AMENDED AND RESTATED
BY-LAWS
OF
UNI-MARTS, INC.
A Delaware Corporation
As Amended on February 21, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I - OFFICES ------------------------------------------1
Section 1: Registered Office.-----------------------------1
Section 2: Additional Offices.----------------------------1
ARTICLE II - MEETINGS OF STOCKHOLDERS ------------------------1
Section 1: Place of Meeting. ---------------------------1
Section 2: Annual Meetings.-------------------------------1
Section 3: Notice of Annual Meeting.----------------------2
Section 4: List of Stockholders.--------------------------2
Section 5: Special Meetings. ---------------------------2
Section 6: Notice of Special Meetings.--------------------2
Section 7: Business at Special Meetings.------------------2
Section 8: Quorum.----------------------------------------2
Section 9: Voting.----------------------------------------3
Section 10: Proxies.---------------------------------------3
Section 11: Action by Written Consent.---------------------4
ARTICLE III - DIRECTORS --------------------------------------4
Section 1: Number and Term.-------------------------------4
Section 2: Removal; Vacancies.----------------------------4
Section 3: Powers.----------------------------------------5
Section 4: Place of Meetings; Telephone Meetings.---------5
Section 5: First Meeting.---------------------------------5
Section 6: Regular Meetings. ---------------------------5
Section 7: Special Meetings. ---------------------------5
Section 8: Quorum.----------------------------------------5
Section 9: Action by Written Consent.---------------------6
Section 10: Committees.------------------------------------6
Section 11: Minutes of Committees.-------------------------7
Section 12: Compensation.----------------------------------7
Section 13: Conflict of Interest.--------------------------7
Section 14: Nominations.-----------------------------------8
ARTICLE IV - NOTICES -----------------------------------------8
Section 1: Notice.----------------------------------------8
Section 2: Waiver of Notice. ---------------------------8
ARTICLE V - OFFICERS -----------------------------------------9
Section 1: Officers.--------------------------------------9
Section 2: Additional Officers.---------------------------9
Section 3: Compensation.----------------------------------9
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Section 4: Term of Office; Removal; Vacancies.-----------10
Section 5: Duties of Officers.---------------------------10
ARTICLE VI - CERTIFICATES OF STOCK -------------------------11
Section 1: Certificates.---------------------------------11
Section 2: Signatures.-----------------------------------12
Section 3: Lost, Stolen or Destroyed Certificates.-------12
Section 4: Transfer of Stock.----------------------------12
Section 5: Record Date.----------------------------------12
Section 6: Registered Stockholders.----------------------13
ARTICLE VII - GENERAL PROVISIONS ----------------------------13
Section 1: Dividends.------------------------------------13
Section 2: Reserves.-------------------------------------13
Section 3: Annual Statement. --------------------------13
Section 4: Checks.---------------------------------------13
Section 5: Fiscal Year.----------------------------------14
Section 6: Seal.-----------------------------------------14
Section 7: Contracts.------------------------------------14
Section 8: Voting of Corporation's Securities.-----------14
ARTICLE VIII - AMENDMENTS -----------------------------------14
Section 1: Procedure.------------------------------------14
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AMENDED AND RESTATED
BY-LAWS
of
UNI-MARTS, INC.
A Delaware Corporation
ARTICLE I
Offices
Section 1: Registered Office.
The registered office shall be 1013 Centre Road, Wilmington,
Delaware.
Section 2: Additional 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 of Meeting.
All meetings of the stockholders for the election of directors shall
be held in the borough of State College, Commonwealth of Pennsylvania,
or at such other place, within or without the State of Delaware, as may
be fixed from time to time by the Board of Directors. Meetings of
stockholders for any other purpose may be held at such time and place,
within or without the State of Delaware, as such is stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2: Annual Meetings.
Annual meetings of stockholders shall be held at such time and place
as may be specified in the notice thereof, 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.
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Section 3: Notice of Annual Meeting.
Unless otherwise required by law, written notice of the annual
meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days before
the date of the meeting.
Section 4: List of Stockholders.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at
said meeting arranged in alphabetical order and showing the address of
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 (10) days prior to the meeting, either at a
location within the borough of State College where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where said 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 subject to the inspection of any
stockholder who is present.
Section 5: Special Meetings.
Special meetings of stockholders for any purpose or purposes,
Unless otherwise provided by law or by the Certificate of Incorporation,
may be called at any time (i) by the Chairman of the Board or (ii) by the
Secretary directed upon by the vote of a majority of the Board of Directors,
at such time and place either within or without the State of Delaware as maybe
stated in the notice. Stockholders of the Corporation shall not be entitled
to call special meetings of stockholders.
Section 6: Notice of Special Meetings.
Unless otherwise required by law, written notice of a special meeting
of stockholders, stating the date, time, place and purpose or purposes for
which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 7: Business at Special Meetings.
Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 8: Quorum.
The holders of record of capital stock representing no less than a
majority of the total number of shares issued and outstanding and
entitled to vote thereat,present in person or
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represented by proxy or power of attorney, 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. At any meeting of the stockholders, whether annual or
special, or any adjournment thereof, including any such meeting at which
a quorum shall not be present or represented, the majority of the
stockholders entitled to vote thereat, present in person or represented
by proxy or power of attorney, shall have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting.
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 noticed. 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 stockholder of record entitled to vote at the meeting.
Section 9: Voting.
(a) Except as otherwise may be provided by the Certificate of
Incorporation or by these By-Laws, at every meeting of the stockholders, each
stockholder shall be entitled to one (1) vote for each share of stock which is
registered in his or her name on the record date for the meeting.
(b) When a quorum is present at any meeting, the vote of a
majority of the voting power of stock, 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 these By-Laws or 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 questions.
(c) A holder of Common Stock shall have one (1) vote per
share for each such share of stock registered to such holder at the time of
the closing of the transfer books of the Corporation or on the date fixed as
the record date for any meeting, unless otherwise provided by these By-Laws.
In case the transfer books of the Corporation shall not have been closed and
no date shall have been fixed as a record date for the determination of
the stockholders entitled to vote, those persons of record as of the
close of business on the day next preceding the date on which notice is
given, and not others, shall be entitled to vote at said meeting,
provided that any applicable provisions of law respecting publication
of such record date be observed.
Section 10: Proxies.
Unless otherwise provided in the Certificate of Incorporation, Each
stockholder having the right to vote shall, at every meeting of the
stockholders, be entitled to vote in person or by proxy appointed by
instrument in writing subscribed to by such stockholder or by his duly
authorized attorney, but no proxy shall be voted on or acted upon after
three (3) years from its date.
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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
without a meeting, may be taken without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
ARTICLE III
Directors
Section 1: Number and Term.
The number of directors which will constitute the whole
Board shall benot less than three (3), the exact number to be
determined by a resolution of the Board of Directors. At the annual
election of directors to be held at the annual meeting of stockholders
in Fiscal Year 1987, the directors shall be divided into three (3)
classes, as nearly equal as possible, known as Class I, Class II, and
Class III. The initial directors of Class I shall serve until the end
of the annual meeting of stockholders held in February 1988, at which
time the directors of Class I shall be elected for a term of three
(3) years and shall thereafter be elected every three (3) years for
three (3) year terms. The initial directors of Class II shall serve
until the end of the annual meeting of stockholders held in February
1989, at which time the directors of Class II shall be elected for a
term of three (3) years and shall thereafter be elected every three
(3) years for three (3) year terms. The initial directors of Class
III shall serve until the end of the annual meeting of stockholders
held in February 1990, at which time the directors of Class III shall
be elected for a term of three (3) years and shall thereafter be elected
every three (3) years for three (3) year terms. Each director elected
shall hold office until his or her successor is elected and qualified.
Directors need not be stockholders.
Section 2: Removal; Vacancies.
(a) No director shall be removed from office by stockholders
before the end of his term except for cause and upon either (i) the
affirmative vote of the holders of at least 80% of the outstanding
shares of the Corporation's voting stock or (ii) the vote of a majority
of the entire Board of Directors then in office.
(b) Any vacancy in the office of a director either (i) may be
filled by the vote of the holders of Common Stock or (ii) if applicable
law permits, any such vacancy may be filled by the remaining directors
then in office, even though less than a quorum, or by a sole remaining
director. Any director elected by the stockholders or the Board of
Directors to
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fill a vacancy shall serve until the end of the full unexpired term of
the vacating director and until his or her successor has been elected
and has been qualified. If permitted by applicable law, the Board of
Directors may increase the number of directors, and any vacancy so
created may be filled by the Board of Directors by a majority vote of
all directors then in office.
Section 3: Powers.
The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things
as are not by statute or by the Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4: Place of Meetings; Telephone Meetings.
The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Any director may participate in any meeting of the Board of
Directors or a committee of the Board of Directors by means of conference
telephone or similar communications equipment by means of which all
persons participating in such meeting can hear each other, and
participation in a meeting pursuant to the provision of this Section
4 shall constitute presence in person at such meeting.
Section 5: First Meeting.
The first meeting of each newly elected Board of Directors shall
be held at such time and place as shall be fixed by the Board of
Directors, 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.
Section 6: Regular Meetings.
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be
determined by the Board.
Section 7: Special Meetings.
Special meetings of the Board may be called by the Chairman of the
Board by one day's notice to each director, either personally or by
mail or by telegram or by telephone. Special meetings shall be called
by the Secretary in like manner and on like notice on the written
request of 40% of The directors.
Section 8: Quorum.
At all meetings of the Board, a majority of the directors then
constituting the total number of the Board, but not less than two
(2) directors, except when a board of one director
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is authorized and acting, then one (1) director shall constitute a quorum
for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation. If a quorum
shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9: Action by Written Consent.
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 of
such committee, as the case may be, consent thereto in writing and
such written consent is filed with the minutes of proceedings of
the Board or committee.
Section 10: Committees.
The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees. The Board may
designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. 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.
Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise 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 (except that a committee may, to the extent authorized in
any resolution or resolutions providing for the issuance of shares of
stock adopted by the Board of Directors as provided in Section 151(a)
of the General Corporation Law of the State of Delaware, or any
successor provision thereto, fix any of the preferences or rights of
such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation, or the conversion into or the
exchange of such shares for shares of any other class or classes, or any
other series of the same or any other class of classes of stock of the
Corporation), adopting the agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provides, no
such committee shall have the power or authority to declare a dividend
or to authorize the issuance of stock, or to adopt a certificate of ownership
and merger pursuant to Section 253 of the General Corporation Law of the State
of Delaware, or any successor provision thereto. Such committee or
committees shall have such name or names as may be
6
determined from time to time by resolution adopted by the Board of
Directors. Notwithstanding anything else to the contrary contained
herein, all functions of the Board of Directors of the Corporation with
respect to the executive officers of the Corporation, including, without
limitation, the authority to engage and discharge such executive officers
and the responsibility of supervising such executives in the discharge
of their duties, are hereby delegated to Henry D. Sahakian, or the
current Chairman of the Board.
Section 11: Minutes of Committees.
Each committee may keep regular minutes of its meetings and
report the same to the Board of Directors.
Section 12: Compensation.
Unless otherwise restricted by the Certificate of Incorporation, the
Board of Directors shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors, and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
Section 13: Conflict of Interest.
No contract or other 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 the Corporation's directors or officers are
directors or officers or have a financial interest, shall be void or
voidable solely for such reason, or solely because such director or
directors or officer or officers are present at or participate in the
meeting of the Board of Directors or a committee thereof which authorized or
approves the contract or transaction, or solely because his or their votes
are counted for such purpose, if (1) the material facts as to his or
their relationships or interests and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the
Board 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
(2) the material facts as to his or their relationships or interests 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 a vote of the stockholders;
or (3) 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.
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Section 14: Nominations.
Nominations for election to the Board of Directors may be made by the
Board of Directors or by any stockholder entitled to vote for election of
directors. Nominations, other than those made by or on behalf of the Board,
shall be made in writing and shall be delivered or mailed to the Secretary
of the Corporation at least forty-five (45) days prior to the date on which
the Corporation first mailed its proxy materials for the immediately
preceding year's annual meeting of stockholders, or, if the Corporation did
not have an annual meeting of stockholders in such year, at least one hundred
twenty (120) days prior to the date of the annual meeting. Such notification
shall contain the following information to the extent known to the notifying
stockholder(s): (a) the name and address of each proposed nominee;
(b) the principal occupation of each proposed nominee; (c) the total number
of shares of common stock of the Corporation that will be voted for each
proposed nominee by the notifying stockholder(s); (d) the name and residence
address of the notifying stockholder(s); and (e) the number of shares of common
stock owned by the notifying stockholder(s). Nominations not made in
accordance herewith shall be disregarded by the chairman of the meeting and
votes cast for such nominee shall not be counted.
ARTICLE IV
Notices
Section 1: Notice.
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 only, 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 or telephone.
Section 2: Notice by Electronic Transmission.
Without limiting the provisions of Section 1 hereof, notice to any director
or stockholder shall be effective if given by a form of electronic transmission
consented to by the director or stockholder to whom the notice is given. Any
such consent shall be revocable by the director or stockholder by written notice
to the Corporation. Any such consent shall be deemed revoked if the Corporation
is unable to deliver by electronic transmission two consecutive notices given by
the Corporation in accordance with such consent, and such inability becomes
known to the Secretary or an Assistant Secretary of the Corporation, or to the
transfer agent, or other person responsible for the giving of notice; provided,
however, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action. Notice given pursuant to this
Section 2 shall be deemed given (i) if by facsimile
8
telecommunication, when directed to a number at which the director or
stockholder has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the director or stockholder has
consented to receive notice; (iii) if by a posting on an electronic network,
together with separate notice to the director or stockholder of such specific
posting, upon the later of (a) such posting and (b) the giving of such separate
notice; and (iv) if by any other form of electronic transmission, when directed
to the director or stockholder, as applicable.
Section 3: Waiver of Notice.
Whenever any notice is required to be given under statute, the Certificate
of Incorporation or these By-Laws, a written waiver signed by the person
entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. 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 at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice or
any waiver by electronic transmission unless so required by the Certificate of
Incorporation or these By-Laws.
ARTICLE V
Officers
Section 1: Officers.
The officers of the Corporation shall be chosen by the Board of Directors
and shall be a Chairman of the Board of Directors, a President, an Executive
Vice President and Chief Financial Officer, an Executive Vice President and a
Secretary. The Board of Directors may also choose additional vice presidents
and one or more assistant secretaries. Any number of offices may be held by
the same person unless the Certificate of Incorporation otherwise provides.
Section 2: Additional Officers.
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.
Section 3: Compensation.
The salaries of all officers and agents of the Corporation shall be fixed
by the Board of Directors or a committee thereof.
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Section 4: Term of Office; Removal; Vacancies.
The officers of the Corporation shall serve at the pleasure of the Board
of Directors and shall hold office until their successors are chosen and
qualified. 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.
Section 5: Duties of Officers.
The officers of the Corporation, if and when elected by the Board of
Directors of the Corporation, shall have the following duties:
(a) Chairman of the Board. The Chairman of the Board
shall be the chief executive officer of the Corporation and shall, subject to
the direction of the Board of Directors, supervise and control the business
and affairs of the Corporation. He shall, when present, preside at all meetings
of the stockholders and of the Board of Directors. He may sign certificates for
shares of the Corporation and deeds, mortgages, bonds, contracts or other
instruments on behalf of the Corporation, except where required 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. In general, he shall perform all duties incident to
the office of Chairman of the Board and such other duties as may be prescribed
by the Board of Directors.
(b) President. The President shall be the chief operating officer of the
Corporation and shall have general management of all operating areas of the
business of the Corporation, including convenience store operations and
petroleum operations. The President of the Corporation shall carry into effect
the orders of the Chairman of the Board. The President may sign deeds,
mortgages, bonds, contracts or other instruments on behalf of the Corporation,
except where required 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. In
general, he shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Board of Directors or the
Chairman of the Board.
(c) Executive Vice President and Chief Financial Officer.
The Executive Vice President and Chief Financial Officer shall be the Principal
financial officer and chief accounting officer of the Corporation and Shall have
general and active management of all financial, accounting and administrative
areas of the business of the Corporation, including administration, finance,
accounting and internal audit and such other duties as may be prescribed by
the Board of Directors or the Chairman of the Board. The Executive Vice
President and Chief Financial Officer may sign deeds, mortgages, bonds,
contracts or other instruments on behalf of the Corporation, except where
required by law to be otherwise signed
10
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.
(d) Executive Vice President. The Executive Vice
President shall be responsible for the day-to-day management of all operating
areas of the business of the Corporation, including convenience store
operations and petroleum division operations and such other duties as may be
prescribed by the Board of Directors, Chairman of the Board or President.
(e) Other Vice Presidents. Additional vice presidents appointed
by the Board of Directors shall perform such other duties and have such other
powers as the Board of Directors, Chairman of the Board, President or Executive
Vice President and Chief Financial Officer may from time to
time prescribe.
(f) Secretary. 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 stockholders 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, the Chairman of the Board or the Executive Vice President and Chief
Financial Officer, 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.
(g) Assistant Secretaries. 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.
ARTICLE VI
Certificates of Stock
Section 1: Certificates.
Every holder of stock in the Corporation shall be entitled to have a
certificate, signed by or in the name of the Corporation, by the Chairman
of the Board or the President or a Vice President and the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned
by him in the Corporation. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the powers,
designations, preferences, and relative, participating, optional or other
special rights of each class of stock or
11
series thereof, and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, provided that, except as otherwise
provided in Section 202 of the General Corporation Law of the State of
Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation
will furnish, without charge, to each stockholder who so requests, the
powers, designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof, and the
qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2: Signatures.
Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if he
were such officer, transfer agent or registrar at the date of issue.
Section 3: Lost, Stolen or Destroyed Certificates.
The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 4: Transfer of Stock.
Upon surrender to the Corporation or the transfer agent of the Corporation
of a certificate for shares, duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate, and record the transaction upon its books.
Section 5: Record Date.
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or
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other distribution or allotment of any right, or entitled to exercise any
rights in respect to 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 (60) days nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 6: Registered Stockholders.
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner, and 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 the State of Delaware.
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 provision of the Certificate of Incorporation.
Section 2: Reserves.
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
form time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation, or for such other purpose as
the Directors shall think conducive to the interest of the Corporation, and the
Directors may modify or abolish any such reserve in the manner in which it was
created.
Section 3: Annual Statement.
The Board of Directors shall present at each annual meeting, and at any
special meeting of the stockholder when called for by vote of the stockholders,
a full and clear statement of the business and condition of the Corporation.
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Section 4: Checks.
All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 5: Fiscal Year.
The fiscal year of the Corporation shall end on September 30.
Section 6: Seal.
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its incorporation and the words "Corporate Seal"
and "Delaware." The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
Section 7: Contracts.
The Board of Directors may authorize any officer, agent or
employee to enter into any contract, instrument or agreement on behalf of
the Corporation, and the authority granted may be general or confined to
specific instances. Except as provided in this section or as authorized by
the Board of Directors, no officer, agent or employee, other than the Chairman
of the Board, the President, any Vice President or the Secretary, shall have
any power or authority to bind the Corporation by any contract, instrument or
agreement, to pledge its credit, or to render it liable, for any amount.
Section 8: Voting of Corporation's Securities.
Unless otherwise ordered by the Board of Directors, the Chairman of the
Board, the President or any Vice President, or such other officer as may be
designated by the Board of Directors to act in the absence of the Chairman of
the Board, the President or any Vice President, shall have full power and
authority, on behalf of the Corporation, to attend and to act and to vote, and
to execute a proxy or proxies empowering others to attend and to act and to
vote, at any meetings of security holders of any corporation in which the
Corporation may hold securities, and at such meetings the Chairman of the Board
or such other officer of the Corporation, or such proxy, shall possess and
may exercise any and all rights and powers incident to the ownership of such
securities, and which as the owner thereof, the Corporation might have possessed
and exercised if present. The Secretary or an Assistant Secretary may affix
the corporate seal to any such proxy or proxies so executed by the Chairman
of the Board, or such other officer, and attest the same. The Board of
Directors, by resolution from time to time, may confer like powers upon any
other person or persons.
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ARTICLE VIII
Amendments
Section 1: Procedure.
These By-Laws may be altered, amended or repealed, or new by-laws may
be adopted by the Board of Directors at any regular meeting of the Board of
Directors or at any special meeting of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained
in the notice of such special meeting. No change of the time or place of
the meeting for election of directors shall be made within sixty (60) days
next before the day on which such 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.
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