Exhibit 3.3
BY-LAWS OF
SHOPPERS FOOD WAREHOUSE CORP.
* These by-laws were adopted on July 30, 1997.
SFW HOLDING CORP.
BY-LAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
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for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as may be designated by
the Board of Directors, or by the Chairman of the Board, the President or the
Secretary in the absence of a designation by the Board of Directors, and stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting. An annual meeting of the stockholders,
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commencing with the year 1997, shall be held at such date and time as shall be
designated from time to time by the Board of Directors, at which meeting the
stockholders shall elect by a plurality vote the directors to succeed those
whose terms expire and shall transact such other business as may properly be
brought before the meeting.
Section 3. Special Meetings. Special meetings of the stockholders, for
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any purpose or purposes, unless otherwise prescribed by law or by Certificate of
Incorporation, may be called by the Board of Directors and shall be called by
the President or the Secretary at the request in writing of stockholders owning
a majority in interest of the entire capital
stock of the Corporation issued and outstanding and entitled to vote. Such
request shall be sent to the President and the Secretary and shall state the
purpose or purposes of the proposed meeting.
Section 4. Notice of Meetings. Written notice of every meeting of the
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stockholders, stating the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting, except as
otherwise provided herein or by law.
Section 5. Quorum. The holders of a majority of the stock issued and
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outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by law or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented 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 or represented.
Section 6. Voting. Except as otherwise provided by law or by the
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Certificate of Incorporation, each stockholder shall be entitled at every
meeting of the stockholders to one vote for each share of stock having voting
power standing in the name of such stockholder on the books of the Corporation
on the record
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date for the meeting and such votes may be cast either in person or by written
proxy. Every proxy must be duly executed and filed with the Secretary of the
Corporation. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date with the
Secretary of the Corporation. The vote upon any question brought before a
meeting of the stockholders may be by voice vote, unless the holders of a
majority of the outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at such meeting shall so determine. Every
vote taken by written ballot shall be counted by one or more inspectors of
election appointed by the Board of Directors. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock which has voting
power present in person or represented by proxy shall decide any question
properly brought before such meeting, unless the question is one upon which by
express provision of law, the Certificate of Incorporation or these by-laws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
ARTICLE II
DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be
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managed by or under the direction of its Board of Directors, which may exercise
all such powers of the
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Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation directed or required to be exercised or done by the
stockholders.
Section 2. Number and Term of Office. The Board of Directors shall
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consist of one or more members. The number of directors shall be fixed by
resolution of the Board of Directors or by the stockholders at the annual
meeting or a special meeting. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 3 of this Article,
and each director elected shall hold office until his successor is elected and
qualified, except as required by law. Any decrease in the authorized number of
directors shall not be effective until the expiration of the term of the
directors then in office, unless, at the time of such decrease, there shall be
vacancies on the Board which are being eliminated by such decrease.
Section 3. Vacancies and New Directorships. Vacancies and newly created
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directorships resulting from any increase in the authorized number of directors
which occur between annual meetings of the stockholders may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so elected shall hold office until
the next annual meeting of the stockholders and until their successors are
elected and qualified, except as required by law.
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Section 4. Regular Meetings. Regular meetings of the Board of Directors
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may be held without notice at such time and place as shall from time to time be
determined by the Board of Directors.
Section 5. Special Meetings. Special meetings of the Board of Directors
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may be called by the Chairman of the Board or the President on one day's written
notice to each director by whom such notice is not waived, given either
personally or by mail or telefax, and shall be called by the President or the
Secretary in like manner and on like notice on the written request of any two
directors.
Section 6. Quorum. At all meetings of the Board of Directors, a majority
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of the total number of directors then in office shall constitute a quorum for
the transaction of business, and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors. 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 to another place, time or date, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 7. Written Action. Any action required or permitted to be taken
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at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes or proceedings of the Board or Committee.
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Section 8. Participation in Meetings by Conference Telephone. Members of
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the Board of Directors, or any committee designated by the Board of Directors,
may participate in a meeting of the Board of Directors, or any 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 such
participation in a meeting shall constitute presence in person at the meeting.
Section 9. Committees. The Board of Directors may, by resolution passed
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by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation and each
to have such lawfully delegable powers and duties as the Board may confer. Each
such committee shall serve at the pleasure of the Board of Directors. 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.
Except as otherwise provided by law, any such committee, to the extent provided
in the resolution of the Board of Directors, 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. Any committee or committees so
designated by the Board shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. Unless otherwise
prescribed by the Board of Directors, a majority of the members of the
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committee shall constitute a quorum for the transaction of business, and the act
of a majority of the members present at a meeting at which there is a quorum
shall be the act of such committee. Each committee shall prescribe its own
rules for calling and holding meetings and its method of procedure, subject to
any rules prescribed by the Board of Directors, and shall keep a written record
of all actions taken by it.
Section 10. Compensation. The Board of Directors may establish such
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compensation for, and reimbursement of the expenses of, directors for attendance
at meetings of the Board of Directors or committees, or for other services by
directors to the Corporation, as the Board of Directors may determine.
Section 11. Rules. The Board of Directors may adopt such special rules
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and regulations for the conduct of their meetings and the management of the
affairs of the Corporation as they may deem proper, not inconsistent with law or
these by-laws.
ARTICLE III
NOTICES
Section 1. Generally. Whenever by law or under the provisions of the
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Certificate of Incorporation or these by-laws, notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given two
days after the time when the same shall
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be deposited in the United States mail. Notice to directors may also be given
by telefax or telephone and shall be deemed to be given when communicated.
Section 2. Waivers. Whenever any notice is required to be given by law or
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under the provisions of the Certificate of Incorporation or these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE IV
OFFICERS
Section 1. Generally. The officers of the Corporation shall be elected by
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the Board of Directors and shall consist of a President, a Secretary and a
Treasurer. The Board of Directors may also choose any or all of the following: a
Chairman of the Board of Directors, one or more Vice Presidents, a Controller, a
General Counsel, and one or more Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person.
Section 2. Compensation. The compensation of all officers and agents of
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the Corporation who are also directors of the
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Corporation shall be fixed by the Board of Directors. The Board of Directors
may delegate the power to fix the compensation of other officers and agents of
the Corporation to an officer of the Corporation.
Section 3. Succession. The officers of the Corporation shall hold office
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until their successors are elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the directors. Any vacancy occurring in any
office of the Corporation may be filled by the Board of Directors.
Section 4. Authority and Duties. Each of the officers of the Corporation
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shall have such authority and shall perform such duties as are stated in these
by-laws or as may be specified by the Board of Directors in a resolution which
is not inconsistent with these by-laws.
Section 5. Chairman. The Chairman shall preside at all meetings of the
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stockholders and of the Board of Directors and he shall have such other duties
and responsibilities as may be assigned to him by the Board of Directors. The
Chairman may delegate to any qualified person authority to chair any meeting of
the stockholders, either on a temporary or a permanent basis.
Section 6. President. The President shall be responsible for the active
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management and direction of the business and affairs of the Corporation. In
case of the inability or failure of the Chairman to perform the duties of that
office, the President shall perform the duties of the Chairman, unless otherwise
determined by the Board of Directors.
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Section 7. Execution of Documents and Action with Respect to Securities of
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Other Corporations. The President shall have and is hereby given, full power
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and authority, except as otherwise required by law or directed by the Board of
Directors, (a) to execute, on behalf of the Corporation, all duly authorized
contracts, agreements, deeds, conveyances or other obligations of the
Corporation, applications, consents, proxies and other powers of attorney, and
other documents and instruments, and (b) to vote and otherwise act on behalf of
the Corporation, in person or by proxy, at any meeting of stockholders (or with
respect to any action of such stockholders) of any other corporation in which
the Corporation may hold securities and otherwise to exercise any and all rights
and powers which the Corporation may possess by reason of its ownership of
securities of such other corporation. In addition, the President may delegate
to other officers, employees and agents of the Corporation the power and
authority to take any action which the President is authorized to take under
this Section 7, with such limitations as the President may specify; such
authority so delegated by the President shall not be re-delegated by the person
to whom such execution authority has been delegated.
Section 8. Vice President. Each Vice President, however titled, shall
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perform such duties and services and shall have such authority and
responsibilities as shall be assigned to or required from time to time by the
Board of Directors or the President.
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Section 9. Secretary and Assistant Secretaries. (a) The Secretary shall
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attend all meetings of the stockholders and all meetings of the Board of
Directors and record all proceedings of the meetings of the stockholders and of
the Board of Directors and shall perform like duties for the standing committees
when requested by the Board of Directors or the President. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and
meetings of the Board of Directors. The Secretary shall perform such duties as
may be prescribed by the Board of Directors or the President. The Secretary
shall have charge of the seal of the Corporation and authority to affix the seal
to any instrument. The Secretary or any Assistant Secretary may attest to the
corporate seal by handwritten or facsimile signature. The Secretary shall keep
and account for all books, documents, papers and records of the Corporation
except those for which some other officer or agent has been designated or is
otherwise properly accountable. The Secretary shall have authority to sign
stock certificates.
(b) Assistant Secretaries, in the order of their seniority, shall assist
the Secretary and, if the Secretary is unavailable or fails to act, perform the
duties and exercise the authorities of the Secretary.
Section 10. Treasurer and Assistant Treasurers. (a) The Treasurer shall
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have the custody of the funds and securities belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
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Treasurer with the prior approval of the Board of Directors or the President.
The Treasurer shall disburse the funds and pledge the credit of the Corporation
as may be directed by the Board of Directors and shall render to the Board of
Directors and the President, as and when required by them, or any of them, an
account of all transactions by the Treasurer.
(b) Assistant Treasurers, in the order of their seniority, shall assist the
Treasurer and, if the Treasurer is unable or fails to act, perform the duties
and exercise the powers of the Treasurer.
Section 11. Controller. The Controller shall be the chief accounting
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officer of the Corporation. The Controller shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation in
accordance with generally accepted accounting methods and procedures. The
Controller shall initiate periodic audits of the accounting records, methods and
systems of the Corporation. The Controller shall render to the Board of
Directors and the President, as and when required by them, or any of them, a
statement of the financial condition of the Corporation.
Section 12. General Counsel. The General Counsel shall be the chief legal
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officer of the Corporation. The General Counsel shall provide legal counsel and
advice to the Board of Directors and to the officers with respect to compliance
with applicable laws and regulations. The General Counsel shall also provide or
obtain legal representation of the Corporation in proceedings by or against the
Corporation. The General Counsel shall render to
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the Board of Directors and the President, as and when required by them, or any
of them, a report on the status of claims against, and pending litigation of,
the Corporation.
ARTICLE V
STOCK
Section 1. Certificates. Certificates representing shares of stock of the
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Corporation shall be in such form as shall be determined by the Board of
Directors, subject to applicable legal requirements. Such certificates shall be
numbered and their issuance recorded in the books of the Corporation, and such
certificate shall exhibit the holder's name and the number of shares and shall
be signed by, or in the name of the Corporation by (i) the Chairman, the
President or any Vice President and (ii) the Secretary or an Assistant Secretary
or the Treasurer or an Assistant Treasurer of the Corporation. Any or all of the
signatures and the seal of the Corporation, if any, upon such certificates may
be facsimiles, engraved or printed.
Section 2. Transfer. Upon surrender to the Corporation or the transfer
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agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue, or to cause its
transfer agent to issue, a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
Section 3. Lost, Stolen or Destroyed Certificates. The Secretary may
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direct a new certificate or certificates to be
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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, satisfactory to the Secretary, by the person claiming
the certificate of stock to be lost, stolen or destroyed. As a condition
precedent to the issuance of a new certificate or certificates the Secretary may
require the owner of such lost, stolen or destroyed certificate or certificates
to give the Corporation a bond in such sum and with such surety or sureties as
the Secretary may direct as indemnity against any claims that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed or the issuance of the new certificate.
Section 4. Record Date. (a) In order that the Corporation may determine
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the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record is fixed by the Board of Directors, 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 next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to
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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.
(b) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is 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
a Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the
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close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed
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from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may adopt a corporate
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seal and use the same by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 3. Reliance upon Books, Reports and Records. Each director, each
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member of a committee designated by the Board of Directors, and each officer of
the Corporation shall, in the
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performance of his or her duties, be fully protected in relying in good faith
upon the records of the Corporation and upon such information, opinions, reports
or statements presented to the Corporation by any of the Corporation's officers
or employees, or committees of the Board of Directors, or by any other person as
to matters the director, committee member or officer believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
Section 4. Time Periods. In applying any provision of these by-laws which
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requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded and the day of the event shall be included.
Section 5. Dividends. The Board of Directors may from time to time
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declare and the Corporation may pay dividends upon its outstanding shares of
capital stock, in the manner and upon the terms and conditions provided by law
and the Certificate of Incorporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendments. These by-laws may be altered, amended or repealed,
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or new by-laws may be adopted, by the stockholders or by the Board of Directors.
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