EXHIBIT 3.2
JAN BELL MARKETING, INC.
BYLAWS
(as amended through May, 1994)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE.
The registered office of the Corporation in the State of Delaware
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES.
The Corporation also may 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
STOCKHOLDERS
SECTION 1. STOCKHOLDER MEETINGS.
(a) TIME AND PLACE OF MEETINGS. Meetings of the stockholders shall
be held at such times and places, either within or without the State of
Delaware, as may from time to time be fixed by the Board of Directors and stated
in the notices or waivers of notice of such meetings.
(b) ANNUAL MEETING. The annual meeting of the stockholders shall be
held during the third week of the month of May in each year as designated by the
Board of Directors, or at such other date as may be designated by the Board of
Directors, for the election of directors and the transaction of such other
business properly brought before such annual meeting of the stockholders and
within the powers of the stockholders.
(c) SPECIAL MEETINGS. Special meetings of the stock-holders of the
Corporation for any purpose or purposes may be called at any time only by the
President, or the Board of Directors pursuant to a resolution approved by a
majority of the whole Board of Directors. Business transacted at any special
meeting of the stockholders shall be limited to the purposes stated in the
notice of such meeting.
(d) NOTICE OF MEETINGS. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, written notice of each meeting of
the stockholders shall be given not less than ten days nor more than sixty days
before the date of such meeting to each stockholder entitled to vote thereat,
directed to such stockholder's address as it appears upon the books of the
Corporation, such notice to specify the place, date, hour and purpose or
purposes of such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage prepaid, addressed
to the stockholder at his address as it appears on the stock ledger of the
Corporation. When a meeting of the stockholders is adjourned to another time
and/or place, notice need not be given of such adjourned meeting if the time and
place thereof are announced at the meeting of the stockholders at which the
adjournment is taken, unless the adjournment is for more than thirty days or
unless after the adjournment a new record date is fixed for such adjourned
meeting, in which event a notice of such adjourned meeting shall be given to
each stockholder of record entitled to vote thereat. Notice of the time, place
and purpose of any meeting of the stockholders may be waived in writing either
before or after such meeting and will be waived by any stockholder by such
stockholder's attendance thereat in person or by proxy. Any stockholder so
waiving notice of such a meeting shall be bound by the proceedings of any such
meeting in all respects as if due notice thereof had been given.
(e) QUORUM. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, the holders of not less than a majority of the
shares generally entitled to vote at any meeting of the stockholders, present in
person or by proxy, shall constitute a quorum. Directors shall be elected by a
plurality of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors. In all matters other than
the election of directors, the affirmative vote on a particular matter of the
majority of shares present in person or represented by proxy at the meeting and
entitled to vote on the particular subject matter shall be the act of the
stockholders. In particular and without limitation, broker nonvotes shall be
counted as present for quorum purposes at a meeting but shall not be counted for
voting purposes in the particular voting calculation. If a quorum shall fail to
attend any meeting of the stockholders, the presiding officer of such meeting
may adjourn such meeting from time to time to another place, date or time,
without notice other than announcement at such meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting of the stockholders as originally noticed. The foregoing
notwithstanding, if a notice of any adjourned special meeting of the
stockholders is sent to all stockholders entitled to vote thereat which states
that such adjourned special meeting will be held with those present in person or
by proxy constituting a quorum, then, except as otherwise required by law, those
present at such adjourned special meeting of the stockholders shall constitute a
quorum and all matters shall be determined by a majority of the votes cast at
such special meeting.
SECTION 2. DETERMINATION OF STOCKHOLDERS ENTITLED TO NOTICE AND TO
VOTE.
To determine the stockholders entitled to notice of any meeting
of the stockholders or to vote thereat, the Board
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of Directors may fix in advance a record date as provided in Article VII,
Section 1 of these Bylaws, or if no record date is fixed by the Board of
Directors, a record date shall be determined as provided by law.
SECTION 3. VOTING.
(a) Except as otherwise required by law, the Certificate of
incorporation or these Bylaws, each stockholder present in person or by proxy at
a meeting of the stockholders shall be entitled to one vote for each full share
of stock registered in the name of such stockholder at the time fixed by the
Board of Directors or by law as the record date of the determination of
stockholders entitled to vote at such meeting.
(b) Every stockholder entitled to vote at a meeting of the
stockholders may do so either (i) in person or (ii) by one or more agents
authorized by a written proxy executed by the person or such stockholder's duly
authorized agent, whether by manual signature, typewriting, telegraphic
transmission or otherwise. Every proxy must be executed in writing (which shall
include telegraphing or cabling) by the stockholder or by his duly authorized
agent, but no proxy shall be voted on after three years from its date, unless
the proxy provides for a longer period.
(c) Voting may be by voice or by ballot as the presiding officer of
the meeting of the stockholders shall determine. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by such stockholder's
proxy, and shall state the number of shares voted.
(d) In advance of or at any meeting of the stockholders, the Chairman
of the Board or President may appoint one or more persons as inspectors of
election (the "Inspectors") to act at such meeting. Such Inspectors shall take
charge of the ballots at such meeting. After the balloting on any question, the
Inspectors shall count the ballots cast and make a written report to the
secretary of such meeting of the results. Subject to the direction of the
chairman of the meeting, the duties of such Inspectors may further include
without limitation: determining the number of shares outstanding and the voting
power of each; the shares represented at the meeting; the existence of a quorum;
the authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
of consents and determining when the polls shall close; determining the result;
and doing such acts as may be proper to conduct the election or vote with
fairness to all stockholders. An Inspector need not be a stockholder of the
Corporation and any officer of the Corporation may be an
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Inspector on any question other than a vote for or against such officer's
election to any position with the Corporation or on any other questions in which
such officer may be directly interested. If there are three or more Inspectors,
the determination, report or certificate of a majority of such Inspectors shall
be effective as if unanimously made by all Inspectors.
SECTION 4. LIST OF STOCKHOLDERS.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make available, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, showing the address of and the number of shares
registered in the name of each such stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to such meeting, either
at a place within the city where such meeting is to e held and which place shall
be specified in the notice of such meeting, or, if not so specified, at the
place where such meeting is to be held. The list also shall be produced and
kept at the time and place of the meeting of the stockholders during the whole
time thereof, and may be inspected by any stockholder who is present.
SECTION 5. ACTION BY CONSENT OF STOCKHOLDERS.
Any action required or permitted to be taken by the stockholders must
be effected at a duly called annual or special meeting of such stockholders and
may not be effected by any consent in writing by such stockholders.
SECTION 6. CONDUCT OF MEETINGS.
The chairman of the meeting shall have full and complete authority to
determine the agenda, to set the procedures and order the conduct of meetings,
all as deemed appropriate by such person in his sole discretion with due regard
to the orderly conduct of business.
SECTION 7. NOTICE OF AGENDA MATTERS.
If a stockholder wishes to present to the Chairman of the Board or the
President an item for consideration as an agenda item or a meeting of
stockholders, he must give timely notice to the Secretary of the Corporation and
give a brief description of the business desired to be brought before the
meeting. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation, not less
than sixty days nor more than ninety days prior to the meeting; provided,
however, that in the event that less than seventy days' notice of prior
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public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the date on which such notice of
the date of the annual meeting was mailed or such public disclosure was made.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS.
Unless otherwise restricted by law, the Certificate of Incorporation
or these Bylaws as to action which shall be authorized or approved by the
stockholders, and subject to the duties of directors as prescribed by these
Bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be controlled by, the
Board of Directors. Without prejudice to such general powers, but subject to
the same limitations, the directors shall have the following powers:
(a) To select and remove all the other officers, agents and employees
of the Corporation, prescribe such powers and duties for them as may
not be inconsistent with law, the Certificate of Incorporation or
these Bylaws, fix their compensation and require from them security
for faithful service.
(b) To conduct, manage, and control the affairs and business of the
Corporation and to make such rules and regulations therefor not
inconsistent with law, the Certificate of Incorporation or these
Bylaws, as they may deem best.
(c) To change the principal office for the transaction of the
business of the Corporation from one location to another as provided
in Article I, Section 2, hereof; to designate any place within or
without the State of Delaware for the holding of any stockholders'
meeting or meetings and to adopt, make and use a corporate seal, and
to prescribe the forms of certificates of stock, and to alter the form
of such seal and of such certificates from time to time, as in their
judgment they may deem best, provided such seal and such certificates
shall at all times comply with the provisions of law.
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(d) To authorize the issue of shares of stock of the Corporation from
time to time, upon such terms as may be lawful, in consideration of
money paid, labor done or services actually rendered debts or
securities cancelled, or tangible or intangible property actually
received or, in the case of shares issued as a dividend, against
amounts transferred from surplus to stated capital.
(e) To borrow money and incur indebtedness from the purposes of the
Corporation, and to cause to be executed and delivered therefore, in
the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations or other, evidences of debt
and securities therefore.
(f) To adopt and put into effect such stock purchase plans and stock
option plans, both of general and restricted stock option plan
character, as they may deem advisable for the benefit of employees of
the Corporation, and to issue stock in accordance with and pursuant to
any such plan.
SECTION 2. ELECTION OF DIRECTORS.
(a) NUMBER, QUALIFICATION AND TERM OF OFFICE. The authorized number
of Directors of the Corporation shall be fixed from time to time by the Board of
Directors, but shall not be less than three nor more than thirteen. The exact
number of directors shall be determined from time to time, either by a
resolution or Bylaw provision duly adopted by a majority of the whole Board of
Directors. Directors need not be stock holders.
(b) RESIGNATION. Any director may resign from the Board of Directors
at any time by giving written notice to the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein, or if the time
when such resignation shall become effective shall not be so specified, then
such resignation shall take effect immediately upon its receipt by the
Secretary; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
(c) NOMINATION OF DIRECTORS. Candidates for director of the
Corporation shall be nominated only either by:
(i) the Board of Directors or a committee appointed by the Board
of Directors, or
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(ii) nomination at any stockholders' meeting by or on behalf of
any stockholder entitled to vote thereat; provided, that written
notice of such stockholder's intent to make such nomination or
nominations shall have been given, either by personal delivery or by
United States certified mail, postage prepaid, to the Secretary of the
Corporation not later than (1) with respect to an election to be held
at an annual meeting of the stockholders, thirty days in advance of
such annual meeting, and (2) with respect to an election to be held at
a special meeting of the stockholders for the election of directors,
the close of business on the tenth day following the date on which
notice of such special meeting is first given to the stockholders
entitled to vote thereat. Each such notice by a stockholder shall set
forth: (1) the name and address of the (A) stockholder who intends to
make the nomination and (B) person or persons to be nominated; (2) a
representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear
in the person or by proxy at the meeting to nominate the person or
persons specified in the notice; (3) a description of all arrangements
or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the stockholder;
(4) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy or
information statement filed with the Securities and Exchange
Commission pursuant to the proxy rules promulgated under the
Securities Exchange Act of 1934, as amended, or any successor statute
thereto, had the nominee been nominated, or intended to be nominated,
by the Board of Directors; and (5) the manually signed consent of each
nominee to serve as a director of the Corporation if so elected. The
presiding officer of the meeting of the stockholders may refuse to
acknowledge the nominee of any person not made in compliance with the
foregoing procedure.
(d) PREFERRED STOCK PROVISIONS. Notwithstanding the foregoing
whenever the holders of any one or more classes or series of stock issued by the
Corporation having a preference over the Common Stock as to dividends or upon
liquidation shall
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have the right, voting separately by class or series, to elect directors at an
annual or special meeting of the stockholders, the election, term of office,
filling of vacancies, nomination, terms of removal and other features of such
directorships shall be governed by the terms of Article Fourth of the
Certificate of Incorporation and the resolutions establishing such class or
series adopted pursuant thereto.
SECTION 3. MEETINGS OF THE BOARD OF DIRECTORS.
(a) REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held without call at the following times:
(i) at such times as the Board of Directors shall from time to
time by resolution determine; and
(ii) one-half hour prior to any special meeting of the
stockholders and immediately following the adjournment of any annual
or special meeting of the stockholders.
Notice of all such regular meetings hereby is dispensed with.
(b) SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the President or the Board of Directors pursuant to a resolution
approved by a majority of the whole Board of Directors. Notice of the time and
place of special meetings of the Board of Directors shall be given by the
Secretary or an Assistant Secretary of the Corporation, or by any other officer
authorized by the Board of Directors. Such notice shall be given to each
director personally or by mail, messenger, telephone or telegraph at such
director's business or residence address. Notice by mail shall be deposited in
the United States mail, postage prepaid, not later than the third day prior to
the date fixed for such special meeting. Notice by telephone or telegraph shall
be sent, and notice given personally or be messenger shall be delivered, at
least twenty-four hours prior to the time set for such special meeting. Notice
of a special meeting of the Board of Directors need not contain a statement of
the purpose of such special meeting.
(c) ADJOURNED MEETINGS. A majority of directors present at any
regular or special meeting of the Board of Directors or any committee thereof,
whether or not constituting a quorum, may adjourn any meeting from time to time
until a quorum is present or otherwise. Notice of the time and place of holding
any adjourned meeting shall not be required if the time and place are fixed at
the meeting adjourned.
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(d) PLACE OF MEETINGS. Unless a resolution of the Board of Directors
or the written consent of all members of the Board of Directors given either
before or after the meeting and filed with the Secretary of the Corporation
designates a different place within or without the State of Delaware, meetings
of the Board of Directors, both regular and special, shall be held at the
Corporation's principal executive offices.
(e) PARTICIPATION BY TELEPHONE. Members of the Board of Directors or
any committee may participate in any meeting of the Board of Directors or
committee through the use of conference telephone or similar communications
equipment, so long as all members participating in such meeting can hear one
another, and such participation shall constitute presence in person at such
meeting.
(f) QUORUM. At all meetings of the Board of Directors or any
committee thereof, a majority of the total number of directors of the entire
then authorized Board of Directors or such committee shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any such meeting at which there is a quorum shall be the act of the
Board of Directors or any committee, except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws. A meeting of
the Board of Directors or any committee at which a quorum initially is present
may continue to transact business notwithstanding the withdrawal of directors so
long as any action is approved by at least a majority of the required quorum for
such meeting.
(g) WAIVER OF NOTICE. The transactions of any meeting of the Board
of Directors or any committee, however called and noticed or wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice, if a quorum be present and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, or a consent to
hold such meeting, or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
SECTION 5. ACTION WITHOUT MEETING.
Any action required or permitted to be taken by the Board of Directors
at any meeting or at any meeting of a committee may be taken without a meeting
if all members of the Board of Directors or such committee consent in writing
and the writing or writings are filed with the minutes of the proceedings of the
Board of Directors or such committee.
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SECTION 6. COMPENSATION OF DIRECTORS.
Unless otherwise restricted by law, the Certificate of Incorporation
or these Bylaws, 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 committees of the Board of Directors may be allowed like compensation for
attending committee meetings.
SECTION 7. COMMITTEES OF THE BOARD.
(a) COMMITTEES. The Board of Directors may, by resolution adopted by
a majority of the Board of Directors, designate one or more committees of the
Board of Directors, each committee to consist of one or more directors. Each
such committee, to the extent permitted by law, the Certificate of Incorporation
and these Bylaws, shall have and may exercise such of the powers of the Board of
Directors in the management and affairs of the Corporation as may be prescribed
by the resolutions creating such committee. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. 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. The Board of Directors shall have the power, at any time for any
reason, to change the members of any such committee, to fill vacancies, and to
discontinue any such committee.
(b) MINUTES OF MEETINGS. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
(c) AUTHORIZED COMMITTEES.
(1) AUDIT COMMITTEE. The Board of Directors shall appoint an
Audit Committee consisting of at least two directors, all of whom shall be
independent of management. The Audit Committee shall review the financial
affairs and procedures of the Corporation from time to time with management,
meet with the auditors of the Corporation to review
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the financial statements and procedures, and make reports and recommendations to
the Board of Directors concerning their periodic reviews and selection of
auditors.
(2) EXECUTIVE COMMITTEE. The Board of Directors shall appoint
an Executive Committee consisting of at least three members of the Board of
Directors elected by the whole Board. Members of the Executive Committee shall
serve at the pleasure of the Board of Directors and each member of the Executive
Committee may be removed with or without cause at any time by the Board of
Directors. Vacancies shall be filled by the Board of Directors. The Executive
Committee may exercise the powers of the Board of Directors and the supervision
of the management of the business and affairs of the Corporation, but shall not
possess any authority prohibited to it by law.
(3) ACQUISITION COMMITTEE. The Board of Directors shall appoint
an Acquisition Committee consisting of at least three members of the Board of
Directors elected by the whole Board. Members of the Acquisition Committee
shall serve at the pleasure of the Board of Directors and each member of the
Acquisition Committee may be removed with or without cause at any time by the
Board of Directors. Vacancies shall be filled by the Board of Directors. The
Acquisition Committee shall develop criteria and identify types of acquisitions
and shall continuously examine opportunities for acquiring business entities
which will enhance the Company's ability to expand its operations.
(4) COMPENSATION COMMITTEE. The Board of Directors shall
appoint a Compensation Committee consisting of at least two members of the Board
of Directors appointed by the whole board. The Compensation Committee may
exercise powers with respect to all compensation matters for officers and other
employees and with respect to any stock option or other compensation plans
approved by the Board of Directors and, if applicable, the shareholders of the
Company, including selection of optionees, determinations of fair market value,
amounts of shares granted and like duties.
SECTION 8. INTERESTED DIRECTORS.
In addition to the statutory and corporate common law of Delaware, no
contract of transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officers
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose if (i) the material facts as to
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his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS.
(a) NUMBER. The officers of the Corporation shall be chosen by the
Board of Directors and may include a Chairman of the Board of Directors (who
must be a director as chosen by the Board of Directors) and shall include a
President, a Vice President, a Secretary and a Treasurer. The Board of
Directors also may appoint one or more Assistant Secretaries or Assistant
Treasurers and such other officers and agents with such powers and duties as it
shall deem necessary. Any Vice President may be given such specific designation
as may be determined from time to time by the Board of Directors. Any number of
offices may be held by the same person, unless otherwise required by the law,
the Certificate of Incorporation or these Bylaws. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
(b) ELECTION AND TERM OF OFFICE. The officers shall be elected
annually by the Board of Directors at its regular meeting following the annual
meeting of the stockholders and each officer shall hold office until the next
annual election of officers and until such officer's successor is elected and
qualified, or until such officer's death, resignation or removal. Any officer
may be removed at any time, with or without cause, by a vote of the majority of
the whole Board of Directors. Any vacancy occurring in any office may be filled
by the Board of Directors.
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(c) SALARIES. The salaries of all officers of the Corporation shall
be fixed by the Board of Directors or a committee thereof from time to time.
SECTION 2. CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if there be a Chairman, shall
preside at all meetings of the stockholders and the Board of Directors and shall
have such other power and authority as may from time to time be assigned by the
Board of Directors.
SECTION 3. PRESIDENT.
The President shall be the chief executive officer of the Corporation,
shall preside at all meetings of the stockholders and the Board of Directors (if
a Chairman of the Board has not been elected) and shall see that all orders and
resolutions of the Board of Directors are carried into effect. Subject to the
provisions of these Bylaws and to the direction of the Board of Directors, the
President shall have the general and active management of the business of the
Corporation, may execute all contracts and any mortgages, conveyances or other
legal instruments in the name of and on behalf of the Corporation, but this
provision shall not prohibit the delegation of such powers by the Board of
Directors to some other officer, agent or attorney-in-fact of the Corporation.
SECTION 4. VICE PRESIDENTS.
In the absence or disability of the President, the Vice Presidents in
order of their rank as fixed by the Board of Directors, or if not ranked, the
Vice President designated by the Board of Directors, shall perform all the
duties of the president, and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the President. The Vice Presidents shall
have such other powers and perform such other duties as from time to time may be
prescribed for them, respectively, by the Board of Directors or these Bylaws.
SECTION 5. SECRETARY AND ASSISTANT SECRETARIES.
The Secretary shall record or cause to be recorded, in books provided
for the purpose, minutes of the meetings of the stockholders, the Board of
Directors and all committees of the Board of Directors; see that all notices are
duly given in accordance with the provisions of these Bylaws as required by law;
be custodian of all corporate records (other than financial) and of the seal of
the Corporation, and have authority to affix the seal to all documents requiring
it and attest to the same; give, or cause to be given, notice of all meetings of
the
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stockholders and special meetings of the Board of Directors; and, in general,
shall perform all duties incident to the office of Secretary and such other
duties as may, from time to time, be assigned to him by the Board of Directors
or by the President. At the request of the Secretary, or in the Secretary's
absence or disability, any Assistant Secretary shall perform any of the duties
of the Secretary and, when so acting, shall have all the powers of, and be
subject to all the restrictions upon, the Secretary.
SECTION 6. TREASURER AND ASSISTANT TREASURERS.
The Treasurer shall keep or cause to be kept the books of account of
the Corporation and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board of Directors or
the President. The Treasurer, subject to the order of the Board of Directors,
shall have custody of all funds and securities of the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements. The
Treasurer shall perform all other duties commonly incident to his office and
shall perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time. At the request of
the Treasurer, or in the Treasurer's absence or disability, any Assistant
Treasurer may perform any of the duties of the Treasurer and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Treasurer. Except where by law the signature of the Treasurer is required, each
of the Assistant Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other instruments of the
Corporation.
ARTICLE V
INDEMNIFICATION AND INSURANCE
SECTION 1. ACTIONS AGAINST DIRECTORS AND OFFICERS.
The Corporation shall indemnify to the full extent permitted by, and
in the manner permissible under, the laws of the State of Delaware any person
made, or threatened to be made, a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a director or
officer of the Corporation or any predecessor of the Corporation, or served any
other enterprise as a director or officer at the request of the Corporation or
any predecessor of the Corporation.
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SECTION 2. CONTRACT.
The provisions of Section 1 of this Article V shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while such Bylaw is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter based in whole or in part upon any
such state of facts.
SECTION 3. NONEXCLUSIVITY.
The rights of indemnification provided by this Article V shall not be
deemed exclusive of any other rights to which any director or officer of the
Corporation may be entitled apart from the provisions of this Article V.
SECTION 4. INDEMNIFICATION OF EMPLOYEES AND AGENTS.
The Board of Directors in its discretion shall have the power on
behalf of the Corporation to indemnify any person, other than a director or
officer, made a party to any action, suit or proceeding by reason of the fact
that such person or such person's testator or intestate, is or was an employee
or agent of the Corporation.
SECTION 5. INSURANCE.
Upon a resolution or resolutions duly adopted by the Board of
Directors of the Corporation, the Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation against any liability asserted against such person and
incurred by him in any capacity, or arising out of his capacity as such, whether
or not the Corporation would have the power to indemnify such person against
such liability under the provisions of applicable law, the Certificate of
Incorporation or these Bylaws.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES.
Unless otherwise provided by a resolution of the Board of Directors,
the shares of the Corporation shall be represented by a certificate. The
certificates of stock of the Corporation shall be numbered and shall be entered
in the books
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of the Corporation as they are issued. They shall exhibit the holder's name and
number of shares and shall be signed by or in the name of the Corporation by (a)
the Chairman of the Board of Directors, the President or any Vice President and
(b) the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary. Any or all of the signatures on a certificate may be facsimile. In
case any officer of the Corporation, transfer agent or registrar who has signed,
or whose facsimile signature has been placed upon such certificate, shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at the
date of issuance.
SECTION 2. CLASSES OF STOCK.
(a) 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 series thereof and the qualification, limitations, or
restrictions of such preferences or rights shall be set forth in full or
summarized on the face or back of the certificate that 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 that 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 or rights.
(b) Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law (including Sections 151, 156, 202(a),
or 218(a) of the General Corporation Law of the State of Delaware) or 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 quallifications, limitations or restrictions of such preferences
or rights.
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SECTION 3. TRANSFER.
Upon surrender to the Corporation or the transferagent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation 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.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the Corporation.
SECTION 4. RECORD OWNER.
The Corporation shall be entitled to treat the holder of record of any
share or shares 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 such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of the State of
Delaware.
SECTION 5. LOST CERTIFICATES.
The Board of Directors may direct a new certificate or certificates or
uncertificated shares 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 or uncertificated shares, 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 the Board of Directors shall require and 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.
ARTICLE VII
MISCELLANEIOUS
SECTION 1. RECORD DATE.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of
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the stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any change, conversion or exchange or stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days prior to the date of such meeting nor more than sixty days prior to any
other action. If not fixed by the Board of Directors, the record date shall be
determined as provided by law.
(b) A determination of stockholders of record entitled to notice of
or to vote at a meeting of the stockholders shall apply to any adjournments of
the meeting, unless the Board of Directors fixes a new record date for the
adjourned meeting.
(c) Holders of stock on the record date are entitled to notice and to
vote or to receive the dividend, distribution or allotment of rights or to
exercise the rights, as the case may be, notwithstanding any transfer of the
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by law, the Certificate of Incorporation or
these Bylaws.
SECTION 2. EXECUTION OF INSTRUMENTS.
The Board of Directors may, in its discretion, determine the method
and designate the signatory officer or officers, or other persons, to execute
any corporate instrument or document or to sign the corporate name without
limitation, except where otherwise provided by law, the Certificate of
Incorporation or these Bylaws. Such designation may be general or confined to
specific instances.
SECTION 3. VOTING OF SECURITIES OWNED BY THE CORPORATION.
All stock and other securities of other corporations held by the
Corporation shall be voted, and all proxies with respect thereto shall be
executed, by the person so authorized by resolution of the Board of Directors,
or, in the absence of such authorization, by the President.
SECTION 4. CORPORATE SEAL.
The Corporation shall have a corporate seal in such form as shall be
prescribed and adopted by the Board of Directors.
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SECTION 5. CONSTRUCTION AND DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules
of construction and definitions in the General Corporation Law of the State of
Delaware and the Certificate of Incorporation shall govern the construction of
these Bylaws.
SECTION 6. AMENDMENTS.
Subject to the provisions of the Certificate of Incorporation and
these Bylaws, these Bylaws may be altered, amended or repealed at any annual
meeting of the stockholders (or at any special meeting thereof duly called for
that purpose) by a majority vote of the shares represented and entitled to vote
thereat; provided, that in the notice of any such meeting, notice of such
purpose shall be given. Subject to the laws of the State of Delaware, the
Certificate of Incorporation and these Bylaws, the Board of Directors may by
majority vote of the whole Board of Directors amend these Bylaws, or enact such
other Bylaws as in their judgment may be advisable for the regulation of the
conduct of the affairs of the Corporation.
SECTION 7. SECTION 203.
The Corporation expressly elects not to be governed by Section 203 of
the General Corporation Law of Delaware.
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