EXHIBIT (3.2)
AMENDED AND RESTATED BYLAWS
OF
DAIRY MART CONVENIENCE STORES, INC.
(A Delaware Corporation)
ARTICLE I
Offices
Section 1. Principal Office in Connecticut. The
principal office of DAIRY MART CONVENIENCE STORES, INC. (the
"Corporation") in the State of Connecticut shall be in the Town
of Enfield, County of Hartford.
Section 2. Registered Office in Delaware. The
Corporation shall have and maintain a registered office in the
State of Delaware as required by Delaware law.
Section 3. Other Offices. The Corporation may have a
principal or other office at such other place or places, either
within or without the State of Connecticut or Delaware, as the
Board of Directors may from time to time determine or as shall be
necessary or appropriate for the conduct of the business of the
Corporation.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meetings. All annual and special
meetings of stockholders shall be held at such place or places,
within or without the State of Delaware, as may from time to time
be called and fixed solely by the Board of Directors in
accordance with these Bylaws, or as shall be specified in the
respective notices or waivers of notice thereof.
Section 2. Annual Meetings. Each annual meeting of
stockholders for the election of directors and the transaction of
other business shall be held on the second Thursday of June, in
each year, and shall be called solely by order of the Board of
Directors. If this date shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At
each annual meeting the stockholders entitled to vote shall elect
a Board of Directors and may transact such other corporate
business as may be brought before the meeting.
If the election of directors shall not be held on the day
designated herein for the annual meeting, or at any adjournment
thereof, the Board of Directors shall cause a special meeting of
the stockholders for the election of directors to be held as soon
thereafter as may be convenient. At such special meeting the
stockholders may elect directors and transact other business with
the same force and effect as at an annual meeting of the
stockholders duly called and held.
Section 3. Special Meetings. A special meeting of the
stockholders (or of any class thereof entitled to vote at a
special meeting) for any purpose or purposes may be called at any
time solely by order of the Board of Directors. No stockholder,
in its, his, or her capacity as a stockholder, may call a special
meeting of the stockholders. The record date for any special
meeting of the stockholders shall be set solely by order of the
Board of Directors.
Section 4. Notice of Meetings. Except as otherwise
expressly required by law, notice of each meeting of
stockholders, whether annual or special, shall be given at least
ten (10) days before the date on which the meeting is to be held
to each stockholder of record entitled to vote thereat by
delivering a notice thereof to him personally or by mailing such
notice in a postage prepaid envelope directed to him at his
address as it appears on the stock ledger of the Corporation,
unless he shall have filed with the Secretary of the Corporation
a written request that notices intended for him be directed to
another address, in which case such notice shall be directed to
him at the address designated in such request. Every notice of a
special meeting of the stockholders, besides stating the time and
place of the meeting, shall state briefly the objects or purposes
thereof. Notices of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such
meeting in person or by proxy; and, if any stockholder shall, in
person or by attorney thereunto authorized, in writing or by
telegraph, cable or wireless, waive notice of any meeting of the
stockholders, whether prior to or after such meeting, notice
thereof need not be given to him. Notice of any adjourned meeting
of the stockholders shall not be required to be given, except as
expressly required by law.
Section 5. List of Stockholders. It shall be the duty of
the Secretary or other officer of the Corporation who shall have
charge of the stock ledger to prepare and make, at least ten (10)
days' before every election of directors, a complete list of the
stockholders entitled to vote thereat, arranged in alphabetical
order, and showing the address of each stockholder and the number
of shares registered in his name. Such list shall be open for ten
(10) days' at the place where said election is to be held or at
some other specified place within the Town of Enfield, State of
Connecticut to the examination of any stockholder during ordinary
business hours and shall be produced and kept at the time and
place of the election during the whole time thereof and subject
to the inspection of any stockholder who may be present. The
original or duplicate stock ledger shall be the only evidence as
to who are the stockholders entitled to examine such list or the
books of the Corporation or to vote in person or by proxy at such
election.
Section 6. Quorum. At each meeting of the stockholders,
the holders of record of (i) a majority of the voting power of
the issued and outstanding stock of all classes of the
Corporation entitled to vote at such meeting, present in person
or by proxy, shall constitute a quorum for the transaction of
business, with respect to those matters as to which all classes
of stock vote together, and (ii) one-third (1/3) of the issued
and outstanding stock of any class of stock of the Corporation
entitled to vote at such meeting, present in person or by proxy,
shall constitute a quorum for the transaction of business with
respect to those matters as to which such class is entitled (by
law, the Certificate of Incorporation or these Bylaws) to vote
separately from all other classes, except where otherwise
provided by law, the Certificate of Incorporation or these
Bylaws. In the absence of a quorum, any officer entitled to
preside at, or act as Secretary of, such meeting shall have the
power to adjourn the meeting from time to time until a quorum
shall be constituted. At any such adjourned meeting at which a
quorum shall be present any business may be transacted which
might have been transacted at the meeting as originally called,
but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment
or adjournments thereof.
Section 7. Voting. Except as otherwise provided in the
Certificate of Incorporation, at every meeting of stockholders
each holder of record of the issued and outstanding stock of the
Corporation entitled to vote at such meeting shall be entitled to
one vote in person or by proxy for each such share of stock
entitled to vote held by such stockholder, but no proxy shall be
voted after three (3) years from its date unless the proxy
provides for a longer period, and, except where the transfer
books of the Corporation shall have been closed or a date shall
have been fixed as the record date for the determination of
stockholders entitled to vote, no share of stock shall be voted
on at any election for directors which shall have been
transferred on the books of the Corporation within twenty (20)
days next preceding such election of directors. Shares of its own
capital stock belonging to the Corporation directly or indirectly
shall not be voted upon directly or indirectly. At all meetings
of the stockholders, a quorum being present, all matters shall be
decided by majority vote of the shares of stock entitled to vote
held by stockholders present in person or by proxy, except as
otherwise required by the laws of the State of Delaware. Unless
demanded by a stockholder of the Corporation present in person or
by proxy at any meeting of the stockholders and entitled to vote
thereat or so directed by the Chairman of the meeting or required
by the laws of the State of Delaware, the vote thereat on any
question need not be by ballot. Unless otherwise provided in the
Certificate of Incorporation, all elections of directors shall be
by ballot. On a vote by ballot, each ballot shall be signed by
the stockholder voting, or in his name by his proxy, if there be
such proxy, and shall state the number of shares voted by him and
the number of votes to which each share is entitled.
Unless otherwise provided in the Certificate of
Incorporation, any action required or permitted to be taken at
any annual or special meeting of the stockholders of the
Corporation may be taken without a meeting, without prior notice
and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of the
minimum number of shares of outstanding stock that would be
necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Such
consent or consents shall be delivered to the Corporation by
delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested. Prompt notice of the taking of
corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not
consented in writing.
Section 8. Advance Notice of Stockholder Business. At an
annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be
(a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly
brought before the meeting by a stockholder of record. For
business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation,
not less than sixty (60) days nor more than ninety (90) days
prior to the meeting; provided, however, that if both (i) fewer
than seventy (70) days Advance Notice of the meeting is given to
stockholders, and (ii) such meeting is held more than thirty (30)
days before or after the corresponding date of the annual meeting
held in the preceding year, then such written notice shall be
received not later than the close of the tenth day following the
day on which notice of the meeting was mailed to stockholders. As
used in this Section 8, "Advance Notice" to the stockholders
shall be deemed to have been given on the date of any quarterly
report of the Corporation, letter to stockholders, press release
or other communication to stockholders disclosing the date of the
next annual meeting and provided that the annual meeting is in
fact held on such date or within thirty (30) days after such
date. Any such Advance Notice would be in addition to, but not in
substitution for, the Notice of Meeting provided for in Section 4
above.
A stockholder's notice to the Secretary shall set forth as
to each matter the stockholder proposes to bring before the
annual meeting: (a) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and
address, as they appear on the Corporation's books, of the
stockholder proposing such business, (c) the class and number of
shares of stock of the Corporation of which the stockholder is
the Beneficial Owner (as that term is defined in the Certificate
of Incorporation of the Corporation), and (d) any material
interest of the stockholder in such business. Notwithstanding
anything in the By-Laws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the
procedures set forth in this Section 8. The Chairman of the
annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 8, and
if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the meeting shall
not be transacted.
Notwithstanding the provisions of this Section 8, notice of
stockholder nominations of persons for election as directors
shall be as set forth in the Certificate of Incorporation.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business and
affairs of the Corporation shall be managed by the Board of
Directors.
Section 2. Number and Term of Office. The number of
directors shall be fixed from time to time by resolution of the
Board of Directors but shall not be less than three (3).
Directors need not be stockholders. Each director shall hold
office until the annual meeting of the stockholders next
following his election and until his successors shall have been
elected and shall qualify, or until his death, resignation or
removal.
Section 3. Quorum and Manner of Acting. Unless otherwise
provided by law, the presence of one-third (1/3) of the whole
Board of Directors, and in any case not less than two (2)
directors, shall be necessary to constitute a quorum for the
transaction of business. In the absence of a quorum, a majority
of the directors present may adjourn the meeting from time to
time until a quorum shall be present. Notice of any adjourned
meeting need not be given. At all meetings of the directors, a
quorum being present, all matters shall be decided by the
affirmative vote of a majority of the directors present, except
as otherwise required by the laws of the State of Delaware, and
except for the calling of any annual or special meeting of the
stockholders by the Board of Directors which shall require the
affirmative vote of a majority of the whole Board of Directors.
Section 4. Place of Meetings, Books and Records. The
Board of Directors may hold its meetings and keep the books and
records of the Corporation, at such place or places within or
without the State of Delaware, as the Board may from time to time
determine.
Section 5. Annual Meeting. As promptly as practicable
after each annual meeting of stockholders for the election of
directors, the Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of
other business. Notice of such meeting need not be given unless
at such meeting the Board of Directors shall or may consider the
calling of an annual or special meeting of the stockholders, in
which case, notice of the meeting of the Board of Directors shall
be given in accordance with Section 7 of this Article III. Such
meeting of the Board of Directors may be held at any other time
or place as shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors or in a
waiver of notice thereof signed by all the directors.
Section 6. Regular Meetings. Regular meetings of the
Board of Directors may be held at such time and place, within or
without the State of Delaware, as shall from time to time be
determined by the Board of Directors. After there has been such
determination, and notice thereof has been given to each member
of the Board of Directors, regular meetings may be held without
further notice being given, unless at any such meeting the Board
of Directors shall or may consider the calling of an annual or
special meeting of the stockholders, in which case, notice of the
meeting of the Board of Directors shall be given in accordance
with Section 7 of this Article III.
Section 7. Special Meetings and Notice Thereof. Special
meetings of the Board of Directors shall be held whenever called
by the Chairman of the Board, the President or by a majority of
the directors. Notice of each such meeting shall be mailed to
each director, addressed to him at his residence or usual place
of business, at least two (2) days before the date on which the
meeting is to be held, or shall be sent to him at such place by
telegraph, cable, radio or wireless, or be delivered personally
or by telephone, not later than the day before the day on which
such meeting is to be held; provided, however, that notice of any
meeting shall be provided to each director as provided above not
less than ten (10) days before any meeting at which the calling
of any annual or special meeting of the stockholders shall or may
be considered. Each such notice shall state the time and place
of the meeting and the purpose thereof. In lieu of the notice to
be given as set forth above, a waiver thereof in writing, signed
by the director or directors entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto for purposes of this Section 7. No notice to
or waiver by any director with respect to any special meeting
shall be required if such director shall be present at said
meeting.
Section 8. Resignation. Any director of the Corporation
may resign at any time by giving written notice thereof to the
Chairman of the Board, the President or the Secretary of the
Corporation. The resignation of any director shall take effect
upon receipt of notice thereof or at such later time as shall be
specified in such notice; and, unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective. When one or more directors shall
resign from the Board, effective at a future date, a majority of
the directors then in office including those who have so resigned
shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations
shall become effective.
Section 9. Vacancies. Vacancies and newly created
directorships resulting form any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole
remaining director, unless otherwise provided by the Certificate
of Incorporation or the laws of the State of Delaware.
Section 10. Removal. As provided in the Certificate of
Incorporation, any director, or the entire Board of Directors of
the Corporation, may be removed at any time, with or without
cause, only by the affirmative vote by the holders of two-thirds
(2/3) or more of the voting shares of the class or classes of
stock that elected the director to be removed; provided, however,
that such vote shall be taken at a meeting of the shareholders
called for the purpose of removing directors and such vote may
not be taken by the written consent of shareholders in lieu of a
meeting or otherwise than at a meeting.
Section 11. Compensation of Directors. Directors, as
such, shall not receive any stated salary for their services,
but, by resolution of the Board, a specific sum fixed by the
Board plus experience may be allowed for attendance at each
regular or special meeting of the Board or any committee thereof;
provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation or any
subsidiary thereof in any other capacity and receiving
compensation therefor.
Section 12. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one
or more committees, each committee to consist of two or more
directors of the Corporation, which, to the extent provided in
the resolution or in these Bylaws, shall have and may exercise
such powers of the Board in the management of the business and
affairs of the Corporation (including the power to authorize the
seal of the Corporation to be affixed to all papers which may
require it), as the Board may by resolution determine and specify
in the respective resolutions appointing them, subject to such
restrictions as may be contained in the Certificate of Incorpor-
ation. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by
the Board of Directors. The committees shall keep regular minutes
of their proceedings and report the same to the Board when
required. A majority of all the members of any such committee may
fix its rules of procedure, determine its action and fix the time
and place, whether within or without the State of Connecticut, of
its meetings and specify what notice thereof, if any, shall be
given, unless the Board of Directors shall otherwise by resolu-
tion provide. The Board of Directors shall have power to change
the membership of any such committee at any time, to fill
vacancies thereon and to discharge any such committee, either
with or without cause, at any time. Each member of any such
committee shall be paid such fee, if any, as shall be fixed by
the Board of Directors for each meeting of such committee which
he shall attend and, in addition, such transportation and other
expenses actually incurred by him in going to the meeting of such
committee and returning therefrom as the Board of Directors shall
approve.
Section 13. Action Without Meeting. Any action required
or permitted to be taken at any meeting of the Board of Directors
or of any committee thereof may be taken without a meeting if
prior to such action a written consent thereto is signed by all
members of the Board or of such committee, as the case may be,
and such written consent is filed with the minutes or proceedings
of the Board or committee.
ARTICLE IV
Officers
Section 1. Number. The principal officers of the
Corporation shall be a Chairman of the Board, a President, one or
more Vice Presidents, a Treasurer and a Secretary. The
Corporation may also have, at the discretion of the Board of
Directors, such other officers as may be appointed in accordance
with the provisions of these Bylaws. One person may hold the
offices and perform the duties of any two or more of said
offices, except the offices and duties of President and
Secretary.
Section 2. Election or Appointment and Term of Office.
The principal officers of the Corporation shall be chosen
annually by the Board of Directors at the annual meeting thereof.
Each such officer shall hold office until his successor shall
have been duly chosen and shall qualify, or until his death or
until he shall resign or shall have been removed in the manner
hereinafter provided.
Section 3. Subordinate Officers. In addition to the
principal officers enumerated in Section 1 of this Article IV,
the Corporation may have one or more Assistant Treasurers, one or
more Assistant Secretaries and such other officers, agents and
employees as the Board of Directors may deem necessary, each of
whom shall hold office for such period, have such authority, and
perform such duties as the Chairman of the Board, the President,
or the Board of Directors may from time to time determine. The
Board of Directors may delegate to any principal officer the
power to appoint and to remove any such subordinate officers,
agents or employees.
Section 4. Removal. Any officer may be removed, either
with or without cause, at any time, by resolution adopted by the
Board of Directors at any regular meeting of the Board or at any
special meeting of the Board called for that purpose at which a
quorum is present.
Section 5. Resignations. Any officer may resign at any
time by giving written notice to the Chairman of the Board or to
the Board of Directors or to the President or to the Secretary.
Any such resignation shall take effect upon receipt of such
notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 6. Vacancies. A vacancy in any office may be
filled for the unexpired portion of the term in the manner
prescribed in these Bylaws for election or appointment to such
office for such term.
Section 7. Chairman of the Board. The Chairman of the
Board shall preside at all meetings of stockholders and at all
meetings of the Board of Directors. He shall perform such other
duties and have such other powers as the Board of Directors may
from time to time prescribe.
Section 8. President. The President shall be the chief
executive officer of the Corporation and as such shall have
general supervision of the affairs of the Corporation, subject to
the control of the Board of Directors. He shall be ex officio a
member of all standing committees. In the absence of the Chairman
of the Board the President shall preside at all meetings of
stockholders and at all meetings of the Board of Directors.
Subject to the control and discretion of the Board of Directors,
the President may enter into any contract or execute and deliver
any instrument in the name and on behalf of the Corporation. In
general, he shall perform all duties incident to the office of
President, as herein defined, and all such other duties as from
time to time may be assigned to him by the Board of Directors.
Section 9. Vice Presidents. The Vice Presidents in the
order of their seniority, unless otherwise determined by the
Board of Directors, shall, in the absence or disability of the
President, perform the duties and exercise the powers of the
President. They shall perform such other duties and have such
other powers as the Chairman of the Board, the President or the
Board of Directors may from time to time prescribe.
Section 10. Treasurer. The Treasurer shall have charge
and custody of, and be responsible for, all funds and securities
of the Corporation and shall deposit all such funds in the name
of the Corporation in such banks or other depositories as shall
be selected by the Board of Directors. He shall exhibit at all
reasonable times his books of account and records to any of the
directors of the Corporation upon application during business
hours at the office of the Corporation where such books and
records shall be kept; when requested by the Board of Directors,
he shall render a statement of the condition of the finances of
the Corporation at any meeting of the Board or at the annual
meeting of stockholders; he shall receive, and give receipt for,
moneys due and payable to the Corporation from any source
whatsoever; and in general, he shall perform all the duties
incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Chairman of the Board,
the President or the Board of Directors. The Treasurer shall give
such bond, if any, for the faithful discharge of his duties as
the Board of Directors may require.
Section 11. Secretary. The Secretary, if present, shall
act as secretary at all meetings of the Board of Directors and of
the stockholders and keep the minutes thereof in a book or books
to be provided for that purpose; he shall see that all notices
required to be given by the Corporation are duly given and
served; he shall have charge of the stock records of the
Corporation; he shall see that all reports, statements and other
documents required by law are properly kept and filed; and in
general, he shall perform all the duties incident to the office
of Secretary and such other duties as from time to time may be
assigned to him by the Chairman of the Board, the President or
the Board of Directors.
Section 12. Salaries. The salaries of the principal
officers shall be fixed from time to time by the Board of
Directors, and the salaries of any other officers may be fixed by
the Chairman of the Board or the President.
ARTICLE V
Shares and Their Transfer
Section 1. Certificate for Stock. Every stockholder of
the Corporation shall be entitled to a certificate or
certificates, to be in such form as the Board of Directors shall
prescribe, certifying the number of shares of the capital stock
of the Corporation owned by him.
Section 2. Stock Certificates. Any stock certificate
which certifies the number of shares owned by any holder of stock
of the Corporation shall be numbered in the order in which it
shall be issued and shall be signed by the Chairman of the Board
or the President or any Vice President, and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation and shall have the seal of the Corporation
affixed thereto; provided, however, that, where any such
certificate is signed (i) by a transfer agent or an assistant
transfer agent or (ii) by a transfer clerk acting on behalf of
the Corporation and a registrar, if the Board shall by resolution
so authorize, the signature of such Chairman of the Board,
President, Vice President, Treasurer, Secretary, Assistant
Treasurer or Assistant Secretary and the seal of the Corporation
may be facsimiles thereof. In case any officer or officers of the
Corporation who shall have signed, or whose facsimile signature
or signatures shall have been used on, any such certificate shall
cease to be such officer or officers, whether by reason of death,
resignation or otherwise, before such certificate shall have been
delivered by the Corporation, such certificate may nevertheless
be adopted by the Corporation and be issued and delivered as
though the person or persons who signed such certificate, or
whose facsimile signature or signatures shall have been affixed
thereto, had not ceased to be such officer or officers.
Section 3. Stock Ledger. A record shall be kept by the
Secretary, transfer agent or by any other officer, employee or
agent designated by the Board of Directors of the name of the
person, firm or corporation holding the stock represented by such
certificate, the number of shares represented by such
certificate, and the date thereof, and in case of cancellation,
the date of cancellation.
Section 4. Cancellation. Every certificate surrendered
to the Corporation for exchange or transfer shall be cancelled,
and no new certificate or certificates shall be issued in
exchanged for any existing certificate until such existing
certificate shall have been so cancelled, except in cases
provided for in Section 7 of this Article V.
Section 5. Transfers of Stock. Transfers of shares of
the capital stock of the Corporation shall be made only on the
books of the Corporation by the registered holder thereof, or by
his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the Corporation or with
a transfer clerk or a transfer agent appointed as in Section 6 of
this Article V provided, and on surrender of the certificate or
certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand
on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation; provided, however,
that whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact, if known to the
Secretary of the Corporation, shall be so expressed in the entry
of transfer.
Section 6. Regulations. The Board of Directors may make
such rules and regulations as it may deem expedient, not
inconsistent with the Certificate of Incorporation or these
Bylaws, concerning the issue, transfer and registration of
certificates for shares of the stock of the Corporation. It may
appoint, or authorize any principal officer or officers to
appoint, one or more transfer clerks or one or more transfer
agents and one or more registrars, and may require all
certificates of stock to bear the signature or signatures of any
of them.
Section 7. Lost, Stolen, Mutilated or Destroyed Certifi-
cates. As a condition to the issue of a new certificate of stock
in the place of any certificate theretofore issued and alleged to
have been lost, stolen, mutilated or destroyed, the Board of
Directors, in its discretion, may require the owner of any such
certificate, or his legal representatives, to give the
Corporation a bond in such sum and in such form as it may direct
to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft, mutilation or
destruction of any such certificate or the issuance of such new
certificate. Proper evidence of such loss, theft, mutilation or
destruction shall be procured for the Board of Directors, if
required. The Board of Directors, in its discretion, may
authorize the issuance of such new certificate without any bond
when in its judgment it is proper to do so.
Section 8. Record Date. The Board may fix a date in
advance of not exceeding sixty (60) days' preceding, the date of
any meeting of stockholders (nor less than ten (10) days' before
the date of such meeting), or the date for the payment of any
dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall
go into effect or a date in connection with obtaining any written
consent to corporate action without a meeting, as a record date
for the determination of the stockholders entitled to notice of,
and to vote at, such meeting, and any adjournment thereof, or to
receive payment of any dividend, or to receive any such allotment
of rights, or to exercise the rights in respect of any such
change, conversion, or exchange of capital stock or to give such
written consent, as the case may be, notwithstanding any transfer
of any stock on the books of the Corporation after any record
date so fixed.
ARTICLE VI
Miscellaneous Provisions
Section 1. Corporate Seal. The Board of Directors shall
provide a corporate seal, which shall be in the form of a circle
and shall bear the name of the Corporation and words and figures
showing that it was incorporated in the State of Delaware. The
Secretary shall be the custodian of the seal. The Board of
Directors may authorize a duplicate seal to be kept and used by
any other officer.
Section 2. Fiscal Year. The fiscal year of the
Corporation shall be as specified by the Board of Directors.
Section 3. Voting of Stocks Owned by the Corporation.
The Board of Directors may authorize any person in behalf of the
Corporation to attend, vote and grant proxies to be used at any
meeting of stockholders of any corporation (except this
Corporation) in which the Corporation may hold stock.
Section 4. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of
funds legally available therefor, at any regular or special
meeting declare dividends upon the capital stock of the
Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the
Corporation available for dividends such sum or sums as the
directors from time to time in their discretion may deem proper
for working capital or as a reserve fund to meet contingencies or
for equalizing dividends or for such other purposes as the
directors may deem conducive to the interests of the Corporation.
ARTICLE VII
Amendments
Section 1. The Bylaws of the Corporation may be adopted,
altered, amended or repealed or new bylaws may be adopted by the
Board of Directors at any regular or special meeting upon the
affirmative vote of both sixty-seven (67%) percent of the Whole
Board of Directors and majority (but in any event not less than
four) of the Continuing Directors as defined in the Certificate
of Incorporation of the Corporation. The Bylaws of the
Corporation may also be adopted, altered, amended or repealed or
new bylaws may be adopted by the shareholders only upon the
affirmative vote as to all stock held (1) by the holders of not
less than sixty-seven (67%) percent of the Outstanding Voting
Shares and (2) by an Independent Majority of Shareholders, as
defined in the Certificate of Incorporation of the Corporation.
Such a vote may be taken at any annual or special meeting of the
shareholders if notice of such alteration, amendment, repeal or
adoption of the new bylaws shall be contained in the notice of
such annual or special meeting. No change of the time or place of
the meeting for the election of directors shall be made within
sixty (60) days' next before the day on which such a meeting is
to be held, and, in case of any change of such time or place,
notice thereof shall be given to each stockholder in person or by
letter mailed to his last known post-office address at least
twenty (20) days before the meeting is held. Bylaws, whether made
or altered by the stockholders or by the Board of Directors,
shall be subject to alteration or repeal by the stockholders as
in this Article VII above provided.