AMENDED AND RESTATED BY-LAWS
OF
b2bstores.com Inc.
ARTICLE I
OFFICES
-------
1.1 Registered Office: The registered office shall be
established and maintained at 9 East Loockerman Street, Kent County, Dover,
Delaware and National Corporate Research, Ltd. shall be the registered agent of
the corporation in charge thereof.
1.2 Other Offices: The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
STOCKHOLDERS
2.1 Place of Stockholders' Meetings. All meetings of the
stockholders of the corporation shall be held at such place or places, within or
outside the State of Delaware as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders. An
annual meeting of stockholders shall be held each year at such place, either
within or without the State of Delaware, and at such time and date as the Board
of Directors, by resolution, shall determine and as set forth in the notice of
the meeting. In the event the Board of Directors fails to so determine the time,
date and place of meeting, the annual meeting of stockholders shall be held at
the main headquarters of the corporation on a day in the month of March as shall
be determined by the Board of Directors. If the date of the annual meeting shall
fall upon a legal holiday, the meeting shall be held on the next succeeding
business day.
2.3 Purposes of Annual Meetings. At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may be
transacted.
2.4 Special Meetings of Stockholders. Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called by
the Chairman of the Board or by the Board of Directors, or at the request in
writing by stockholders of record owning at least 40% of the issued and
outstanding shares of Common Stock of the corporation, which request shall state
the purpose of the proposed meeting, and may be held at such time and place,
within or without the State of Delaware, as shall be stated in the notice of
meeting.
2.5 Notice of Meetings of Stockholders. Except as otherwise
expressly required or permitted by law, not less than ten days nor more than
sixty days before the date of every stockholders'
meeting the Secretary shall give to each stockholder of record entitled to vote
at such meeting, written notice, served personally, by mail or by telegram,
stating the place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Such notice,
if mailed, shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address for notices to such
stockholder as it appears on the records of the corporation.
2.6 Quorum of Stockholders.
(a) Unless otherwise provided by the Certificate of
Incorporation or by law, at any meeting of the stockholders, the presence in
person or by proxy of stockholders entitled to cast a majority of the votes
thereat shall constitute a quorum.
(b) At any meeting of the stockholders at which a
quorum shall be present, a majority of those present in person or by proxy may
adjourn the meeting from time to time without notice other than announcement at
the meeting. In the absence of a quorum, the officer presiding thereat shall
have power to adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting, other than announcement at the
meeting, shall not be required to be given, except as provided in paragraph (d)
below and except where expressly required by law.
(c) At any adjourned session at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting 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, unless a new record date is fixed by the Board of
Directors.
(d) If an 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.
2.7 Chairman and Secretary of Meeting. The Chairman of the
Board, or, in his absence, the President, shall preside at meetings of the
stockholders. The Secretary or, in his absence, an Assistant Secretary, shall
act as secretary of the meeting, or if neither is present, then the presiding
officer may appoint a person to act as secretary of the meeting.
2.8 Voting by Stockholders. Except as may be otherwise
provided by the Certificate of Incorporation or these by-laws, at every meeting
of the stockholders each stockholder shall be entitled to one vote for each
share of stock standing in his name on the books of the corporation on the
record date for the meeting. All elections and questions shall be decided by the
vote of a majority in interest of the stockholders present in person or
represented by proxy and entitled to vote at the meeting.
2.9 Proxies. Any stockholder entitled to vote at any meeting
of stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
2.10 Inspectors. The election of directors and any other vote
by ballot at any meeting of the stockholders shall be supervised by at least two
inspectors. Such inspectors shall be appointed by the Board of Directors in
advance of the meeting. If one or both inspectors so appointed shall refuse to
serve or shall not be present, such appointment shall be made by the officer
presiding at the meeting.
2
2.11 List of Stockholders.
(a) At least ten days before every meeting of
stockholders the Secretary shall prepare and make 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.
(b) During ordinary business hours, for a period of
at least ten days prior to the meeting, such list shall be open to examination
by any stockholder for any purpose germane 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.
(c) The list shall also be produced and kept at the
time and place of the meeting during the whole time of the meeting, and it may
be inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required
by this Section 2.11 or the books of the corporation, or to vote in person or by
proxy at any meeting of stockholders.
2.12 Procedure at Stockholders' Meetings. Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure at
every meeting of stockholders shall be determined by the presiding officer. Not
less than 15 minutes following the presentation of any resolution to any meeting
of stockholders, the presiding officer may announce that further discussion on
such resolution shall be limited to not more than three persons who favor and
not more than three persons who oppose such resolution, each of whom shall be
designated by the presiding officer and shall thereupon be entitled to speak
thereon for not more than five minutes. After such persons, or such a lesser
number thereof as shall advise the presiding officer of their desire so to
speak, shall have spoken on such resolution, the presiding officer may direct a
vote on such resolution without further discussion thereon at the meeting.
2.13 Action By Consent Without Meeting. Unless otherwise
provided by the Certificate of Incorporation, any action required to be taken at
any annual or special meeting of stockholders, or any action which may be taken
at any annual or special meeting, 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.
2.14 Stockholder Proposals. Proposals to be submitted for
consideration at any meeting of stockholders may be made by any stockholder that
would be entitled to vote on such proposal ("Stockholder's Proposal") is
delivered to the Board of Directors by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Corporation not later than 30
days in advance of such meeting; provided, however, that if less than 30 days'
notice of such meeting was provided to stockholders, then the Stockholder's
Proposal must be delivered not later than five days after such notice is given.
Each such notice shall set forth: (a) the name and address of the stockholder
making such proposal; (b) a representation that such stockholder is a holder of
record of stock of the Corporation entitled to vote at the meeting and intends
to appear in person or by proxy at the meeting to make the proposal specified in
the notice; (c) a description of the proposal and the reasons for making such
proposal; (d) a description of all arrangements, agreements and understandings
between such stockholder and any other person pursuant to which the proposal is
being made or relating to such stockholder's ability or obligation to vote his
stock of the Corporation at the meeting;
3
and (e) such other information regarding the proposal as would be required to
be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission. The chairman of any meeting of stockholders
and the Board of Directors may refuse to acknowledge and consider any
stockholder proposal not made in compliance with the foregoing procedures.
ARTICLE III
DIRECTORS
3.1 Powers of Directors. The property, business and affairs of
the corporation shall be managed by its Board of Directors which may exercise
all the powers of the corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2 Number, Method of Election, Terms of Office of Directors.
The number of directors which shall constitute the Board of Directors shall be
between one and five, such number to be fixed by resolution of the Board of
Directors. Each Director shall hold office until the next annual meeting of
stockholders and until his successor is elected and qualified, provided,
however, that a director may resign at any time. Directors need not be
stockholders.
3.3 Vacancies on Board of Directors; Removal.
(a) Any director may resign his office at any time by
delivering his resignation in writing to the Chairman of the Board or the
Secretary. It will take effect at the time specified therein or, if no time is
specified, it will be effective at the time of its receipt by the corporation.
The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation.
(b) Any vacancy, or newly created directorship 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 any director so chosen shall hold office until the
next annual election of directors by the stockholders and until his successor is
duly elected and qualified or until his earlier resignation or removal.
(c) Removal. Any director may be removed with or without
cause at any time by the affirmative vote of stockholders holding of record in
the aggregate at least a majority of the outstanding shares of stock of the
corporation, given at a special meeting of the stockholders called for that
purpose.
3.4 Meetings of the Board of Directors.
(a) The Board of Directors may hold their meetings,
both regular and special, either within or outside the State of Delaware.
(b) Regular meetings of the Board of Directors may be
held at such time and place as shall from time to time be determined by
resolution of the Board of Directors. No notice of such regular meetings shall
be required. If the date designated for any regular meeting be a legal holiday,
then the meeting shall be held on the next day which is not a legal holiday.
4
(c) The first meeting of each newly elected Board of
Directors shall be held immediately following the annual meeting of the
stockholders for the election of officers and the transaction of such other
business as may come before it. If such meeting is held at the place of the
stockholders' meeting, no notice thereof shall be required.
(d) Special meetings of the Board of Directors shall
be held whenever called by direction of the Chairman of the Board or at the
written request of a majority of the Board of Directors.
(e) The Secretary shall give notice to each director
of any special meeting of the Board of Directors by mailing the same at least
three days before the meeting or by telegraphing, telexing, telefaxing, or
delivering the same not later than the day before the meeting. Unless required
by law, such notice need not include a statement of the business to be
transacted at, or the purpose of, any such meeting. Any and all business may be
transacted at any meeting of the Board of Directors. No notice of any adjourned
meeting need be given. No notice to or waiver by any director shall be required
with respect to any meeting at which the director is present.
3.5 Quorum and Action. Unless provided otherwise by law or the
Certificate of Incorporation, a majority of the whole board shall constitute a
quorum for the transaction of business; but if there shall be less than a quorum
at any meeting of the Board, a majority of those present may adjourn the meeting
from time to time. The vote of a majority of the directors present at any
meeting at which a quorum is present shall be necessary to constitute the act of
the Board of Directors.
3.6 Presiding Officer and Secretary of Meeting. The Chairman
of the Board, or in his absence, Chief Executive Officer, or, in their absence a
member of the Board of Directors selected by the members present, shall preside
at meetings of the Board. The Secretary shall act as secretary of the meeting,
but in his absence the presiding officer may appoint a secretary of the meeting.
3.7 Action by Consent 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 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 or proceedings of the Board or committee.
3.8 Action by Telephonic Conference. Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or 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 participation in such a meeting shall
constitute presence in person at such meeting.
3.9 Committees.
(a) The Board of Directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of two 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 any member of
such committee or committees, the member or members thereof present at any such
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.
5
(b) Any such committee, to the extent provided in the
resolution or resolution of the Board of Directors, or in these by-laws, 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 of 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, these by-laws, 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.
3.10 Compensation of Directors. Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving the corporation in any other capacity and receiving
compensation therefor.
3.11 Contracts.
(a) Subject to the requirements in Section 7.5, no
contract or other transaction between this corporation and any other corporation
shall be impaired, affected or invalidated, nor shall any director be liable in
any way by reason of the fact that any one or more of the directors of this
corporation is or are interested in, or is a director or officer, or are
directors or officers of such other corporation, provided that such facts are
disclosed or made known to the Board of Directors.
(b) Subject to the requirements in Section 7.5, any
director, personally and individually, may be a party to or may be interested in
any contract or transaction of this corporation, and no director shall be liable
in any way by reason of such interest, provided that the fact of such interest
be disclosed or made known to the Board of Directors, and provided that the
Board of Directors shall authorize, approve or ratify such contract or
transaction by the vote (not counting the vote of any such director) of a
majority of a quorum, notwithstanding the presence of any such director at the
meeting at which such action is taken. Such director or directors may be counted
in determining the presence of a quorum at such meeting. This Section shall not
be construed to impair or invalidate or in any way affect any contract or other
transaction which would otherwise be valid under the law (common, statutory or
otherwise) applicable thereto.
ARTICLE IV
OFFICERS
4.1 Officers, Title, Elections, Terms.
(a) The elected officers of the corporation shall be
a Chairman of the Board, Chief Executive Officer, a President, one or more Vice
Presidents, a Treasurer and a Secretary, who shall be elected by the Board of
Directors at its annual meeting following the annual meeting of the
stockholders, to serve at the pleasure of the Board or otherwise as shall be
specified by the Board at the time of such election and until their successors
are elected and qualify.
6
(b) The Board of Directors may elect or appoint at
any time, and from time to time, additional officers or agents with such duties
as it may deem necessary or desirable. Such additional officers shall serve at
the pleasure of the Board or otherwise as shall be specified by the Board at the
time of such election or appointment. Two or more offices may be held by the
same person.
(c) Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time.
Such resignation shall be made in writing and shall take effect at the time
specified therein or, if no time be specified, at the time of its receipt by the
corporation. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
(e) The salaries of all officers of the corporation
shall be fixed by the Board of Directors.
4.2 Removal of Elected Officers. Any elected officer may be
removed at any time, either with or without cause, by resolution adopted at any
regular or special meeting of the Board of Directors by a majority of the
directors then in office.
4.3 Duties.
(a) Chairman of the Board. The Chairman of the Board
shall be the chief executive officer of the corporation. The Chairman of the
Board of Directors shall supervise and control the overall business and affairs
of the corporation and he or she shall have and perform such other duties as
from time to time may be assigned to him by the Board of Directors.
(b) Chief Executive Officer. The Chief Executive
Officer shall be the principal executive officer of the Corporation and, subject
to the control of the Chairman of the Board and the Board of Directors, shall
supervise and control all the business and affairs of the Corporation. He shall
see that all orders and resolutions of the Board of Directors are carried into
effect (unless any such order or resolution shall provide otherwise), and in
general shall perform all duties incident to the office of chief executive
officer and such other duties as may be prescribed by the Chairman of the Board
and the Board of Directors from time to time.
(c) President. The President shall report to the
Chairman of the Board and the Chief Executive Officer. The President, subject to
the control of the Chairman of the Board and the Board of Directors, shall
supervise and control all the business and affairs of the Corporation. He shall
see that all orders and resolutions of the Board of Directors are carried into
effect (unless any such order or resolution shall provide otherwise), 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.
(d) Vice President. Each Vice President, if any, shall
have such powers and perform such duties as the Board of Directors may determine
or as may be assigned to him by the Chairman of the Board or the Chief Executive
Officer. In the absence of the President or in the event of his death, or
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 election) shall perform the duties of the President, if and when so
directed by the Chairman of the Board or the Chief Executive Officer or the
Board of Directors, and when so acting, shall have all the powers and be subject
to all the restrictions upon the President.
7
(e) Treasurer. The Treasurer shall (1) have charge and
custody of and be responsible for all funds and securities of the Corporation;
(2) receive and give receipts for moneys due and payable to the Corporation from
any source whatsoever; (3) deposit all such moneys in the name of the
Corporation in such banks, trust companies, or other depositaries as shall be
selected by resolution of the Board of Directors; and (4) in general perform all
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, Chief Executive
Officer or by the Board of Directors. He shall, if required by the Board of
Directors, 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.
(f) Secretary. The Secretary shall (1) keep the
minutes of the meetings of the stockholders, the Board of Directors, the
Executive Committee (if designated), and all other committees, if any, of which
a secretary shall not have been appointed, in one or more books provided for
that purpose; (2) see that all notices are duly given in accordance with the
provisions of these by-laws and as required by law; (3) be custodian of the
corporate records and of the seal of the Corporation and see that the seal of
the Corporation is affixed to all documents, the execution of which on behalf of
the Corporation under its seal, is duly authorized; (4) keep a register of the
post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (5) have general charge of stock transfer books
of the Corporation; and (6) 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 Chairman of the Board, Chief Executive Officer or by the Board of
Directors.
(g) Assistant Secretaries and Assistant Treasurers.
At the request of the Secretary or in his absence or disability, one or more
Assistant Secretaries designated by him or by the Board of Directors shall have
all the powers of the Secretary for such period as he or it may designate or
until he or it revokes such designation. At the request of the Treasurer or in
his absence or disability, one or more Assistant Treasurers designated by him or
by the Board of Directors shall have all the powers of the Treasurer for such
period as he or it may designate or until he or it revokes such designation. 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 Chairman of the Board, Chief Executive Officer or the
Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Stock Certificates.
(a) 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, Chief Executive Officer, President or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
certifying the number of shares owned by him.
(b) If such certificate is countersigned by a
transfer agent other than the corporation or its employee, or by a registrar
other than the corporation or its employee, the signatures of the officers of
the corporation may be facsimiles, and, if permitted by law, any other signature
may be a facsimile.
8
(c) In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
issue.
(d) Certificates of stock shall be issued in such
form not inconsistent with the Certificate of Incorporation as shall be approved
by the Board of Directors. They shall be numbered and registered in the order in
which they are issued.
(e) All certificates surrendered to the corporation
shall be canceled with the date of cancellation, and shall be retained by the
Secretary, together with the powers of attorney to transfer and the assignments
of the shares represented by such certificates, for such period of time as shall
be prescribed from time to time by resolution of the Board of Directors.
5.2 Record Ownership. A record of the name and address of the
holder of each certificate, the number of shares represented thereby and the
date of issue thereof shall be made on the corporation's books. The corporation
shall be entitled to treat the holder of any share of stock as the holder in
fact thereof, and accordingly shall not be bound to recognize any equitable or
other claim to or interest in any share on the part of any other person, whether
or not it shall have express or other notice thereof, except as required by law.
5.3 Transfer of Record Ownership. Transfers of stock shall be
made on the books of the corporation only by direction of the person named in
the certificate or his attorney, lawfully constituted in writing, and only upon
the surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the corporation for
transfer, both the transferror and transferee request the corporation to do so.
5.4 Lost, Stolen or Destroyed Certificates. Certificates
representing shares of the stock of the corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates.
The corporation may maintain one or more transfer offices or agencies where
stock of the corporation shall be transferable. The corporation may also
maintain one or more registry offices where such stock shall be registered. The
Board of Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of
Record. The Board of Directors may fix, in advance, a date as the record date
for the purpose of determining stockholders entitled to notice of, or to vote
at, any meeting of the stockholders or any adjournment thereof, or the
stockholders entitled to receive payment of any dividend or other distribution
or the allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall be not more than sixty days nor less than ten days before the date of
a meeting of the stockholders, nor more than sixty days prior to any other
action requiring such determination of the stockholders. A determination of
stockholders of record entitled to notice 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.
9
5.7 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 Board of Directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1 Voting. Unless the Board of Directors shall otherwise
order, the Chairman of the Board shall have full power and authority, on behalf
of the corporation, to attend, act and vote at any meeting of the stockholders
of any corporation in which the corporation may hold stock, and at such meeting
to exercise any or all rights and powers incident to the ownership of such
stock, and to execute on behalf of the corporation a proxy or proxies empowering
another or others to act as aforesaid. The Board of Directors from time to time
may confer like powers upon any other person or persons.
6.2 General Authorization to Transfer Securities Held by the
Corporation.
(a) The Chairman of the Board is authorized and
empowered to transfer, convert, endorse, sell, assign, set over and deliver any
and all shares of stock, bonds, debentures, notes, subscription warrants, stock
purchase warrants, evidence of indebtedness, or other securities now or
hereafter standing in the name of or owned by the corporation, and to make,
execute and deliver, under the seal of the corporation, any and all written
instruments of assignment and transfer necessary or proper to effectuate the
authority hereby conferred.
(b) Whenever there shall be annexed to any instrument
of assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting forth
the names of persons who are then officers of the corporation, then all persons
to whom such instrument and annexed certificate shall thereafter come, shall be
entitled, without further inquiry or investigation and regardless of the date of
such certificate, to assume and to act in reliance upon the assumption that the
shares of stock or other securities named in such instrument were theretofore
duly and properly transferred, endorsed, sold, assigned, set over and delivered
by the corporation, and that with respect to such securities the authority of
these provisions of the by-laws and of such officers is still in full force and
effect.
ARTICLE VII
MISCELLANEOUS
7.1 Signatories. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name 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.
10
7.2 Seal. The seal of the corporation shall be in such form
and shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice. Whenever any notice of the
time, place or purpose of any meeting of the stockholders, directors or a
committee is required to be given under the law of the State of Delaware, the
Certificate of Incorporation or these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the holding thereof, or actual attendance at the meeting in person or, in the
case of any stockholder, by his attorney-in-fact, shall be deemed equivalent to
the giving of such notice to such persons.
7.4 Amendment of By-Laws.
(a) By Board of Directors. The by-laws of the
corporation may be altered, amended or repealed or new by-laws may be made or
adopted by the Board of Directors at any regular or special meeting of the
Board; provided that Section 3.3 and Section 7.4(b) of these By-Laws may be
altered, amended or repealed only by action of the stockholders acting pursuant
to Section 7.4(b) hereof; and provided further that Section 7.5 may only be
altered, amended or appealed by the majority vote of the corporation's
independent (i.e., non-employee) director.
(b) By Stockholders. The by-laws of the corporation
may also be altered, amended or repealed or new by-laws may be made or adopted
by the vote of a majority in interest of the stockholders represented and
entitled to vote upon the election of directors, at any meeting at which a
quorum is present.
(c) Indemnity. The corporation shall indemnify its
directors, officers, employees or agents to the fullest extent allowed by law.
7.5 Contracts with Affiliates. The corporation shall not enter
into any agreement, arrangement or understanding with any director, officer or
stockholder or any entity affiliated with any such person, unless the agreement,
arrangement or understanding has been approved by a majority of the
corporation's independent (i.e., non-employee) directors. Any such transaction
shall be on terms no less favorable to the corporation then could be obtained
from independent third parties.
7.6 Fiscal Year. Except as from time to time otherwise
determined by the Board of Directors, the fiscal year of the corporation shall
end on December 31.
11