuant to the guaranteed delivery procedures set forth in the Prospectus under the caption "The Exchange Offer-Guaranteed Delivery Procedures" and in Instruction 2 to the Letter of Transmittal. 3 DESCRIPTION OF SECURITIES TENDERED
Aggregate Name and Address of Certificate Principal Registered Holder as it Number(s) of Old Amount Principal Appears on the Old Old Notes Maturity of Old Represented by Amount Old Notes (Please Print) Tendered Notes Tendered Old Notes Notes Tendered* - -------------------- --------------------- --------------------- --------------------- --------------------- - --------------------- --------------------- --------------------- --------------------- --------------------- - --------------------- --------------------- --------------------- --------------------- --------------------- - --------------------- --------------------- --------------------- --------------------- --------------------- - --------------------- --------------------- --------------------- --------------------- ---------------------
*Must be tendered only in integral multiples of $1,000. If the Old Notes will be tendered by book-entry transfer, provide the following information: DTC Account Number: _________________________________ All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. PLEASE SIGN HERE X_______________________ Date:____________________, 2004 X_______________________ Date:____________________, 2004 Signature(s) of Owner(s) or Authorized Signatory Area Code and Telephone Number:_______________________ 4 Must be signed by the holder(s) of the Old Notes as their name(s) appear(s) on certificates of the Old Notes or on a security position listing, or by person(s) authorized to become registered holder(s) by endorsement and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below. Please print name(s) and address(es) Name(s): ---------------------------------------------------- ---------------------------------------------------- ---------------------------------------------------- ---------------------------------------------------- Capacity: ---------------------------------------------------- ---------------------------------------------------- ---------------------------------------------------- ---------------------------------------------------- Address(es): ---------------------------------------------------- ---------------------------------------------------- ---------------------------------------------------- ---------------------------------------------------- 5 THE FOLLOWING GUARANTEE MUST BE COMPLETED GUARANTEE OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm or other entity identified in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor institution, " including (as such terms are defined therein): (i) a bank; (ii) a broker, dealer, municipal securities dealer, municipal securities broker, government securities dealer, government securities broker; (iii) a credit union; (iv) a national securities exchange, registered securities association or clearing agency; or (v) a savings association that is a participant in a Securities Transfer Association recognized program (each of the foregoing being referred to as an "Eligible Institution"), hereby guarantees to deliver to the Exchange Agent, at one of its addresses set forth above, either (a) the Old Notes tendered hereby, in proper form for transfer, or (b) confirmation of the book-entry transfer of such Old Notes to the Exchange Agent's account at The Depository Trust Company ("DTC") maintained for such purpose, pursuant to the procedures for book-entry transfer set forth in the Prospectus, in either case together with one or more properly completed and duly executed Letter(s) of Transmittal (or facsimile thereof) and any other required documents by 5:00 P.M., New York City time, on the third New York Stock Exchange trading day following the Expiration Date. The undersigned acknowledges that it must deliver the Letter(s) of Transmittal and the Old Notes tendered hereby to the Exchange Agent within the time period set forth above and that failure to do so could result in a financial loss to the undersigned. Name of Firm:____________________________ ______________________________ (Authorized Signature) Address: ____________________________ Title:________________________ ___________________________________ Name:_________________________ (zip code) (Please type or print) Area Code and Telephone Number: _______________________ Date:_________________________ NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR OLD NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL. 6 EX-99.4 105 file104.txt FORM OF INSTRUCTION TO BOOK-ENTRY TRANSFER INSTRUCTION TO BOOK-ENTRY TRANSFER PARTICIPANT FROM OWNER OF ARMOR HOLDINGS, INC. 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 To Participant of the Book-Entry Transfer Facility: The undersigned hereby acknowledges receipt of the Prospectus dated ______, 2004 (the "Prospectus"), of Armor Holdings, Inc. (the "Company") and a related Letter of Transmittal (which together constitute the "Exchange Offer"). Capitalized terms used but not defined herein have the meanings given to such terms in the Prospectus. This will instruct you, the Book-Entry Transfer Facility Participant, as to the action to be taken by you relating to the Exchange Offer with respect to the Old Notes held by you for the account of the undersigned. The aggregate principal amount of the Old Notes held by you for the account of the undersigned is (fill in amount): $__________ of the 8 1/4% Senior Subordinated Notes due 2013 With respect to the Exchange Offer, the undersigned hereby instructs you (check appropriate statement): A. _____ To TENDER the following Old Notes held by you for the account of the undersigned (insert principal amount of Old Notes to be tendered); $_________ (1) of the 8 1/4% Senior Subordinated Notes due 2013, and not to tender other Old Notes of such maturity, if any, held by you for the account of the undersigned; OR B. _____ NOT to tender any Old Notes held by you for the account of the undersigned. - ------------------------------- (1) Must be tendered only in integral multiples of $1,000. If the undersigned instructs you to tender the Old Notes held by you for the account of the undersigned, it is understood that you are authorized to make, on behalf of the undersigned (and the undersigned by its signature below, hereby authorizes you to make), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including but not limited to the representations that (i) it is not an affiliate of the Company or any of its subsidiaries, or, if the undersigned is an affiliate of the Company or any of its subsidiaries, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (ii) the New Notes are being acquired in the ordinary course of business of the person receiving such New Notes, whether or not such person is the holder, (iii) the undersigned has not entered into an arrangement or understanding with any other person to participate in the distribution (within the meaning of the Securities Act) of the New Notes, (iv) the undersigned is not a broker-dealer who purchased the Old Notes for resale pursuant to an exemption under the Securities Act, and (v) the undersigned will be able to trade New Notes acquired in the Exchange Offer without restriction under the Securities Act. If the undersigned is a broker-dealer (whether or not it is also an "affiliate") that will receive New Notes for its own account pursuant to the Exchange Offer, it represents that such Old Notes to be exchanged were acquired by it as a result of market-making activities or other trading activities, and it acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes. By acknowledging that it will deliver and by delivering a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. SIGN HERE Name of Beneficial Owner(s):___________________________________________________ Signature(s):__________________________________________________________________ Name(s) (please print): _______________________________________________________ Address: ______________________________________________________________________ (zip code) Telephone Number: _____________________________________________________________ (area code) Taxpayer Identification or Social Security Number:_____________________________ Date:__________________________________________________________________________ 2 EX-99.5 106 file105.txt FORM OF LETTER TO CLIENTS ARMOR HOLDINGS, INC. OFFER TO EXCHANGE ALL OUTSTANDING 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 FOR 8 1/4% SENIOR SUBORDINATED NOTES DUE 2013 WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 PURSUANT TO THE PROSPECTUS DATED , 2004 To Our Clients: We are enclosing herewith a Prospectus dated , 2004 (the "Prospectus"), of Armor Holdings, Inc. (the "Company") and a Letter of Transmittal (which together constitute the "Exchange Offer") relating to the offer by the Company to exchange up to $150,000,000 aggregate principal amount of the Company's 8 1/4% Senior Subordinated Notes due 2013 (the "New Notes"), pursuant to an offering registered under the Securities Act of 1933, as amended (the "Securities Act"), for an equal principal amount of the Company's issued and outstanding 8 1/4% Senior Subordinated Notes due 2013 (the "Old Notes"), upon the terms and subject to the conditions set forth in the Exchange Offer. Capitalized terms used but not defined herein have the meanings given to such terms in the Prospectus. PLEASE NOTE THAT THE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2004, UNLESS EXTENDED. The Exchange Offer is not conditioned upon any minimum number of Old Notes being tendered. We are the participants in the book-entry transfer facility for Old Notes held by us for your account. A tender of such Old Notes can be made only by us as the participant in the book-entry transfer facility and pursuant to your instructions. The Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Old Notes held by us for your account. We request instructions as to whether you wish to tender any or all of the Old Notes held by us for your account (you may tender less than all of such Old Notes and/or tender less than the full principal amount of any given Old Note, provided that the amount tendered is in integral multiples of $1,000) pursuant to the terms and conditions of the Exchange Offer. We also request that you confirm that we may on your behalf make the representations contained in the Letter of Transmittal that are to be made with respect to you as beneficial owner. Pursuant to the Letter of Transmittal, each holder (a "Holder") of Old Notes will represent to the Company that (i) it is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company; (ii) it is not a broker-dealer tendering Old Notes acquired for its own account directly from the Company; (iii) any New Notes to be received by it will be acquired in the ordinary course of its business; and (iv) it is not engaged in, and does not intend to engage in, a distribution of such New Notes and has no arrangement or understanding to participate in a 1 distribution of New Notes. If a Holder of Old Notes is engaged in or intends to engage in a distribution of New Notes or has any arrangement or understanding with respect to the distribution of New Notes to be acquired pursuant to the Exchange Offer, such Holder may not rely on the applicable interpretations of the staff of the Securities and Exchange Commission and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. Very truly yours, 2 EX-99.6 107 file106.txt GUIDELINES FOR CERTIFICATION OF TAXPAYER ID GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER. Social security numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer.
GIVE THE SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: NUMBER OF 1. An individual's account The individual 2. Two or more individuals (joint The actual owner of the account or, if combined the first account) funds, individual on the account (1) 3. Custodian account of a minor The minor (2) (Uniform Gift to Minors Act) 4. a. The usual revocable savings trust account The grantor-trustee (1) (grantor is also trustee) b. So-called trust account that is not a legal The actual owner (1) or valid trust under State Law 5. Sole Proprietorship The owner (3) FOR THIS TYPE OF ACCOUNT: GIVE THE EMPLOYER IDENTIFICATION NUMBER OF: 6. A valid trust, estate, or pension trust The legal entity (Do not furnish the identifying of the number the account personal representative or trustee unless legal entity itself is not designated in the title) (4) 7. Corporate account The corporation 8. Partnership account held in the name of The partnership the business 9. Association, club, religious, charitable, The organization or other tax-exempt organization 10. A broker or registered nominee The broker or nominee 11. Account with the Department of Agriculture The public entity in the name of a public entity (such as a State or local government, school district, or prison) that receives agricultural program payments
(1) List first and circle the name of the person whose number you furnish. (2) Circle the minor's name and furnish the minor's social security number. (3) Show the name of the owner. The name of the business or the "doing business as" name may also be entered. Either the social security number or the employer identification number may be used. (4) List first and circle the name of the legal trust, estate, or pension trust. Note: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER OF SUBSTITUTE FORM W-9 OBTAINING A NUMBER If you don't have a taxpayer identification number ("TIN") or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from backup withholding on all dividend and interest payments and on broker transactions include the following: o A corporation. o A financial institution. o An organization exempt from tax under section 501(a), or an individual retirement plan, or a custodian account under section 403(b)(7). o The United States or any agency or instrumentality thereof. o A State, the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof. o A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. o An international organization or any agency, or instrumentality thereof. 2 o A registered dealer in securities or commodities registered in the United States or a possession of the United States. o A real estate investment trust. o A common trust fund operated by a bank under section 584(a). o An exempt charitable remainder trust, or a non-exempt trust described in section 4947(a)(1). o An entity registered at all times under the Investment Company Act of 1940. o A foreign central bank of issue. Payments of dividends and patronage dividends not generally subject to backup withholding including the following: o Payments to nonresident aliens subject to withholding under section 1441. o Payments to partnerships not engaged in a trade or business in the United States and which have at least one nonresident partner. o Payments of patronage dividends where the amount received is not paid in money. o Payments made by certain foreign organizations. o Payments made to a nominee. Payments of interest not generally subject to backup withholding include the following: o Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct taxpayer identification number to the payer. o Payments of tax-exempt interest (including the exempt-interest dividends under section 852). o Payments described in section 6049(b)(5) to nonresident aliens. o Payments on tax-free covenant bonds under section 1451. o Payments made by certain foreign organizations. o Payments described in section 6049(b)(6) to nonresident aliens. o Payments of tax-exempt interest (including the exempt-interest dividends under section 859). 3 o Payments described in section 6049(b)(7) to resident aliens. o Payments on tax-free covenant bonds under section 1466. o Payments made to a nominee. Exempt payees described above should file the Substitute Form W-9 to avoid possible erroneous backup withholding. Complete the Substitute Form W-9 as follows: ENTER YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ACROSS THE FACE OF THE FORM, SIGN, DATE, AND RETURN THE FORM TO THE PAYER. Certain payments other than interest, dividends, and patronage dividends that are not subject to information reporting are also not subject to backup withholding. For details, see the sections 6041, 6041A(a), 6042, 6044, 6045, 6049, 6050A and 6050N and the regulations thereunder. PRIVACY ACT NOTICE. Section 6109 requires most recipients of dividend, interest, or other payments to give taxpayer identification numbers to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes and to help verify the accuracy of tax reforms. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) Penalty for Failure to Furnish Taxpayer Identification Number. If you fail to furnish your correct taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) Penalty for False Information With Respect to Withholding. If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (3) Criminal Penalty for Falsifying Information. Willfully falsifying certifications or affirmations may subject you to criminal penalties, including fines and/or imprisonment. (4) Misuse of Taxpayer Identification Numbers. If the payer discloses or uses taxpayer identification numbers in violation of Federal law, the payer may be subject to civil and criminal penalties. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. 4 EX-99.7 108 file107.txt FORM OF EXCHANGE AGENT AGREEMENT __________ __, 2004 EXCHANGE AGENT AGREEMENT Wachovia Bank, National Association One World Trade Center Suite 4711 New York, New York 10048 Attention: Corporate Trust Group Ladies and Gentlemen: Armor Holdings, Inc. a Delaware corporation (the "Company") proposes to make an offer (the "Exchange Offer") to exchange all of its outstanding 8 1/4% Senior Subordinated Notes due 2013 (the "Old Securities") for its 8 1/4% Senior Subordinated Notes due 2013 (the "New Securities"). The terms and conditions of the Exchange Offer as currently contemplated are set forth in a prospectus, dated ___________ (the "Prospectus"), proposed to be distributed to all record holders of the Old Securities. The Old Securities and the New Securities are collectively referred to herein as the "Securities". The Company hereby appoints Wachovia Bank, National Association to act as exchange agent (the "Exchange Agent") in connection with the Exchange Offer. References hereinafter to "you" shall refer to Wachovia Bank, National Association. The Exchange Offer is expected to be commenced by the Company on or about _____________. The Letter of Transmittal accompanying the Prospectus (or in the case of book-entry securities, the Automated Tender Offer Program ("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used by the holders of the Old Securities to accept the Exchange Offer and contains instructions with respect to the delivery of certificates for Old Securities tendered in connection therewith. The Exchange Offer shall expire at 5:00 p.m., New York City time, on _________ or on such subsequent date or time to which the Company may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set forth in the Prospectus, the Company expressly reserves the right to extend the Exchange Offer from time to time and may extend the Exchange Offer by giving oral (promptly confirmed in writing) or written notice to you before 9:00 a.m., New York City time, on the business day following the previously scheduled Expiration Date. The Company expressly reserves the right to amend or terminate the Exchange Offer, and not to accept for exchange any Old Securities not theretofore accepted for exchange, upon the occurrence of any of the conditions of the Exchange Offer specified in the Prospectus under the caption "The Exchange Offer - -- Conditions." The Company will give oral (promptly confirmed in writing) or written notice of any amendment, termination or nonacceptance to you as promptly as practicable. In carrying out your duties as Exchange Agent, you are to act in accordance with the following instructions: 1. You will perform such duties and only such duties as are specifically set forth in the section of the Prospectus captioned "The Exchange Offer" or as specifically set forth herein; provided, however, that in no way will your general duty to act in good faith be discharged by the foregoing. 2. You will establish a book-entry account with respect to the Old Securities at The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in the Book-Entry Transfer Facility's systems may make book-entry delivery of the Old Securities by causing the Book-Entry Transfer Facility to transfer such Old Securities into your account in accordance with the Book-Entry Transfer Facility's procedure for such transfer. In every case, however, a Letter of Transmittal (or a manually executed facsimile thereof), or an Agent's Message, properly completed and duly executed with any required signature guarantees and any other required documents must be transmitted to and received by you prior to the Expiration Date or the guaranteed delivery procedures described in the Prospectus must be complied with. The term "Agent's Message" means a message transmitted by a participant of the Book Entry Transfer Facility to and received by The Depository Trust Company and forming a part of a confirmation for book entry transfer, which states that such Book Entry Transfer Facility has received an express acknowledgment from the participant in such Book Entry Transfer Facility tendering the Old Securities that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Company may enforce such agreement against such participant. 3. You are to examine each of the Letters of Transmittal and certificates for Old Securities (or confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility) and any other documents delivered or mailed to you by or for holders of the Old Securities to ascertain whether: (i) the Letters of Transmittal and any such other documents are duly executed and properly completed in accordance with instructions set forth therein; and (ii) the Old Securities have otherwise been properly tendered. In each case where the Letter of Transmittal or any other document has been improperly completed or executed or any of the certificates for Old Securities are not in proper form for transfer or some other irregularity in connection with the acceptance of the Exchange Offer exists, you will endeavor to inform the presenters of the need for fulfillment of all requirements and to take any other action as may be reasonably - 2 - necessary or advisable to cause such irregularity to be corrected and to advise such persons of the appropriate means of resolving the same. 4. Determination of questions as to the proper completion or execution of the Letters of Transmittal, or as to the proper form for transfer of the Old Securities or as to any other irregularity in connection with the submission of Letters of Transmittal and/or Old Securities and other documents in connection with the Exchange Offer, shall be made by the Officers (as defined below) of, or counsel for, the Company at their written instructions or oral direction confirmed by facsimile. Any determination made by the Company on such questions shall be final and binding. With the approval of the Chief Executive Officer, Chief Financial Officer, President, any Vice President, Treasurer, Controller or Secretary of the Company (such approval, if given orally, to be promptly confirmed in writing) or any other party designated in writing, by such an officer (collectively, the "Officers"), you are authorized to waive any irregularities in connection with any tender of Old Securities pursuant to the Exchange Offer. 5. Tenders of Old Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer -- Procedures for Tendering", and Old Securities shall be considered properly tendered to you only when tendered in accordance with the procedures set forth therein. Notwithstanding the provisions of this Section 5, Old Securities which the Officers of the Company shall approve as having been properly tendered shall be considered to be properly tendered (such approval, if given orally, shall be promptly confirmed in writing). 6. You shall advise the Company with respect to any Old Securities received subsequent to the Expiration Date and accept its instructions with respect to disposition of such Old Securities. 7. You shall accept tenders: (a) in cases where the Old Securities are registered in two or more names only if signed by all named holders; (b) in cases where the signing person (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when proper evidence of his or her authority so to act is submitted; and (c) from persons other than the registered holder of Old Securities, provided that customary transfer requirements, including payment of any applicable transfer taxes, are fulfilled. You shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities to the - 3 - registrar for split-up and return any untendered Old Securities to the holder (or such other person as may be designated in the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer. 8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company will notify you (such notice, if given orally, to be promptly confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old Securities properly tendered and you, on behalf of the Company, will exchange such Old Securities for New Securities and cause such Old Securities to be cancelled. Delivery of New Securities will be made on behalf of the Company by you at the rate of $1,000 principal amount of New Securities for each $1,000 principal amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be promptly confirmed in writing) of acceptance of said Old Securities by the Company; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by you of certificates for such Old Securities (or confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof) with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof. 9. Tenders pursuant to the Exchange Offer are irrevocable, except that, subject to the terms and upon the conditions set forth in the Prospectus and the Letter of Transmittal, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date. 10. The Company shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by the Company not to exchange any Old Securities tendered shall be given (if given orally, to be promptly confirmed in writing) by the Company to you. 11. If, pursuant to the Exchange Offer, the Company does not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer - Conditions" or otherwise, you shall as soon as practicable after the expiration or termination of the Exchange Offer return those certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in your possession, to the persons who deposited them. 12. All certificates for reissued Old Securities, unaccepted Old Securities or for New Securities shall be forwarded by first-class mail. - 4 - 13. You are not authorized to pay or offer to pay any concessions, commissions or solicitation fees to any broker, dealer, bank or other persons or to engage or utilize any person to solicit tenders. 14. As Exchange Agent hereunder you: (a) shall not be liable for any action or omission to act unless the same constitutes your own gross negligence, willful misconduct or bad faith, and in no event shall you be liable to a securityholder, the Company or any third party for special, indirect or consequential damages, or lost profits, arising in connection with this Agreement. (b) shall have no duties or obligations other than those specifically set forth herein or as may be subsequently agreed to in writing between you and the Company; (c) will be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any of the certificates or the Old Securities represented thereby deposited with you pursuant to the Exchange Offer, and will not be required to and will make no representation as to the validity, value or genuineness of the Exchange Offer; (d) shall not be obligated to take any legal action hereunder which might in your judgment involve any expense or liability, unless you shall have been furnished with indemnity satisfactory to you; (e) may conclusively rely on and shall be protected in acting in reliance upon any certificate, instrument, opinion, notice, letter, telegram or other document or security delivered to you and believed by you to be genuine and to have been signed or presented by the proper person or persons; (f) may act upon any tender, statement, request, document, agreement, certificate or other instrument whatsoever not only as to its due execution and validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which you shall in good faith believe to be genuine or to have been signed or presented by the proper person or persons; (g) may conclusively rely on and shall be protected in acting upon written or oral instructions from any authorized officer of the Company; (h) may consult with counsel of your selection with respect to any questions relating to your duties and responsibilities and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by you hereunder in good faith and in accordance with the advice or opinion of such counsel; and - 5 - (i) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to the wisdom of making such tender or as to the market value or decline or appreciation in market value of any Old Securities. 15. You shall take such action as may from time to time be requested by the Company (and such other action as you may deem appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms as may be approved from time to time by the Company, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the Exchange Offer, provided that such information shall relate only to the procedures for accepting (or withdrawing from) the Exchange Offer. The Company will furnish you with copies of such documents on your request. You are to mail the Prospectus and the Tender Documents (as defined below) to all of the holders of Old Securities and participants on the day that you are notified by the Company that the Registration Statement has become effective under the Securities Act, or as soon as practicable thereafter, and to make subsequent mailings thereof to any persons who become holders of Old Securities prior to the Expiration Date and to any persons as may from time to time be requested by the Company. The term "Tender Documents" means the Letter of Transmittal, Notice of Guaranteed Delivery, the form of letter to brokers and the form of letter to clients to be used by holders of Old Securities in order to receive New Securities pursuant to the Exchange Offer. All mailings pursuant to this Section 15 shall be by first-class mail, postage prepaid, unless otherwise specified by the Company. All other requests for information relating to the Exchange Offer shall be directed to the Company, Attention: Phil Baratelli. 16. You shall advise by facsimile transmission Phil Baratelli, the Controller and Treasurer of the Company (at the facsimile number (904) 741-5403), and such other person or persons as the Company may request, daily (and more frequently during the week immediately preceding the Expiration Date if requested) up to and including the Expiration Date, as to the number of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by you pursuant to this Agreement, separately reporting and giving cumulative totals as to items properly received and items improperly received. In addition, you will also inform, and cooperate in making available to, the Company or any such other person or persons upon oral request made from time to time prior to the Expiration Date of such other information as they may reasonably request. Such cooperation shall include, without limitation, the granting by you to the Company and such person as the Company may request of access to those persons on your staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date the Company shall have received information in sufficient detail to enable it to decide whether to extend the Exchange Offer. You shall prepare a final list of all persons whose tenders were accepted, the aggregate principal amount of Old Securities tendered, the aggregate principal amount of Old Securities accepted and deliver said list to the Company. - 6 - 17. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to the date and, after the expiration of the Exchange Offer, the time, of receipt thereof and shall be preserved by you for a period of time at least equal to the period of time you preserve other records pertaining to the transfer of securities. You shall dispose of unused Letters of Transmittal and other surplus materials by returning them to the Company. 18. For services rendered as Exchange Agent hereunder, you shall be entitled to such compensation as set forth on Schedule I attached hereto. The provisions of this section shall survive the termination of this Agreement. 19. You hereby acknowledge receipt of the Prospectus and the Letter of Transmittal. Any inconsistency between this Agreement, on the one hand, and the Prospectus and the Letter of Transmittal (as they may be amended from time to time), on the other hand, shall be resolved in favor of the latter two documents, except with respect to your duties, liabilities and indemnification as Exchange Agent. 20. The Company covenants and agrees to fully indemnify and hold you harmless against any and all loss, liability, cost or expense, including attorneys' fees and expenses, incurred without gross negligence or willful misconduct on your part, arising out of or in connection with any act, omission, delay or refusal made by you in reliance upon any signature, endorsement, assignment, certificate, order, request, notice, instruction or other instrument or document believed by you to be valid, genuine and sufficient and in accepting any tender or effecting any transfer of Old Securities believed by you in good faith to be authorized, and in delaying or refusing in good faith to accept any tenders or effect any transfer of Old Securities. In each case, the Company shall be notified by you, by letter or facsimile transmission, of the written assertion of a claim against you or of any other action commenced against you, promptly after you shall have received any such written assertion or shall have been served with a summons in connection therewith. The Company shall be entitled to participate at its own expense in the defense of any such claim or other action and, if the Company so elects, the Company shall assume the defense of any suit brought to enforce any such claim. In the event that the Company shall assume the defense of any such suit, the Company shall not be liable for the fees and expenses of any additional counsel thereafter retained by you, so long as the Company shall retain counsel satisfactory to you to defend such suit, and so long as you have not determined, in your reasonable judgment, that a conflict of interest exists between you and the Company. The provisions of this section shall survive the termination of this Agreement. 21. You shall arrange to comply with all requirements under the tax laws of the United States, including those relating to missing Tax Identification Numbers, and shall file any appropriate reports with the Internal Revenue Service. 22. You shall deliver or cause to be delivered, in a timely manner to each governmental authority to which any transfer taxes are payable in respect of the - 7 - exchange of Old Securities, the Company's check in the amount of all transfer taxes so payable; provided, however, that you shall reimburse the Company for amounts refunded to you in respect of your payment of any such transfer taxes, at such time as such refund is received by you. 23. This Agreement and your appointment as Exchange Agent hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such state, and without regard to conflicts of law principles, and shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of each of the parties hereto. No other person shall acquire or have any rights under or by virtue of this Agreement. 24. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same agreement. 25. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 26. This Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived, in whole or in part, except by a written instrument signed by a duly authorized representative of the party to be charged. This Agreement may not be modified orally. 27. Unless otherwise provided herein, all notices, requests and other communications to any party hereunder shall be in writing (including facsimile or similar writing) and shall be given to such party, addressed to it, at its address or telecopy number set forth below: If to the Company: Armor Holdings, Inc. 1400 Marsh Landing Parkway, Suite 112 Jacksonville, Florida 32250 Facsimile: (904) 741-5403 Attention: Phil Baratelli If to the Exchange Agent: Wachovia Bank, National Association One Penn Plaza Suite 1414 New York, New York 10119 - 8 - Facsimile: (212) 273-7015 Attention: Corporate Trust Group 28. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days following the Expiration Date. Notwithstanding the foregoing, Sections 18 and 20 shall survive the termination of this Agreement. Upon any termination of this Agreement, you shall promptly deliver to the Company any certificates for Securities, funds or property then held by you as Exchange Agent under this Agreement. 29. This Agreement shall be binding and effective as of the date hereof. - 9 - Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy. ARMOR HOLDINGS, INC. By: ------------------------------------ Name: Phil Baratelli Title: Controller and Treasurer Accepted as of the date first above written: WACHOVIA BANK, NATIONAL ASSOCIATION, as Exchange Agent By: --------------------------------- Name: Title: - 10 - SCHEDULE I COMPENSATION OF EXCHANGE AGENT: $2,500 PLUS $500 PER EXTENSION OF EXCHANGE OFFER PLUS OUT-OF POCKET EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES AND EXPENSES. -----END PRIVACY-ENHANCED MESSAGE-----