EXHIBIT 3.2
BY-LAWS OF
CABOT-NOBLE, INC.
A Delaware Corporation
ARTICLE I
Offices
Section 1.1. The registered office of Cabot-Noble, Inc. (the
"Corporation") within the State of Delaware shall be located at 1209 Orange
Street, City of Wilmington, County of New Castle, Delaware 19801. The name of
the Corporation's registered agent at such address is The Corporation Trust
Company.
Section 1.2. Other Offices. The Corporation may also have offices and
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places of business at such other places within or 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
Meetings of Stockholders
Section 2.1. Place. All meetings of stockholders of the Corporation
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shall be held at such place within or without the State of Delaware as shall be
stated in the notice of the meeting.
Section 2.2. Annual Meeting. Annual meetings of stockholders, commencing
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with the year 1997, shall be held on a date specified by the Board of Directors,
at which the stockholders shall elect directors and transact such other business
as may properly be brought before the meeting.
Section 2.3. Special Meetings. Special meetings of the stockholders of
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the Corporation, for any purpose or purposes, unless otherwise prescribed by
statute or by the Corporation's Certificate of Incorporation (the "Certificate
of Incorporation"), may be called only by the Chairman of the Board, the
President, or the Board of Directors.
Section 2.4. Notice of Meetings. Written notice of each meeting of
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stockholders of the Corporation stating the place, date and hour thereof, and in
the case of a special meeting of stockholders, specifying the purpose or
purposes thereof, and the person or persons by whom or at whose direction such
meeting has been called, shall be given to each stockholder entitled to vote
thereat, at his address as it appears on the records of the Corporation, not
less than ten (10) nor more than sixty (60) days prior to the meeting.
Section 2.5. List of Stockholders. At least 10 days (but not more than
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90 days) before
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any meeting of stockholders, the officer or transfer agent in charge of the
stock transfer books of the Corporation shall prepare and make a complete
alphabetical list of the stockholders entitled to vote at such meeting, which
list shows the address of each stockholder and the number of shares registered
in the name of each stockholder. The list so prepared shall be maintained at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held, and shall be open to inspection by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours during a period of no less than 10 days prior to the meeting. The list
also shall be produced and kept open at the meeting (during the entire duration
thereof) and, except as otherwise provided by law, may be inspected by any
stockholder or proxy of a stockholder who is present in person at such meeting.
Section 2.6. Presiding Officers. Meetings of stockholders shall be
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presided over by the Chairman of the Board, if any, or, if the Chairman is not
present, by a Vice Chairman, or if a Vice Chairman is not present, by the Chief
Executive Officer, or if the Chief Executive Officer is not present, by the
President, or, if the President is not present, by a Vice President, or, if a
Vice President is not present, by such person who is chosen by the Board of
Directors, or, if none, by a chairperson to be chosen at the meeting by
stockholders present in person or by proxy who own a majority of the shares of
the Corporation entitled to vote and represented at such meeting. The Secretary
of meetings shall be Secretary of the Corporation, or, if the Secretary is not
present, an Assistant Secretary, or, if any Assistant Secretary is not present,
such person as may be chosen by the Board of Directors, or, if none, by such
person who is chosen by the chairperson at the meeting.
Section 2.7. Quorum. At each meeting of the stockholders of the
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Corporation, the holders of a majority of shares of the Corporation entitled to
vote thereat, present in person or by proxy, shall constitute a quorum, except
as may be otherwise provided by the Certificate of Incorporation of these
By-Laws. If, however, a quorum shall not be present on the date specified in
the original notice of meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present. At any such adjourned meeting, at which a quorum shall be
present, the stockholders, present in person or by proxy, may transact any
business which might have been transacted had a quorum been present on the date
specified in the original notice of meeting.
Section 2.8. Voting. At any meeting of the stockholders of the
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Corporation, each stockholder having the right to vote shall be entitled to vote
in person or by proxy appointed by an instrument in writing subscribed by such
stockholder. Except as may be otherwise provided by the Certificate of
Incorporation, each holder of record of Common Stock shall be entitled to one
vote for every share of such stock standing in his name on the books of the
Corporation. All elections of directors by stockholders, and, except as
otherwise provided by statute, the Certificate of Incorporation or these
By-Laws, all other matters submitted to a vote of stockholders, shall be decided
by the vote of the holders of a majority of the stock entitled to vote
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thereon and represented in person or by proxy at such meeting.
Section 2.9. Proxies. Each proxy shall be executed in writing by the
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stockholder or by his duly authorized attorney. No proxy shall be valid after
the expiration of eleven (11) months from the date of its execution unless it
shall have specified therein a longer duration. Each proxy shall be revocable at
the pleasure of the person executing it or of his personal representative,
unless specifically irrevocable by its terms and only in those cases where an
irrevocable proxy is permissible under applicable law.
Section 2.10. Consents. Any action which, pursuant to this Certificate
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of Incorporation, the Corporation's By-Laws, the GCL or otherwise, is required
to be taken at an annual or special meeting of the Corporation's stockholders
may not be taken by written consent of the stockholders in lieu of a meeting.
Section 2.11. Stockholder Proposals. At any annual or special meeting
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of stockholders, only such business shall be conducted as shall have been
properly brought before a meeting. Business must be (a) specified in the notice
of meeting (or any supplement thereto), (b) brought before the meeting by or at
the direction of the Board of Directors, or (c) properly brought before an
annual meeting by a stockholder, and if and only if the notice of a special
meeting provides for business to be brought before the special meeting by
stockholders, properly brought before the special meeting by stockholder. For
business to be properly brought before a 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 60 days prior to the meeting; provided, however, that if less than 70
days' notice or prior 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 day on which
such notice of the date of the meeting was mailed or such public notice of the
date of the meeting was mailed or such public disclosure was made. Furthermore,
stockholders are not permitted to nominate individuals to serve as directors
unless notice of such nomination is given to the Corporation in accordance with
Section 3.4 of these By-Laws. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the meeting (a)
a brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the 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 the Corporation which are
beneficially owned by the stockholder 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 meeting of stockholders except
in accordance with the procedures set forth in this Section 2.11. The chairman
of the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance with
the provisions of this Section, and if he should so determine, he shall so
declare that any such business not properly brought before the meeting shall not
be transacted. Notwithstanding anything in the By-Laws to the contrary, the
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Corporation shall be under no obligation to submit for action any stockholder
proposal at any meeting of stockholders which proposal the Corporation would
otherwise be permitted to omit in accordance with Rule 14a-8 under the Exchange
Act.
ARTICLE III
Directors
Section 3.1. Board of Directors. The property and business of the
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Corporation shall be managed by its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are
not, by statute or by the Certificate of Incorporation or by these By-Laws,
directed or required to be exercised or done by the stockholders. Directors
need not be stockholders.
Section 3.2. Number. The number of directors of the Corporation
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(exclusive of directors that may be elected by the holders of any one or more
series of the Preferred Stock voting separately as a class or classes) that
shall constitute the entire Board of Directors (the "Entire Board of Directors")
shall be not less than three (3) or more than twelve (12), such number to be
determined from time to time by resolution adopted by the affirmative vote of a
majority of the Entire Board of Directors.
Section 3.3. Election. Directors shall be elected at the annual meeting
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of stockholders, or as otherwise provided in the Certificate of Incorporation or
in these By-Laws.
Section 3.4. Nomination of Director Candidates. Subject to the rights of
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holders of any class or series of Preferred Shares then outstanding, nominations
for the election of directors may be made by (a) the Board or a proxy committee
appointed by the Board or (b) any stockholder entitled to vote in the election
of directors generally. However, any stockholder entitled to vote in the
election of directors generally may nominate one or more persons for election as
directors at a meeting only if timely notice of such stockholder's intent to
make such nomination or nominations has been given 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
fewer than 60 days prior to the meeting; provided, however, that if less than
70 days' notice or prior 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 day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. Each such notice shall set forth (a) the name and address
of the stockholder who intends to make the nomination and of the person or
persons to be nominated, (b) a representation that the stockholder is a holder
of record of shares of the Corporation entitled to vote for the election of
directors on the date of such notice and intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice, (c) 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, (d)
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such other information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of Directors and (c) the
consent of each nominee to serve as a director of the Corporation if so elected.
If a person is validly designated as a nominee in accordance with this
Section 3.4 and shall thereafter become unable or unwilling to stand for
election to the Board of Directors, the Board of Directors or the stockholder
who proposed such nominee, as the case may be, may designate a substitute
nominee upon delivery, not fewer than 20 days prior to the date of the meeting
for the election of such nominee, of a written notice to the Secretary setting
forth such information regarding such substitute nominee as would have been
required to be delivered to the Secretary pursuant to this Section 3.4 had such
substitute nominee been initially proposed as a nominee. Such notice shall
include a signed consent to serve as a director of the Corporation, if elected,
of each such substitute nominee.
If the chairman of the meeting for the election of directors determines
that a nomination of any candidate for election as a director at such meeting
was not made in accordance with the applicable provisions of this Section 3.4,
such nomination shall be void.
ARTICLE IV
Meeting of the Board
Section 4.1. Time and Place. Meetings of the Board of Directors may
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be held either within or without the State of Delaware. Regular meetings of the
Board of Directors may be held without notice at such time and place as shall
from time to time be determined by the Board. Each special meeting of the Board
of Directors shall be held at such time and place as shall be stated in the
notice of the meeting.
Section 4.2. First Meeting. The first meeting of each newly elected
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Board of Directors shall be held within ten (10) days following each annual
meeting of the stockholders, at such time and place either within or without the
State of Delaware, as shall be announced at the annual meeting of stockholders,
and no notice of such meeting shall be necessary to the newly elected directors
in order legally to constitute the meeting, provided a quorum shall be present.
Section 4.3. Special Meetings. Special meetings of the Board of
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Directors may be called by the Chairman of the Board, the Chief Executive
Officer or the President, or at the written request of any two (2) directors.
Written notice of each special meeting of directors, stating the time and place
thereof, shall be served upon each director, personally (including by overnight
courier), by mail or by facsimile, at least two (2) days before such meeting.
Section 4.4. Quorum and Voting. At all meetings of the Board of
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Directors a majority of the Entire Board of Directors shall be necessary and
sufficient to constitute a quorum
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for the transaction of business and the act of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these By-Laws. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without further
notice other than announcement at the meeting, until a quorum shall be present.
Section 4.5. Telephone Conference Meetings. Meetings of the directors
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may be held by means of a telephone or similar communications equipment, by
which all persons participating in the meeting can hear each other at the same
time and participation by such means shall constitute presence in person at a
meeting.
Section 4.6. Consents. Any action allowed or required to be taken at a
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meeting of the Board of Directors or by any committee thereof, may be taken
without meeting if a consent in writing, setting forth the action so taken, is
signed before or after such action by all of the directors, or all or the
members of the committee, as the case may be.
ARTICLE V
Committees of Directors
Section 5.1. Designation; Powers. The Board of Directors may, by
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resolution or resolutions adopted by a majority of the Entire Board of
Directors, designate from among its members an Executive Committee, Audit
Committee, Compensation Committee or other Committees, each consisting of two
(2) or more directors, and each of which, to the extent provided in any such
resolution, shall have all the authority of the Board, except as provided by
law, the Certificate of Incorporation or these By-Laws. The Board of Directors
may designate one or more directors as alternate members of any such Committee
who may replace any absent member or members at any meeting of such Committee.
Section 5.2. Tenure and Reports. Each such Committee shall serve at
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the pleasure of the Board of Directors. It shall keep minutes of its meetings
and report the same to the Board.
ARTICLE VI
Notices
Section 6.1. Delivery of Notices. Notices to directors and
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stockholders shall be in writing and may be delivered personally (which shall
include delivery by overnight courier service) or by mail. Notice by mail shall
be deemed to be given at the time when the same shall be deposited in the post
office or a letter box, in a postpaid, scaled wrapper, and shall be addressed
to directors or stockholders at their addresses appearing on the books of the
Corporation. Notice to directors may also be given by telecopy.
Section 6.2. Waiver of Notice. Whenever any notice is required to be
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given by law,
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the Certificate of Incorporation or these By-Laws, a waiver thereof in writing,
signed by the persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Any stockholder attending a
meeting of stockholders in person or by proxy, or any director attending a
meeting of the Board of Director or any committee thereof, without protesting
such lack of notice prior to the meeting or at its commencement, shall be deemed
conclusively to have waived notice of such meeting. Any director signing a
unanimous written consent pursuant to Section 4.6 hereof shall be deemed
conclusively to have waived notice of the action taken by such consent.
ARTICLE VII
Officers
Section 7.1. Officers. The officers of the Corporation shall be a
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Chairman of the Board, one or more Vice Chairmen, a Chief Executive Officer, a
President, a Chief Operating Officer, one or more Vice Presidents, a Chief
Financial Officer and Treasurer, a Controller and a Secretary, each of whom
shall be elected annually by the directors at their annual meeting, and shall
hold office at the pleasure of the Board of Directors. The same individual may
simultaneously hold more than one office in the Corporation.
Section 7.2. Additional Officers. The Board of Directors may appoint
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such other officers and agents, including, without limitation, Assistant Vice
Presidents, Assistant Secretaries, Assistant Treasurers and Assistant
Controllers with such powers and duties as it shall deem necessary or
appropriate. All such officers or agents shall hold office at the pleasure of
the Board of Directors.
Section 7.3. Authorities and Duties. All officers, as between
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themselves and the Corporation, shall have such authority and perform such
duties in the management of the Corporation as may be provided in these By-Laws,
or, to the extent not so provided, as may be prescribed by the Board of
Directors.
Section 7.4. Salaries. The salaries or other compensation of all
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officers of the Corporation shall be fixed by the Board of Directors. The
salaries or other compensation of all other employees and agents of the
Corporation may be fixed by the Board of Directors or to one or more officers or
employees authority to employ and to fix the salaries or other compensation of
any such employees or agents.
Section 7.5. The Chairman of the Board. The Chairman of the Board
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shall preside at all meetings of the stockholders and all meetings of the
Board of Directors and shall have such powers and perform such duties as may
from time to time be assigned to him by the Board of Directors.
Section 7.6. The Vice Chairman. In the absence of the Chairman of the
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Board, the
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Vice Chairman (and if there is more than one Vice Chairman, the Vice Chairmen in
order of their seniority or as otherwise determined by the Board) shall preside
at all meetings of the stockholders and all meetings of the Board of Directors
and shall have such powers and perform such duties as may from time to time be
assigned to him by the Board of Directors.
SECTION 7.7. The Chief Executive Officer. In the absence of the
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Chairman of the Board and any Vice Chairman, the Chief Executive Officer shall
preside at all meetings of the stockholders and all meetings of the Board of
Directors. The Chief Executive Officer shall be the principal executive officer
of the Corporation and shall have such powers and perform such duties as may
from time to time be assigned to him by the Board of Directors.
SECTION 7.8. The President. In the absence of the Chairman of the
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Board, any Vice Chairman and the Chief Executive Officer, the President shall
preside at all meetings of the stockholders and all meetings of the Board of
Directors and shall have such powers and perform such duties as may from time to
time be assigned to him by the Board of Directors.
SECTION 7.9. The Chief Operating Officer. The Chief Operating Officer
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shall be responsible for management of the operations of the Corporation in
accordance with the directions of the Board, the Chief Executive Officer and the
President. The Chief Operating Officer shall report to the President.
SECTION 7.10. The Vice Presidents. The Vice Presidents in the order of
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their seniority, as indicated by their titles (Executive, Senior, etc.) or as
otherwise determined by the Board of Directors, shall, in the absence of the
Chairman of the Board, any Vice Chairman, the Chief Executive Officer and the
President, perform the duties and exercise the powers of the Chairman of the
Board, the Vice Chairman, the Chief Executive Officer and the President, shall
perform such other duties as the Board of Directors shall prescribe and shall
generally assist the Chairman of the Board, the Vice Chairmen, the Chief
Executive Officer and the President.
SECTION 7.11. The Secretary. The Secretary shall attend meetings of the
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Board of Directors and stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose and shall perform like duties
for the standing committees of the Board of Directors when required. He shall
give, or cause to be given, notice of meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board, the Vice
Chairmen, the Chief Executive Officer and the President, under whose collective
supervision he shall be. He shall keep in safe custody the seal of the
Corporation and, when authorized by the Board of Directors, affix the same to
any instrument requiring it and, when so affixed, it shall be attested by his
signature or by the signature of the Treasurer or an Assistant Secretary or
Treasurer. He shall keep in safe custody the certificate books and stock books
and such other books and papers as the Board of Directors may direct and shall
perform all other duties incident to the office of Secretary.
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Section 7.12. Assistant Secretaries. The Assistant Secretaries shall, in
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the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as the Board of
Directors shall prescribe.
Section 7.13. The Chief Financial Officer and Treasurer. The Chief
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Financial Officer and Treasurer shall have the care and custody of the
corporate funds, and other valuable effects, including securities, and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all monies and other valuable effects in
the name and to the credit of the Corporation and shall deposit all monies 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. The Chief Financial
Officer and Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the Chairman of the Board, the Vice Chairmen, the Chief Executive
Officer, the President and the Board of Directors, at the regular meetings of
the Board, or whenever they may require it, an account of all his transactions
as Chief Financial Officer and Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Chief Financial Officer
and Treasurer shall give the Corporation a bond for such term, in such sum and
with such surety or sureties as shall be satisfactory to the Board for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 7.14. Assistant Treasurers. The Assistant Treasurer shall, in
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the absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as the Board of
Directors may prescribe.
Section 7.15. Execution of Instruments. Each of the Chairman of the
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Board, the Vice Chairman, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer and the Executive Vice Presidents
shall have the power to sign on behalf of the Corporation bonds, notes, deeds,
mortgages, guarantees and any and all contracts, agreements and instruments of a
contractual nature pertaining to matters which arise in the normal conduct and
ordinary course of the business of the Corporation, except in cases in which the
signing and execution thereof shall have been expressly delegated by the Board
of Directors of the Corporation to some other officer or agent of the
Corporation.
ARTICLE VIII
Certificates of Stock
Section 8.1. Form. The certificates of stock of the Corporation shall
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be in such form as shall be determined by the Board of Directors and shall be
numbered consecutively and entered in the books of the Corporation as they are
issued. Each certificate shall exhibit the registered holder's name and the
number and class of shares, and shall be signed by the Chairman of the Board,
any Vice Chairman, the Chief Executive Officer, the President, any
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Executive Vice President, Senior Vice President, or Vice President and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
and shall bear the seal of the Corporation or an engraved or printed facsimile
thereof. Where any such certificate is signed by a transfer agent or by a
registrar, the signature of the Chairman of the Board, any Vice Chairman, the
Chief Executive Officer, the President, Executive Vice President, Senior Vice
President, Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary may be a facsimile. In case any officer, transfer agent or
registrar, who has signed, or whose facsimile signature or signatures have been
used on, any such certificate or certificates, shall cease to be such officer,
transfer agent or registrar of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates have been
delivered by the Corporation, such certificate or certificates may nevertheless
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer, transfer agent or registrar of
the Corporation.
Section 8.2. Registered Stockholders. The Corporation shall be entitled
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to (1) recognize the exclusive right of a person registered on its books as the
owner of shares as entitled to receive dividends and notices of meetings of
stockholders and to vote as such owner; and (2) hold liable for calls and
assessments a person registered on its books as the owner of shares; and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise required by law.
Section 8.3. Lost Certificates. The Board of Directors may direct a new
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certificate or certificates 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, and upon such
other terms as the Board of Directors may prescribe; and the Board of Directors
may, in its discretion and as a condition precedent to the issuance of a new
certificate of certificates, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum and with such surety or sureties 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.
Section 8.4. Record Date.
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(a) For the purpose of determining the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to or dissent from any proposal without a meeting, or for the
purpose of determining stockholders entitled to receive payment of any dividend
or the allotment of any rights, or for the purpose of payment of any dividend or
the allotment of any rights, or for the purpose of any other action, the Board
may fix, in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days prior to any
other action.
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(b) If no record date is fixed:
(1) The record date for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if no notice is given, the day on which the meeting is held.
(2) The record date for determining stockholders for any
purpose other than that specified in subparagraph (1) shall be at the close of
business on the day on which the resolution of the Board relating thereto is
adopted.
(c) When a determination of stockholders of record entitled to
notice of or to vote at any meeting of stockholders has been made as provided in
this section, such determination shall apply to any adjournment thereof, unless
the Board fixes a new record date under this section for the adjourned meeting.
Section 8.5. Fractional Shares. The Corporation may (1) issue
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fractions of a share, (2) arrange for the disposition of fractional interests by
those entitled thereto, (3) pay in cash the fair value of fractions of a share
as of the time when those entitled to receive such fractions are determined, or
(4) issue scrip in registered or bearer form which shall entitle the holder to
receive a certificate for a full share upon the surrender of such scrip
aggregating a full share. A certificate for a fractional share shall, but scrip
shall not, unless otherwise provided therein, entitle the holder to exercise
voting rights, to receive dividends thereon, and to participate in any of the
assets of the Corporation in the event of liquidation. The Board of Directors
may cause scrip to be issued subject to the condition that it shall become void
if not exchanged for certificates representing full shares before a specified
date, or subject to the condition that the shares for which scrip is
exchangeable for may be sold by the Corporation and the proceeds thereof
distributed to the holders of scrip, or subject to any other conditions which
the Board of Directors may deem advisable.
ARTICLE IX
General Provisions
Section 9.1. Dividends. Subject to applicable law and the Certificate
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of Incorporation, the Board of Directors shall have full power to determine
whether any, and if any, what part of any, funds legally available for the
payment of dividends shall be declared in dividends and paid to stockholders;
the division of the whole or any part of such funds of the Corporation shall
rest wholly within the lawful discretion of the Board of Directors, and it
shall not be required at any time, against such discretion, to divide or pay any
part of such funds among or to the stockholders as dividends or otherwise; and
the Board of Directors may fix a sum which may be set aside or reserved over and
above the paid in capital of the Corporation as working capital for the
Corporation or as a reserve for any proper purpose, and from time to time may
increase, diminish, and vary the same in its absolute judgment and discretion.
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Section 9.2. Fiscal Year. The fiscal year of the Corporation shall be
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determined by the Board of Directors.
Section 9.3. Seal. The corporate seal shall have inscribed thereon the
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name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to
be impressed, affixed or in any manner reproduced.
Section 9.4. Instruments for the Payment of Money. All checks or other
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instruments for the payment of money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
ARTICLE X
Amendments
Section 10.1. Power to Amend. The Board of Directors is authorized to
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adopt, repeal, alter, amend or rescind these By-Laws by the affirmative vote of
at least a majority of the Entire Board of Directors. The stockholders may
adopt, repeal, alter, amend or rescind the By-Laws of the Corporation by the
vote of at least 66 2/3% of the votes held by holders of shares of Voting Stock
(as defined in the Certificate of Incorporation).
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