BY-LAWS
OF
CORNERSTONE BRANDS, INC.
ARTICLE 1 - Stockholders
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1.1 Place of Meetings. All meetings of stockholders shall be held at such
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place within or without the State of Delaware as may be designated from time to
time by the Board of Directors or the President or Chief Executive Officer or,
if not so designated, at the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election
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of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors or the President or Chief Executive Officer (which date shall not be a
legal holiday in the place where the meeting is to be held) at the time and
place to be fixed by the Board of Directors or the President or Chief Executive
Officer and stated in the notice of the meeting. If no annual meeting is held
in accordance with the foregoing provisions, the Board of Directors shall cause
the meeting to be held as soon thereafter as convenient. If no annual meeting
is held in accordance with the foregoing provisions, a special meeting may be
held in lieu of the annual meeting, and any action taken at that special meeting
shall have the same effect as if it had been taken at the annual meeting, and in
such case all references in these By-laws to the annual meeting of the
stockholders shall be deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of stockholders may be called at
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any time by the President or Chief Executive Officer or by the Board of
Directors. Business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the notice of
meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, written
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notice of each meeting of stockholders, whether annual or special, shall be
given not less than 10 nor more than 60 days before the date of the meeting to
each stockholder entitled to vote at such meeting. The notices of all meetings
shall state the place, date and hour of the meeting. The notice of a special
meeting shall state, in addition, the purpose or purposes for which the meeting
is called. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
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1.5 Voting List. The officer who has charge of the stock ledger of the
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corporation shall prepare, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, at a place within the city where the meeting is to
be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be inspected by any
stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
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Incorporation or these By-laws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
the meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business.
1.7 Adjournments. Any meeting of stockholders may be adjourned to any
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other time and to any other place at which a meeting of stockholders may be held
under these By-laws by the stockholders present or represented at the meeting
and entitled to vote, although less than a quorum, or, if no stockholder is
present, by any officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than 30 days if the time and place of the adjourned meeting are
announced at the meeting at which adjournment is taken, unless after the
adjournment a new record date is fixed for the adjourned meeting. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each
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share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
in the Certificate of Incorporation. Each stockholder of record entitled to
vote at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or dissent
in person or may authorize another person or persons to vote or act for him by
written proxy executed by the stockholder or his authorized agent and delivered
to the Secretary of the corporation. No such proxy shall be voted or acted upon
after three years from the date of its execution, unless the proxy expressly
provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, the
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holders of shares of stock representing a majority of the votes cast on a matter
(or if there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, the holders of shares of stock of
that class representing a
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majority of the votes cast on a matter) shall decide any matter to be voted upon
by the stockholders at such meeting, except when a different vote is required by
express provision of law, the Certificate of Incorporation or these By-Laws.
When a quorum is present at any meeting, any election by stockholders shall be
determined by a plurality of the votes cast on the election.
1.10 Action without Meeting. Any action required or permitted to be taken
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at any annual or special meeting of stockholders of the corporation may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of all of
the outstanding shares of stock that would be entitled to vote thereon at a
meeting of stockholders.
1.11. Conduct of Meetings.
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(a) Rules, Regulations and Procedures. The Board of Directors of the
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corporation may adopt by resolution such rules, regulations and procedures for
the conduct of any meeting of stockholders of the corporation as it shall deem
appropriate. Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the officer of the corporation
presiding at any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such officer, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the officer of the corporation presiding at the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized and constituted proxies or such
other persons as shall be determined; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (v) limitations on the
time allotted to questions or comments by participants. Unless and to the
extent determined by the Board of Directors or the officer of the corporation
presiding at the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
(b) Closing of Polls. The officer of the corporation presiding at any
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meeting of stockholders shall announce at the meeting when the polls for each
matter to be voted upon at the meeting will be closed. If no announcement is
made, the polls shall be deemed to have closed upon the final adjournment of the
meeting. After the polls close, no ballots, proxies or votes or any revocations
or changes thereto may be accepted.
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1.12 Nomination of Directors.
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(a) Except for (i) any directors entitled, in accordance with the
Certificate of Incorporation, to be elected by the holders of any class or
series of preferred stock or any other securities of the corporation entitled to
elect directors upon specified circumstances and (ii) any directors elected in
accordance with Section 2.8 hereof by the Board to fill a vacancy, only persons
who are nominated in accordance with the procedures set forth in this Section
1.12 shall be eligible for election as directors. Nomination for election to
the Board of Directors of the corporation at a meeting of stockholders may be
made (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the corporation entitled to vote for the election of directors at
such meeting pursuant to timely notice thereof in writing to the Secretary in
accordance with the procedures set forth in this Section 1.12. To be timely, a
stockholder's notice must be delivered to, or mailed and received by, the
Secretary at the principal executive offices of the corporation as follows: (a)
in the case of an election of directors at an annual meeting of stockholders,
not less than 70 days nor more than 90 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 20 days, or delayed by
more than 70 days, from such anniversary date, to be timely, a stockholder's
notice must be so delivered or received not earlier than the ninetieth day prior
to such annual meeting and not later than the close of business on the later of
the seventieth day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such annual meeting is first
made; or (b) in the case of an election of directors at a special meeting of
stockholders, not earlier than the ninetieth day prior to such special meeting
and not later than the close of business on the later of the seventieth day
prior to such special meeting or the tenth day following the day on which public
announcement of the date of such special meeting is first made; or (c) in the
case of the election of directors at the Company's annual meeting of
stockholders held in 1999, no sooner than March 1, 1999 and no later than March
21, 1999. The stockholder's notice to the Secretary shall set forth: (a) as to
each proposed nominee (i) the name, age, business address and, if known,
residence address of each such nominee, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of stock of the
corporation which are beneficially owned by such person, and (iv) any other
information concerning such person that must be disclosed as to nominees in
proxy solicitations pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (or any successor provision thereto); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
corporation's books, of such stockholder and (ii) the class and number of shares
of the corporation which are beneficially owned by such stockholder; and (c) as
to the beneficial owner, if any, on whose behalf the nomination is made (i) the
name and address of such person and (ii) the class and number of shares of the
corporation which are beneficially owned by such person. In addition, to be
effective, the stockholder's notice must be accompanied by the written consent
of the
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proposed nominee to serve as a director if elected. The corporation may require
any proposed nominee to furnish such other information as may reasonably be
required by the corporation to determine the eligibility of such proposed
nominee to serve as a director of the corporation.
(b) The officer of the corporation presiding at any meeting shall, if
the facts warrant, determine that a nomination was not properly made in
accordance with the provisions of this Section 1.12, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded.
(c) Nothing in the foregoing provision shall obligate the corporation
or the Board of Directors to include in any proxy statement or other stockholder
communication distributed on behalf of the corporation or the Board of Directors
information with respect to any nominee for directors submitted by a
stockholder.
1.13 Notice of Business at Annual Meetings.
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(a) At any 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 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. For business to be properly brought before an
annual meeting by a stockholder, (i) if such business relates to the election of
directors of the corporation, the procedures in Section 1.12 must be complied
with and (ii) if such business relates to any other matter, the stockholder must
have given timely notice thereof in writing to the Secretary in accordance with
the procedures set forth in this Section 1.13. To be timely, a stockholder's
notice must be delivered to, or mailed and received by, the Secretary at the
principal executive offices of the corporation (a) not less than 70 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting or (b) in the case of the Company's annual meeting of stockholders held
in 1999, no sooner than March 1, 1999 and no later than March 21, 1999;
provided, however, that in the event that the date of the annual meeting is
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advanced by more than 20 days, or delayed by more than 70 days, from such
anniversary date, to be timely, a stockholder's notice must be so delivered or
received not earlier than the ninetieth day prior to such annual meeting and not
later than the close of business on the later of the seventieth day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. The 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, and
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the name and address of the beneficial owner, if any, on whose behalf the
proposal is made, (c) the class and number of shares of the corporation which
are beneficially owned by the stockholder and beneficial owner, if any, and (d)
any material interest of the stockholder or such beneficial owner, if any, in
such business. Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at any annual meeting of stockholders except in
accordance with the procedures set forth in this Section 1.13 and except that
any stockholder proposal which complies with Rule 14a-8 of the proxy rules (or
any successor provision) promulgated under the Securities Exchange Act of 1934,
as amended, and is to be included in the corporation's proxy statement for an
annual meeting of stockholders shall be deemed to comply with the requirements
of this Section 1.13.
(b) The officer of the corporation presiding at any meeting shall, if
the facts warrant, determine that business was not properly brought before the
meeting in accordance with the provisions of this Section 1.13, and if he should
so determine, he shall so declare to the meeting and such business shall not be
transacted.
ARTICLE 2 - Directors
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2.1 General Powers. The business and affairs of the corporation shall be
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managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law or the
Certificate of Incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2 Number of Directors. The number of directors of the corporation shall
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not be less than three. The exact number of directors within the limitation
specified in the preceding sentence shall be fixed from time to time pursuant to
a resolution adopted by the Board of Directors.
2.3 Classes of Directors. The Board of Directors shall be and is divided
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into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class. If a fraction is contained in
the quotient arrived at by dividing the authorized number of directors by three,
then, if such fraction is one-third, the extra director shall be a member of
Class I, and if such fraction is two-thirds, one of the extra directors shall be
a member of Class I and one of the extra directors shall be a member of Class
II, unless otherwise provided for from time to time by resolution adopted by the
Board of Directors.
2.4 Terms of Office. Each director shall serve for a term ending on the
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date of the third annual meeting following the annual meeting at which such
director was elected; provided, that each initial director in Class I shall
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serve for a term ending on
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the date of the annual meeting next following the end of the corporation's
fiscal year ending January 30, 1999; each initial director in Class II shall
serve for a term ending on the date of the annual meeting next following the end
of the corporation's fiscal year ending January 29, 2000; and each initial
director in Class III shall serve for a term ending on the date of the annual
meeting next following the fiscal year ending February 3, 2001; and provided
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further, that the term of each director shall continue until the election and
qualification of his/her successor and shall be subject to his/her earlier
death, resignation or removal.
2.5 Allocation of Directors among Classes in the Event of Increases or
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Decreases in the Number of Directors. In the event of any increase or decrease
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in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as a director of the class of which he/she is a
member until the expiration of his/her current term, subject to his/her earlier
death, resignation or removal, and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned by
the Board of Directors among the three classes of directors in accordance with
the provisions of this Article 2.
2.6 Resignation. Any director may resign by delivering his written
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resignation to the corporation at its principal office or to the President or
Chief Executive Officer or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the
happening of some other event.
2.7 Removal. If and for so long as the Board of Directors is classified
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pursuant to Section 141(d) of the General Corporation Law of Delaware,
stockholders may effect the removal of a director or the entire Board of
Directors only for cause, unless the Certificate of Incorporation provides
otherwise.
2.8 Vacancies. Unless and until filled by the stockholders, any vacancy
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in the Board of Directors, however occurring, including a vacancy resulting from
an enlargement of the Board, may be filled by a vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. A director elected to fill a vacancy shall be elected to hold office
until the next election of the class for which such director shall have been
chosen, subject to the election and qualification of his/her successor and to
his/her earlier death, resignation or removal.
2.9 Regular Meetings. Regular meetings of the Board of Directors may be
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held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
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2.10 Special Meetings. Special meetings of the Board of Directors may be
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held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board, President or Chief Executive Officer,
two or more directors, or by one director in the event that there is only a
single director in office.
2.11 Notice of Special Meetings. Notice of any special meeting of
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directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone at
least 48 hours in advance of the meeting, (ii) by sending a telegram or telex,
or delivering written notice by hand, to his last known business or home address
at least 48 hours in advance of the meeting, or (iii) by mailing written notice
to his last known business or home address at least 72 hours in advance of the
meeting. A notice or waiver of notice of a meeting of the Board of Directors
need not specify the purposes of the meeting.
2.12 Meetings by Telephone Conference Calls. Directors or any members of
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any committee designated by the directors may participate in a meeting of the
Board of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall constitute
presence in person at such meeting.
2.13 Quorum; Action at Meeting. A majority of the total number of
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directors then in office shall constitute a quorum at all meetings of the Board
of Directors. In the event one or more of the directors shall be disqualified
to vote at any meeting, then the required quorum shall be reduced by one for
each such director so disqualified; provided, however, that in no case shall
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less than one-third of the number of directors fixed pursuant to this Article 2
constitute a quorum. If at any meeting of the Board of Directors there shall be
less than such a quorum, a majority of those present may adjourn the meeting
from time to time. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board of Directors unless a greater number is
required by law, by the Certificate of Incorporation or by these By-Laws.
2.14 Action by Consent. Any action required or permitted to be taken at
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any meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing, and the written
consents are filed with the minutes of proceedings of the Board or committee.
2.15 Committees. The Board of Directors may designate one or more
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committees, each committee to consist of one or more of the directors of the
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corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the corporation
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Each such committee shall keep minutes and make such reports
as the Board of Directors may from time to time request. Except as the Board of
Directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the directors or in such
rules, its business shall be conducted as nearly as possible in the same manner
as is provided in these By-laws for the Board of Directors.
2.16 Compensation of Directors. Directors may be paid such compensation
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for their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE 3 - Officers
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3.1 Enumeration. The officers of the corporation shall consist of a
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President and/or Chief Executive Officer, a Secretary, a Treasurer and such
other officers with such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice-Chairman of the Board, and one or more
Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of
Directors may appoint such other officers as it may deem appropriate.
3.2 Election. The President and/or Chief Executive Officer, Treasurer and
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Secretary shall be elected annually by the Board of Directors at its first
meeting following the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more
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offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
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Incorporation or by these By-laws, each officer shall hold office until his
successor is
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elected and qualified, unless a different term is specified in the vote choosing
or appointing him, or until his earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering his
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written resignation to the corporation at its principal office or to the
President, Chief Executive Officer or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following his resignation or removal, or any right to damages on
account of such removal, whether his compensation be by the month or by the year
or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in
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any office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of President or Chief
Executive Officer, Treasurer and Secretary. Each such successor shall hold
office for the unexpired term of his predecessor and until his successor is
elected and qualified, or until his earlier death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of
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Directors may appoint a Chairman of the Board and may designate the Chairman of
the Board as Chief Executive Officer. If the Board of Directors appoints a
Chairman of the Board, he shall perform such duties and possess such powers as
are assigned to him by the Board of Directors. If the Board of Directors
appoints a Vice-Chairman of the Board, he shall, in the absence or disability of
the Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of Directors.
3.8 President and Chief Executive Officer. The President or the Chief
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Executive Officer shall, subject to the direction of the Board of Directors,
have general charge and supervision of the business of the corporation. Unless
otherwise provided by the Board of Directors, he shall preside at all meetings
of the stockholders and, if he is a director, at all meetings of the Board of
Directors. The President and/or the Chief Executive Officer shall perform such
other duties and shall have such other powers as the Board of Directors may from
time to time prescribe. If the offices of President and Chief Executive Officer
are held by the same
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individual or if only one such office is filled, the terms of the first two
sentences of this Section 3.8 shall apply to the individual holding both such
offices or the one office which is filled. If the offices of President and Chief
Executive Officer are held by different individuals, the terms of the first two
sentences of this Section 3.8 shall apply only to the Chief Executive Officer.
3.9 Vice Presidents. Any Vice President shall perform such duties and
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possess such powers as the Board of Directors or the President or Chief
Executive Officer may from time to time prescribe. In the event of the absence,
inability or refusal to act of the President or Chief Executive Officer, the
Vice President (or if there shall be more than one, the Vice Presidents in the
order determined by the Board of Directors) shall perform the duties of the
President or Chief Executive Officer and when so performing shall have all the
powers of and be subject to all the restrictions upon the President or Chief
Executive Officer. The Board of Directors may assign to any Vice President the
title of Executive Vice President, Senior Vice President or any other title
selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries. The Secretary shall perform such
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duties and shall have such powers as the Board of Directors or the President or
Chief Executive Officer may from time to time prescribe. In addition, the
Secretary shall perform such duties and have such powers as are incident to the
office of the secretary, including without limitation the duty and power to give
notices of all meetings of stockholders and special meetings of the Board of
Directors, to attend all meetings of stockholders and the Board of Directors and
keep a record of the proceedings, to maintain a stock ledger and prepare lists
of stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or Chief Executive Officer or the
Secretary may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Secretary, the Assistant Secretary, (or if
there shall be more than one, the Assistant Secretaries in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such
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duties and shall have such powers as may from time to time be assigned to him by
the Board of Directors or the President or Chief Executive Officer. In
addition, the Treasurer shall perform such duties and have such powers as are
incident to the office of treasurer, including without limitation the duty and
power to keep and be
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responsible for all funds and securities of the corporation, to deposit funds of
the corporation in depositories selected in accordance with these By-laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the President or Chief Executive Officer or the
Treasurer may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Treasurer, the Assistant Treasurer, (or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Salaries. Officers of the corporation shall be entitled to such
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salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE 4 - Capital Stock
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4.1 Issuance of Stock. Unless otherwise voted by the stockholders and
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subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2 Transfers. Except as otherwise established by rules and regulations
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adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation
or by these By-laws, the corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote with respect
to such stock, regardless of any transfer, pledge or other disposition of such
stock until the shares have been transferred on the books of the corporation in
accordance with the requirements of these By-laws.
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4.3 Lost, Stolen or Destroyed Certificates. The corporation may issue a
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new certificate of stock in place of any previously issued certificate alleged
to have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
4.4 Record Date. The Board of Directors may fix in advance a date as a
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record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 10 days after the date of adoption of a
record date for a written consent without a meeting, nor more than 60 days prior
to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is properly delivered to the corporation. The record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE 5 - General Provisions
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5.1 Fiscal Year. The fiscal year of the corporation shall be fixed from
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time to time by resolution of the Board of Directors.
5.2 Corporate Seal. The corporate seal shall be in such form as shall be
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approved by the Board of Directors.
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5.3 Waiver of Notice. Whenever any notice whatsoever is required to be
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given by law, by the Certificate of Incorporation or by these By-laws, a waiver
of such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telegraph, cable or any other
available method, whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.4 Voting of Securities. Except as the directors may otherwise
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designate, the President or Chief Executive Officer or Treasurer may waive
notice of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by this corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an
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Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
5.6 Certificate of Incorporation. All references in these By-laws to the
----------------------------
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.7 Transactions with Interested Parties. No contract or transaction
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between the corporation and one or more of the directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of the 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 officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his 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 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;
(2) The material facts as to his 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
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(3) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board of Directors, 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.
5.8 Severability. Any determination that any provision of these By-laws
------------
is for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-laws.
5.9 Pronouns. All pronouns used in these By-laws shall be deemed to
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refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
ARTICLE 6 - Amendments
----------------------
6.1 By the Board of Directors. These By-laws may be altered, amended or
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repealed or new by-laws may be adopted by the affirmative vote of a majority of
the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2 By the Stockholders. These By-laws may also be altered, amended or
-------------------
repealed or new by-laws may be adopted by the affirmative vote of the holders of
a majority of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote at any regular meeting of stockholders, or at
any special meeting of stockholders, provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been stated in the
notice of such special meeting. Notwithstanding the preceding sentence, the
Certificate of Incorporation or these By-Laws, and notwithstanding the fact that
a lesser percentage may be specified by law, the affirmative vote of the holders
of at least seventy-five (75%) of the shares of the capital stock of the
corporation issued or outstanding and entitled to vote shall be required for the
stockholders to amend or repeal, or to adopt any provision inconsistent with
Section 1.3, Section 1.10, Section 1.11, Section 1.12, Section 1.13, Article 2
or Article 6 of these By-Laws.
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