AMENDED AND RESTATED BYLAWS
OF
DAIRY MART CONVENIENCE STORES, INC.
(A Delaware Corporation)
ARTICLE I
Offices
Section 1. Principal Office in Connecticut. The principal
office of DAIRY MART CONVENIENCE STORES, INC. (the "Corporation")
in the State of Connecticut shall be in the Town of Enfield, County
of Hartford.
Section 2. Registered Office in Delaware. The Corporation
shall have and maintain a registered office in the State of
Delaware as required by Delaware law.
Section 3. Other Offices. The Corporation may have a principal
or other office at such other place or places, either within or
without the State of Connecticut or Delaware, as the Board of
Directors may from time to time determine or as shall be necessary
or appropriate for the conduct of the business of the Corporation.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meetings. All annual and special meetings
of stockholders shall be held at such place or places, within or
without the State of Delaware, as may from time to time be called
and fixed solely by the Board of Directors in accordance with these
Bylaws, or as shall be specified in the respective notices or
waivers of notice thereof.
Section 2. Annual Meetings. Each annual meeting of
stockholders for the election of directors and the transaction of
other business shall be held on the second Thursday of June, in
each year, and shall be called solely by order of the Board of
Directors. If this date shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each
annual meeting the stockholders entitled to vote shall elect a
Board of Directors and may transact such other corporate business
as may be brought before the meeting.
If the election of directors shall not be held on the day
designated herein for the annual meeting, or at any adjournment
thereof, the Board of Directors shall cause a special meeting of
the stockholders for the election of directors to be held as soon
thereafter as may be convenient. At such special meeting the
stockholders may elect directors and transact other business with
the same force and effect as at an annual meeting of the
stockholders duly called and held.
Section 3. Special Meetings. A special meeting of the
stockholders (or of any class thereof entitled to vote at a special
meeting) for any purpose or purposes may be called at any time
solely by order of the Board of Directors. No stockholder, in its,
his, or her capacity as a stockholder, may call a special meeting
of the stockholders. The record date for any special meeting of
the stockholders shall be set solely by order of the Board of
Directors.
Section 4. Notice of Meetings. Except as otherwise expressly
required by law, notice of each meeting of stockholders, whether
annual or special, shall be given at least ten (10) days before the
date on which the meeting is to be held to each stockholder of
record entitled to vote thereat by delivering a notice thereof to
him personally or by mailing such notice in a postage prepaid
envelope directed to him at his address as it appears on the stock
ledger of the Corporation, unless he shall have filed with the
Secretary of the Corporation a written request that notices
intended for him be directed to another address, in which case such
notice shall be directed to him at the address designated in such
request. Every notice of a special meeting of the stockholders,
besides stating the time and place of the meeting, shall state
briefly the objects or purposes thereof. Notices 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 authorized,
in writing or by telegraph, cable or wireless, waive notice of any
meeting of the stockholders, whether prior to or after such
meeting, notice thereof need not be given to him. Notice of any
adjourned meeting of the stockholders shall not be required to be
given, except as expressly required by law.
Section 5. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge
of the stock ledger to prepare and make, at least ten (10) days'
before every election of directors, a complete list of the
stockholders entitled to vote thereat, arranged in alphabetical
order, and showing the address of each stockholder and the number
of shares registered in his name. Such list shall be open for ten
(10) days' at the place where said election is to be held or at
some other specified place within the Town of Enfield, State of
Connecticut to the examination of any stockholder during ordinary
business hours and shall be produced and kept at the time and place
of the election during the whole time thereof and subject to the
inspection of any stockholder who may be present. The original or
duplicate stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or the books of the
Corporation or to vote in person or by proxy at such election.
Section 6. Quorum. At each meeting of the stockholders, the
holders of record of (i) a majority of the voting power of the
issued and outstanding stock of all classes of the Corporation
entitled to vote at such meeting, present in person or by proxy,
shall constitute a quorum for the transaction of business, with
respect to those matters as to which all classes of stock vote
together, and (ii) one-third (1/3) of the issued and outstanding
stock of any class of stock of the Corporation entitled to vote at
such meeting, present in person or by proxy, shall constitute a
quorum for the transaction of business with respect to those
matters as to which such class is entitled (by law, the Certificate
of Incorporation or these Bylaws) to vote separately from all other
classes, except where otherwise provided by law, the Certificate of
Incorporation or these Bylaws. In the absence of a quorum, any
officer entitled to preside at, or act as Secretary of, such
meeting shall have the power to adjourn the meeting from time to
time until a quorum shall be constituted. At any such 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 7. Voting. Except as otherwise provided in the
Certificate of Incorporation, at every meeting of stockholders each
holder of record of the issued and outstanding stock of the
Corporation entitled to vote at such meeting shall be entitled to
one vote in person or by proxy for each such share of stock
entitled to vote held by such stockholder, but no proxy shall be
voted after three (3) years from its date unless the proxy provides
for a longer period, and, except where the transfer books of the
Corporation shall have been closed or a date shall have been fixed
as the record date for the determination of stockholders entitled
to vote, no share of stock shall be voted on at any election for
directors which shall have been transferred on the books of the
Corporation within twenty (20) days next preceding such election of
directors. Shares of its own capital stock belonging to the
Corporation directly or indirectly shall not be voted upon directly
or indirectly. At all meetings of the stockholders, a quorum being
present, all matters shall be decided by majority vote of the
shares of stock entitled to vote held by stockholders present in
person or by proxy, except as otherwise required by the laws of the
State of Delaware. Unless demanded by a stockholder of the
Corporation present in person or by proxy at any meeting of the
stockholders and entitled to vote thereat or so directed by the
Chairman of the meeting or required by the laws of the State of
Delaware, the vote thereat on any question need not be by ballot.
Unless otherwise provided in the Certificate of Incorporation, all
elections of directors shall be by ballot. On a vote by ballot,
each ballot shall be signed by the stockholder voting, or in his
name by his proxy, if there be such proxy, and shall state the
number of shares voted by him and the number of votes to which each
share is entitled.
Unless otherwise provided in the Certificate of Incorporation,
any action required or permitted to be taken at any annual or
special meeting of the stockholders of the Corporation 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,
shall be signed by the holders of the minimum number of shares of
outstanding stock 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. Such consent or consents shall be
delivered to the Corporation by delivery to its registered office
in 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. Prompt
notice of the taking of corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders
who have not consented in writing.
Section 8. Advance Notice of Stockholder Business. At an
annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be
(a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly
brought before the meeting by a stockholder of record. For business
to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal
executive offices of the Corporation, not less than sixty (60) days
nor more than ninety (90) days prior to the meeting; provided,
however, that if both (i) fewer than seventy (70) days Advance
Notice of the meeting is given to stockholders, and (ii) such
meeting is held more than thirty (30) days before or after the
corresponding date of the annual meeting held in the preceding
year, then such written notice shall be received not later than the
close of the tenth day following the day on which notice of the
meeting was mailed to stockholders. As used in this Section 8,
"Advance Notice" to the stockholders shall be deemed to have been
given on the date of any quarterly report of the Corporation,
letter to stockholders, press release or other communication to
stockholders disclosing the date of the next annual meeting and
provided that the annual meeting is in fact held on such date or
within thirty (30) days after such date. Any such Advance Notice
would be in addition to, but not in substitution for, the Notice of
Meeting provided for in Section 4 above.
A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual
meeting: (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder
proposing such business, (c) the class and number of shares of
stock of the Corporation of which the stockholder is the Beneficial
Owner (as that term is defined in the Certificate of Incorporation
of the Corporation), and (d) any material interest of the
stockholder in such business. Notwithstanding anything in the By-
Laws to the contrary, no business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this
Section 8. The Chairman of the annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the
provisions of this Section 8, and if he should so determine, he
shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Notwithstanding the provisions of this Section 8, notice of
stockholder nominations of persons for election as directors shall
be as set forth in the Certificate of Incorporation.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business and affairs
of the Corporation shall be managed by the Board of Directors.
Section 2. Number and Term of Office. The number of directors
shall be fixed from time to time by resolution of the Board of
Directors but shall not be less than three (3). Directors need not
be stockholders. Each director shall hold office until the annual
meeting of the stockholders next following his election and until
his successors shall have been elected and shall qualify, or until
his death, resignation or removal.
Section 3. Quorum and Manner of Acting. Unless otherwise
provided by law, the presence of one-third (1/3) of the whole Board
of Directors, and in any case not less than two (2) directors,
shall be necessary to constitute a quorum for the transaction of
business. In the absence of a quorum, a majority of the directors
present may adjourn the meeting from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be
given. At all meetings of the directors, a quorum being present,
all matters shall be decided by the affirmative vote of a majority
of the directors present, except as otherwise required by the laws
of the State of Delaware, and except for the calling of any annual
or special meeting of the stockholders by the Board of Directors
which shall require the affirmative vote of a majority of the whole
Board of Directors.
Section 4. Place of Meetings, Books and Records. The Board of
Directors may hold its meetings 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.
Section 5. Annual Meeting. As promptly as practicable after
each annual meeting of stockholders for the election of directors,
the Board of Directors shall meet for the purpose of organization,
the election of officers and the transaction of other business.
Notice of such meeting need not be given. Such meeting of the
Board of Directors may be held at any other time or place as shall
be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors or in a waiver of notice thereof
signed by all the directors.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place, within or without the
State of Delaware, as shall from time to time be determined by the
Board of Directors. After there has been such determination, and
notice thereof has been given to each member of the Board of
Directors, regular meetings may be held without further notice
being given.
Section 7. Special Meetings and Notice Thereof. Special
meetings of the Board of Directors shall be held whenever called by
the Chairman of the Board, the President or by a majority of the
directors. Notice of each such meeting shall be mailed to each
director, addressed to him at his residence or usual place of
business, at least two (2) days before the date on which the
meeting is to be held, or shall be sent to him at such place by
telegraph, cable, radio or wireless, or be delivered personally or
by telephone, not later than the day before the day on which such
meeting is to be held. Each such notice shall state the time and
place of the meeting and the purpose thereof. In lieu of the notice
to be given as set forth above, a waiver thereof in writing, signed
by the director or directors entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent
thereto for purposes of this Section 7. No notice to or waiver by
any director with respect to any special meeting shall be required
if such director shall be present at said meeting.
Section 8. Resignation. Any director of the Corporation may
resign at any time by giving written notice thereof to the Chairman
of the Board, the President or the Secretary of the Corporation.
The resignation of any director shall take effect upon receipt of
notice thereof or at such later time as shall be specified in such
notice; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective. When
one or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office including
those who have so resigned shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective.
Section 9. Vacancies. Vacancies and newly created
directorships resulting form any increase in the authorized number
of directors may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director, unless otherwise provided by the Certificate of
Incorporation or the laws of the State of Delaware.
Section 10. Removal. As provided in the Certificate of
Incorporation, any director, or the entire Board of Directors of
the Corporation, may be removed at any time, with or without cause,
only by the affirmative vote by the holders of two-thirds (2/3) or
more of the voting shares of the class or classes of stock that
elected the director to be removed; provided, however, that such
vote shall be taken at a meeting of the shareholders called for the
purpose of removing directors and such vote may not be taken by the
written consent of shareholders in lieu of a meeting or otherwise
than at a meeting.
Section 11. Compensation of Directors. Directors, as such,
shall not receive any stated salary for their services, but, by
resolution of the Board, a specific sum fixed by the Board plus
experience may be allowed for attendance at each regular or special
meeting of the Board or any committee thereof; provided that
nothing herein contained shall be construed to preclude any
director from serving the Corporation or any subsidiary thereof in
any other capacity and receiving compensation therefor.
Section 12. 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 two or more
directors of the Corporation, which, to the extent provided in the
resolution or in these Bylaws, shall have and may exercise such
powers of the Board in the management of the business and affairs
of the Corporation (including the power to authorize the seal of
the Corporation to be affixed to all papers which may require it),
as the Board may by resolution determine and specify in the
respective resolutions appointing them, subject to such
restrictions as may be contained in the Certificate of Incorpor-
ation. 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. The committees shall keep regular minutes of
their proceedings and report the same to the Board when required.
A majority of all the members of any such committee may fix its
rules of procedure, determine its action and fix the time and
place, whether within or without the State of Connecticut, of its
meetings and specify what notice thereof, if any, shall be given,
unless the Board of Directors shall otherwise by resolution
provide. The Board of Directors shall have power to change the
membership of any such committee at any time, to fill vacancies
thereon and to discharge any such committee, either with or without
cause, at any time. Each member of any such committee shall be paid
such fee, if any, as shall be fixed by the Board of Directors for
each meeting of such committee which he shall attend and, in
addition, such transportation and other expenses actually incurred
by him in going to the meeting of such committee and returning
therefrom as the Board of Directors shall approve.
Section 13. Action Without Meeting. 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 prior to
such action 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 or proceedings of the
Board or committee.
ARTICLE IV
Officers
Section 1. Number. The principal officers of the Corporation
shall be a Chairman of the Board, a President, one or more Vice
Presidents, a Treasurer and a Secretary. The Corporation may also
have, at the discretion of the Board of Directors, such other
officers as may be appointed in accordance with the provisions of
these Bylaws. One person may hold the offices and perform the
duties of any two or more of said offices, except the offices and
duties of President and Secretary.
Section 2. Election or Appointment and Term of Office. The
principal officers of the Corporation shall be chosen annually by
the Board of Directors at the annual meeting thereof. Each such
officer shall hold office until his successor shall have been duly
chosen and shall qualify, or until his death or until he shall
resign or shall have been removed in the manner hereinafter
provided.
Section 3. Subordinate Officers. In addition to the principal
officers enumerated in Section 1 of this Article IV, the
Corporation may have one or more Assistant Treasurers, one or more
Assistant Secretaries and such other officers, agents and employees
as the Board of Directors may deem necessary, each of whom shall
hold office for such period, have such authority, and perform such
duties as the Chairman of the Board, the President, or the Board of
Directors may from time to time determine. The Board of Directors
may delegate to any principal officer the power to appoint and to
remove any such subordinate officers, agents or employees.
Section 4. Removal. Any officer may be removed, either with or
without cause, at any time, by resolution adopted by the Board of
Directors at any regular meeting of the Board or at any special
meeting of the Board called for that purpose at which a quorum is
present.
Section 5. Resignations. Any officer may resign at any time by
giving written notice to the Chairman of the Board or to the Board
of Directors or to the President or to the Secretary. Any such
resignation shall take effect upon 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 may be filled
for the unexpired portion of the term in the manner prescribed in
these Bylaws for election or appointment to such office for such
term.
Section 7. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of stockholders and at all meetings
of the Board of Directors. He shall perform such other duties and
have such other powers as the Board of Directors may from time to
time prescribe.
Section 8. President. The President shall be the chief
executive officer of the Corporation and as such shall have general
supervision of the affairs of the Corporation, subject to the
control of the Board of Directors. He shall be ex officio a member
of all standing committees. In the absence of the Chairman of the
Board the President shall preside at all meetings of stockholders
and at all meetings of the Board of Directors. Subject to the
control and discretion of the Board of Directors, the President may
enter into any contract or execute and deliver any instrument in
the name and on behalf of the Corporation. In general, he shall
perform all duties incident to the office of President, as herein
defined, and all such other duties as from time to time may be
assigned to him by the Board of Directors.
Section 9. Vice Presidents. The Vice Presidents in the order
of their seniority, unless otherwise determined by the Board of
Directors, shall, in the absence or disability of the President,
perform the duties and exercise the powers of the President. They
shall perform such other duties and have such other powers as the
Chairman of the Board, the President or the Board of Directors may
from time to time prescribe.
Section 10. Treasurer. The Treasurer shall have charge and
custody of, and be responsible for, all funds and securities of the
Corporation and shall deposit all such funds in the name of the
Corporation in such banks or other depositories as shall be
selected by the Board of Directors. He shall exhibit at all
reasonable times his books of account and records to any of the
directors of the Corporation upon application during business hours
at the office of the Corporation where such books and records shall
be kept; when requested by the Board of Directors, he shall render
a statement of the condition of the finances of the Corporation at
any meeting of the Board or at the annual meeting of stockholders;
he shall receive, and give receipt for, moneys due and payable to
the Corporation from any source whatsoever; and in general, he
shall perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him
by the Chairman of the Board, the President or the Board of
Directors. The Treasurer shall give such bond, if any, for the
faithful discharge of his duties as the Board of Directors may
require.
Section 11. Secretary. The Secretary, if present, shall act as
secretary at all meetings of the Board of Directors and of the
stockholders and keep the minutes thereof in a book or books to be
provided for that purpose; he shall see that all notices required
to be given by the Corporation are duly given and served; he shall
have charge of the stock records of the Corporation; he shall see
that all reports, statements and other documents required by law
are properly kept and filed; and in general, he shall perform all
the duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Chairman
of the Board, the President or the Board of Directors.
Section 12. Salaries. The salaries of the principal officers
shall be fixed from time to time by the Board of Directors, and the
salaries of any other officers may be fixed by the Chairman of the
Board or the President.
ARTICLE V
Shares and Their Transfer
Section 1. Certificate for Stock. Every stockholder of the
Corporation shall be entitled to a certificate or certificates, to
be in such form as the Board of Directors shall prescribe,
certifying the number of shares of the capital stock of the
Corporation owned by him.
Section 2. Stock Certificates. Any stock certificate which
certifies the number of shares owned by any holder of stock of the
Corporation shall be numbered in the order in which it shall be
issued and shall be signed by the Chairman of the Board or the
President or any Vice President, and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of
the Corporation and shall have the seal of the Corporation affixed
thereto; provided, however, that, where any such certificate is
signed (1) by a transfer agent or an assistant transfer agent or
(2) by a transfer clerk acting on behalf of the Corporation and a
registrar, if the Board shall by resolution so authorize, the
signature of such Chairman of the Board, President, Vice President,
Treasurer, Secretary, Assistant Treasurer or Assistant Secretary
and the seal of the Corporation may be facsimiles thereof. In case
any officer or officers of the Corporation who shall have signed,
or whose facsimile signature or signatures shall have been used on,
any such certificate shall cease to be such officer or officers,
whether by reason of death, resignation or otherwise, before such
certificate shall have been delivered by the Corporation, such
certificate may nevertheless be adopted by the Corporation and be
issued and delivered as though the person or persons who signed
such certificate, or whose facsimile signature or signatures shall
have been affixed thereto, had not ceased to be such officer or
officers.
Section 3. Stock Ledger. A record shall be kept by the
Secretary, transfer agent or by any other officer, employee or
agent designated by the Board of Directors of the name of the
person, firm or corporation holding the stock represented by such
certificate, the number of shares represented by such certificate,
and the date thereof, and in case of cancellation, the date of
cancellation.
Section 4. Cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be cancelled, and no new
certificate or certificates shall be issued in exchanged for any
existing certificate until such existing certificate shall have
been so cancelled, except in cases provided for in Section 7 of
this Article V.
Section 5. Transfers of Stock. Transfers of shares of the
capital stock of the Corporation shall be made only on the books of
the Corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed
and filed with the Secretary of the Corporation or with a transfer
clerk or a transfer agent appointed as in Section 6 of this Article
V provided, and on surrender of the certificate or certificates for
such shares properly endorsed and the payment of all taxes thereon.
The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as
regards the Corporation; provided, however, that whenever any
transfer of shares shall be made for collateral security, and not
absolutely, such fact, if known to the Secretary of the
Corporation, shall be so expressed in the entry of transfer.
Section 6. Regulations. The Board of Directors may make such
rules and regulations as it may deem expedient, not inconsistent
with the Certificate of Incorporation or these Bylaws, concerning
the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any
principal officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars,
and may require all certificates of stock to bear the signature or
signatures of any of them.
Section 7. Lost, Stolen, Mutilated or Destroyed Certificates.
As a condition to the issue of a new certificate of stock in the
place of any certificate theretofore issued and alleged to have
been lost, stolen, mutilated or destroyed, the Board of Directors,
in its discretion, may require the owner of any such certificate,
or his legal representatives, to give the Corporation a bond in
such sum and in such form as it may direct to indemnify the
Corporation against any claim that may be made against it on
account of the alleged loss, theft, mutilation or destruction of
any such certificate or the issuance of such new certificate.
Proper evidence of such loss, theft, mutilation or destruction
shall be procured for the Board of Directors, if required. The
Board of Directors, in its discretion, may authorize the issuance
of such new certificate without any bond when in its judgment it is
proper to do so.
Section 8. Record Date. The Board may fix a date in advance of
not exceeding sixty (60) days' preceding, the date of any meeting
of stockholders (nor less than ten (10) days' before the date of
such meeting), or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect or a
date in connection with obtaining any written consent to corporate
action without a meeting, as a record date for the determination of
the stockholders entitled to notice of, and to vote at, such
meeting, and any adjournment thereof, or to receive payment of any
dividend, or to receive any such allotment of rights, or to
exercise the rights in respect of any such change, conversion, or
exchange of capital stock or to give such written consent, as the
case may be, notwithstanding any transfer of any stock on the books
of the Corporation after any record date so fixed.
ARTICLE VI
Miscellaneous Provisions
Section 1. Corporate Seal. The Board of Directors shall
provide a corporate seal, which shall be in the form of a circle
and shall bear the name of the Corporation and words and figures
showing that it was incorporated in the State of Delaware. The
Secretary shall be the custodian of the seal. The Board of
Directors may authorize a duplicate seal to be kept and used by any
other officer.
Section 2. Fiscal Year. The fiscal year of the Corporation
shall be as specified by the Board of Directors.
Section 3. Voting of Stocks Owned by the Corporation. The
Board of Directors may authorize any person in behalf of the
Corporation to attend, vote and grant proxies to be used at any
meeting of stockholders of any corporation (except this
Corporation) in which the Corporation may hold stock.
Section 4. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of
funds legally available therefor, at any regular or special meeting
declare dividends upon the capital stock of the Corporation as and
when they deem expedient. Before declaring any dividend there may
be set apart out of any funds of the Corporation available for
dividends such sum or sums as the directors from time to time in
their discretion may deem proper for working capital or as a
reserve fund to meet contingencies or for equalizing dividends or
for such other purposes as the directors may deem conducive to the
interests of the Corporation.
ARTICLE VII
Amendments
Section 1. The Bylaws of the Corporation may be adopted,
altered, amended or repealed or new bylaws may be adopted by the
Board of Directors at any regular or special meeting upon the
affirmative vote of both sixty-seven (67%) percent of the Whole
Board of Directors and majority (but in any event not less than
four) of the Continuing Directors as defined in the Certificate of
Incorporation of the Corporation. The Bylaws of the Corporation may
also be adopted, altered, amended or repealed or new bylaws may be
adopted by the shareholders only upon the affirmative vote as to
all stock held (i) by the holders of not less than sixty-seven
(67%) percent of the Outstanding Voting Shares and (ii) by an
Independent Majority of Shareholders, as defined in the Certificate
of Incorporation of the Corporation. Such a vote may be taken at
any annual or special meeting of the shareholders if notice of such
alteration, amendment, repeal or adoption of the new bylaws shall
be contained in the notice of such annual or special meeting. No
change of the time or place of the meeting for the election of
directors shall be made within sixty (60) days' next before the day
on which such a meeting is to be held, and, in case of any change
of such time or place, 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 meeting is
held. Bylaws, whether made or altered by the stockholders or by the
Board of Directors, shall be subject to alteration or repeal by the
stockholders as in this Article VII above provided.