EXHIBIT 3.2
BY - LAWS
OF
PHYLLIS MAXWELL'S GROUPS, INC.
(a New York corporation)
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ARTICLE I
SHAREHOLDERS
1. CERTIFICATES REPRESENTING SHARES. Certificates representing shares shall
set forth thereon any statements prescribed by applicable law and shall be
signed by the Chairman or a Vice-Chairman of the Board of Directors, if any, or
by the President or a Vice-President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer and may be sealed with the
corporate seal or a facsimile thereof. The signatures of the officers upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than the corporation itself or its
employee, or if the shares are listed on a registered national security
exchange. 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 its issue.
A certificate representing shares shall not be issued until the full amount
of consideration therefor has been paid except as Section 504 of the Business
Corporation Law may otherwise permit.
The corporation may issue a new certificate for shares in place of any
certificate theretofore issued by it, alleged to have been lost or destroyed,
and the Board of Directors may require the owner of any lost or destroyed
certificate, or his legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such certificate
or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may issue certificates for
fractions of a share which shall entitle the holder, in proportion to his
fractional holdings, to exercise voting rights, receive dividends, and
participate in liquidating distributions; or it may pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined; or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the corporation or of
its agent, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a shareholder except as therein
provided.
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3. SHARE TRANSFERS. Upon compliance with provisions restricting the
transferability of shares, if any, transfers of shares of the corporation shall
be made only on the share record 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
agent or a registrar, if any, and on surrender of the certificate or
certificates for such shares properly endorsed and the payment of all taxes due
thereon.
4. RECORD DATE FOR SHAREHOLDERS. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than sixty days nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. If no record date is fixed, the
record date for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders shall be at the close of the business on the
day next preceding the day on which notice is given, or, if no notice is given,
the day on which the meeting is held; the record date for determining
shareholders for any purpose other than that specified in the preceding clause
shall be at the close of business on the day on which the resolution of the
directors relating thereto is adopted. When a determination of shareholders of
record entitled to notice of or to vote at any meeting of shareholders has been
made as provided in this paragraph, such determination shall apply to any
adjournment thereof, unless directors fix a new record date under this paragraph
for the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of shareholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "shareholder" or "shareholders"
refers to an outstanding share or shares and to a holder or holders of record of
outstanding shares when the corporation is authorized to issue only one class of
shares, and said reference is also intended to include any outstanding share or
shares and any holder or holders of record of outstanding shares of any class
upon which or upon whom the Certificate of Incorporation confers such rights
where there are two or more classes or series of shares or upon which or upon
whom the Business Corporation Law confers such rights notwithstanding that the
Certificate of Incorporation may provide for more than one class or series of
shares, one or more of which are limited or denied such rights thereunder.
6. SHAREHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date fixed, from time to
time, by the directors, provided, that the first annual meeting shall be held on
a date within thirteen months after the formation of the corporation, and each
successive annual meeting shall be held on a date within thirteen months after
the date of the preceding annual meeting. A special meeting shall be held on the
date fixed by the directors except when the Business Corporation Law confers the
right to fix the date upon shareholders.
- PLACE. Annual meetings and special meetings shall be held at such place,
within or without the State of New York, as the directors may, from time to
time, fix. Whenever the directors shall fail to fix such place, or, whenever
shareholders entitled to call a special
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meeting shall call the same, the meeting shall be held at the office of the
corporation in the State of New York.
- CALL. Annual meetings may be called by the directors or by any officer
instructed by the directors to call the meeting. Special meetings may be called
in like manner except when the directors are required by the Business
Corporation Law to call a meeting, or except when the shareholders are entitled
by said Law to demand the call of a meeting.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Written notice of all
meetings shall be given, stating the place, date, and hour of the meeting, and,
unless it is an annual meeting, indicating that it is being issued by or at the
direction of the person or persons calling the meeting. The notice of an annual
meeting shall state that the meeting is called for the election of directors and
for the transaction of other business which may properly come before the
meeting, and shall (if any other action which could be taken at a special
meeting is to be taken at such annual meeting) state the purpose or purposes.
The notice of a special meeting shall in all instances state the purpose or
purposes for which the meeting is called; and, at any such meeting, only such
business may be transacted which is related to the purpose or purposes set forth
in the notice. If the directors shall adopt, amend, or repeal a By-Law
regulating an impending election of directors, the notice of the next meeting
for election of directors shall contain the statements prescribed by Section
601(b) of the Business Corporation Law. If any action is proposed to be taken
which would, if taken, entitle shareholders to receive payment for their shares,
the notice shall include a statement of that purpose and to that effect and
shall be accompanied by a copy of Section 623 of the Business Corporation Law or
an outline of its material terms. A copy of the notice of any meeting shall be
given, personally or by first class mail, not fewer than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the prescribed
period of time shall have been waived, to each shareholder at his record address
or at such other address which he may have furnished by request in writing to
the Secretary of the corporation. In lieu of giving a copy of such notice
personally or by first class mail as aforesaid, a copy of such notice may be
given by third class mail not fewer than twenty-four nor more than sixty days
before the date of the meeting. Notice by mail shall be deemed to be given when
deposited, with postage thereon prepaid, in a post office or official depository
under the exclusive care and custody of the United States post office
department. If a meeting is adjourned to another time or place, and, if any
announcement of the adjourned time or place is made at the meeting, it shall not
be necessary to give notice of the adjourned meeting unless the directors, after
adjournment, fix a new record date for the adjourned meeting. Notice of a
meeting need not be given to any shareholder who submits a signed waiver of
notice before or after the meeting. The attendance of a shareholder at a meeting
without protesting prior to the conclusion of the meeting the lack of notice of
such meeting shall constitute a waiver of notice by him.
- SHAREHOLDER LIST AND CHALLENGE. A list of shareholders as of the record
date, certified by the Secretary or other officer responsible for its
preparation or by the transfer agent, if any, shall be produced at any meeting
of shareholders upon the request thereat or prior thereto of any shareholder. If
the right to vote at any meeting is challenged, the inspectors of election, if
any, or the person presiding thereat, shall require such list of shareholders to
be produced as evidence of the right of the persons challenged to vote at such
meeting, and all persons who appear from such list to be shareholders entitled
to vote thereat may vote at such meeting.
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- CONDUCT OF MEETING. Meetings of the shareholders shall be presided over
by one of the following officers in the order of seniority and if present and
acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if
any, the President, a Vice-President, or, if none of the foregoing is in office
and present and acting, by a chairman to be chosen by the shareholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present, the chairman of the meeting shall appoint a secretary of
the meeting.
- PROXY REPRESENTATION. Every shareholder may authorize another person or
persons to act for him by proxy in all matters in which a shareholder is
entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
No proxy shall be valid after the expiration of eleven months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided by
the Business Corporation Law.
- INSPECTORS - APPOINTMENT. Inspectors may be appointed in the manner
prescribed by the provisions of Section 610 of the Business Corporation Law, but
need not be appointed except as otherwise required by those provisions.
- QUORUM. Except for a special election of directors pursuant to Section
603(b) of the Business Corporation Law, and except as herein otherwise provided,
the holders of a majority of the votes of outstanding shares shall constitute a
quorum at a meeting of shareholders for the transaction of any business. When a
quorum is once present to organize a meeting, it is not broken by the subsequent
withdrawal of any shareholders. The shareholders present may adjourn the meeting
despite the absence of a quorum.
- VOTING. Each share shall entitle the holder thereof to one vote. In the
election of directors, a plurality of the votes cast shall elect. Any other
action shall be authorized by a majority of the votes cast in favor of or
against such action except where the Business Corporation Law provides
otherwise.
7. SHAREHOLDER ACTION WITHOUT MEETINGS. Whenever under the provisions of
the Business Corporation Law shareholders are required or permitted to take any
action by vote, such action may be taken without a meeting on written consent,
signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted, in
accordance with the provisions of Section 615 of the Business Corporation Law.
ARTICLE II
GOVERNING BOARD
1. FUNCTIONS AND DEFINITIONS. The business of the corporation shall be
managed under the direction of a governing board, which is herein referred to as
the "Board of Directors" or "directors" notwithstanding that the members thereof
may otherwise bear the titles
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of trustees, managers, or governors or any other designated title, and
notwithstanding that only one director legally constitutes the Board. The word
"director" or "directors" likewise herein refers to a member or to members of
the governing board notwithstanding the designation of a different official
title or titles. The use of the phrase "entire board" herein refers to the total
number of directors which the corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. Each director shall be at least eighteen
years of age. A director need not be a shareholder, a citizen of the United
States, or a resident of the State of New York. The initial Board of Directors
shall consist of three persons. Thereafter, the number of directors constituting
the board shall be at least one. Subject to the foregoing limitation and except
for the first Board of Directors, such number may be fixed from time to time by
action of the shareholders or of the directors, or, if the number is not so
fixed, the number shall be one. The number of directors may be increased or
decreased by action of shareholders or of the directors, provided that any
action of the directors to effect such increase or decrease shall require the
vote of a majority of the entire Board. No decrease shall shorten the term of
any incumbent director.
3. ELECTION AND TERM. The first Board of Directors shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of shareholders and until their successors have been elected and
qualified. Thereafter, directors who are elected at an annual meeting of
shareholders, and directors who are elected in the interim by the shareholders
to fill vacancies and newly created directorships, shall hold office until the
next annual meeting of shareholders and until their successors have been elected
and qualified; and directors who are elected in the interim by the directors to
fill vacancies and newly created directorships shall hold office until the next
meeting of shareholders at which the election of directors is in the regular
order of business and until their successors have been elected and qualified. In
the interim between annual meetings of shareholders or of special meetings of
shareholders called for the election of directors, newly created directorships
and any vacancies in the Board of Directors, including vacancies resulting from
the removal of directors for cause or without cause, may be filled by the vote
of the remaining directors then in office, although less than a quorum exists.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall fix, except
that the first meeting of a newly elected Board shall be held as soon after its
election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or without the State
of New York as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for which the time
and place have been fixed. Special meetings may be called by or at the direction
of the Chairman of the Board, if any, of the President, or of a majority of the
directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for
regular meetings for which the time and place have been fixed. Written, oral, or
any other mode of notice of the time and place shall be given for special
meetings in sufficient time
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for the convenient assembly of the directors thereat. The notice of any meeting
need not specify the purpose of the meeting. Any requirement of furnishing a
notice shall be waived by any director who signs a waiver of notice before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
- QUORUM AND ACTION. A majority of the entire Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided such
majority shall constitute at least one-third of the entire Board. A majority of
the directors present, whether or not a quorum is present, may adjourn a meeting
to another time and place. Except as herein otherwise provided, the act of the
Board shall be the act, at a meeting duly assembled, by vote of a majority of
the directors present at the time of the vote, a quorum being present at such
time.
Any one or more members of the Board of Directors or of any committee
thereof may participate in a meeting of said Board or of any such committee by
means of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time, and
participation by such means shall constitute presence in person at the meeting.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present
and acting, shall preside at all meetings. Otherwise, the President, if present
and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed for
cause or without cause by the shareholders. One or more of the directors may be
removed for cause by the Board of Directors.
6. COMMITTEES. The Board of Directors, by resolution adopted by a majority
of the entire Board of Directors, may designate from their number one or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent provided in the resolution designating it, shall have the
authority of the Board of Directors with the exception of any authority the
delegation of which is prohibited by Section 712 of the Business Corporation
Law.
7. WRITTEN ACTION. Any action required or permitted to be taken by the
Board of Directors or by any committee thereof may be taken without a meeting if
all of the members of the Board of Directors or of any committee thereof consent
in writing to the adoption of a resolution authorizing the action. The
resolution and the written consents thereto by the members of the Board of
Directors or of any such committee shall be filed with the minutes of the
proceedings of the Board of Directors or of any such committee.
ARTICLE III
OFFICERS
The directors may elect or appoint a Chairman of the Board of Directors, a
President, one or more Vice-Presidents, a Secretary, one or more Assistant
Secretaries, a
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Treasurer, one or more Assistant Treasurers, and such other officers as they may
determine. The President may but need not be a director. Any two or more offices
may be held by the same.
Unless otherwise provided in the resolution of election or appointment,
each officer shall hold office until the meeting of the Board of Directors
following the next annual meeting of shareholders and until his successor has
been elected or appointed and qualified.
Officers shall have the powers and duties defined in the resolutions
appointing them.
The Board of Directors may remove any officer for cause or without cause.
ARTICLE IV
STATUTORY NOTICES TO SHAREHOLDERS
The directors may appoint the Treasurer or other fiscal officer and/or the
Secretary or any other officer to cause to be prepared and furnished to
shareholders entitled thereto any special financial notice and/or any financial
statement, as the case may be, which may be required by any provision of law.
ARTICLE V
BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of the shareholders, of the
Board of Directors, and of any committee which the directors may appoint, and
shall keep at the office of the corporation in the State of New York or at the
office of the transfer agent or registrar, if any, in said State, a record
containing the names and addresses of all shareholders, the number and class of
shares held by each, and the dates when they respectively became the owners of
record thereof. Any of the foregoing books, minutes, or records may be in
written form or in any other form capable of being converted into written form
within a reasonable time.
ARTICLE VI
CORPORATE SEAL
The corporate seal, if any, shall be in such form as the Board of Directors
shall prescribe.
ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be subject to
change from time to time, by the Board of Directors.
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ARTICLE VIII
CONTROL OVER BY-LAWS
The shareholders entitled to vote in the election of directors or the
directors upon compliance with any statutory requisite may amend or repeal the
By-Laws and may adopt new By-Laws, except that the directors may not amend or
repeal any By-Law or adopt any new By-Law, the statutory control over which is
vested exclusively in the said shareholders or in the incorporators. By-Laws
adopted by the incorporators or directors may be amended or repealed by the said
shareholders.
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