BY-LAWS
OF
GREAT AMERICAN COOKIE COMPANY, INC.
(A Delaware corporation)
Effective 9:00 a.m. est - December, 1993
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ARTICLE I
Meetings of Stockholders
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SECTION 1. Annual Meeting. The annual meeting of the stockholders of
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GREAT AMERICAN COOKIE COMPANY, INC. (hereinafter, the "Corporation") for the
election of directors and for the transaction of such other proper business
shall be held on such date and at such time as may be fixed by the Board of
Directors, at the office of the Corporation or at such other place, and at such
hour as shall be designated by the Board of Directors, or, if no such time be
fixed, then at 10:00 in the forenoon.
SECTION 2. Special Meetings. Special meetings of the stockholders, unless
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otherwise prescribed by statute, may be called at any time by the Board of
Directors or by the holder or holders of more than 10% of the outstanding shares
of Common Stock entitled to vote at such meeting.
SECTION 3. Notice of Meetings. Written notice of each meeting of the
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stockholders, which shall state the place, date and hour of the meeting and the
purpose or purposes for which it is called, shall be given not less than ten nor
more than sixty days before the date of such meeting to each stockholder
entitled to vote at such meeting, and, if mailed, shall be deposited in the
United States mail, postage prepaid, directed to the stockholder at the
stockholder's address as it appears on the records of the Corporation. Any such
notice for any meeting other than the annual meeting shall indicate that it is
being issued at the direction of the Board or other-wise, as the case may be.
Whenever notice is required to be given, a written waiver thereof signed by the
person entitled thereto, whether before or after the time stated therein, shall
be deemed equivalent to 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. When a meeting is adjourned to another time or place, notice need not
be given if the time and place thereof are announced at the meeting at which the
adjournment is taken. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
SECTION 4. Quorum. At any meeting of the stockholders the holders of the
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majority of the shares, issued and outstanding and entitled to vote, shall be
present in person or represented by proxy in order to constitute a quorum for
the transaction of any business. In the absence of a quorum, the holders of a
majority of the shares present in person or represented by proxy and entitled to
vote may adjourn the meeting from time to time. At any such adjourned meeting at
which a quorum may be present, the Corporation may transact any business which
might have been transacted at the original meeting.
SECTION 5. Organization. At each meeting of the stockholders, the Chairman
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of the Board, or in his absence or inability to act, the Vice Chairman, if any,
or, in his absence or inability to act, the President or, in his absence or
inability to act, any Vice President or, in his absence of inability to act, any
person chosen by the majority of those stockholders present in person or
represented by proxy shall act as chairman of the meeting. The Secretary or, in
his or her absence or inability to act, any person appointed by the chairman of
the meeting shall act as secretary of the meeting and keep the minutes thereof.
SECTION 6. Order of Business. The order of business at all meetings of the
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stockholders shall be as determined by the chairman of the meeting.
SECTION 7. Voting. Unless otherwise provided in the Certificate of
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Incorporation, and subject to statute, each stockholder shall be entitled to one
vote for each share of capital stock held by such stockholder:
(1) on the date fixed pursuant to the provisions of Section 5 of
Article V of these By-Laws as the record date for the determination of the
stockholders to be entitled to notice of or to vote at such meeting; or
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(2) if no record date is fixed, then at the close of business on the
day next preceding the day on which notice is given. Each stockholder
entitled to vote at any meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time
designated in the order of business for so delivering such proxies. Except
as otherwise required by statute or by the Certificate of Incorporation, a
majority of the votes cast at a meeting of the stockholders shall be
necessary to authorize any corporate action to be taken by vote of the
stockholders. Unless required by statute, or determined by the chairman of
the meeting to be advisable, the vote on any question other than the
election of directors need not be by ballot. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by his proxy if there
be such proxy, and shall state the number of shares voted.
SECTION 8. List of Stockholders. A list of the stockholders entitled to
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vote at any meeting shall be produced and kept and made available for at least
days prior to and at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder.
SECTION 9. Inspectors. The Board may, in advance of any meeting of
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stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting shall appoint
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting, the existence of
a quorum, the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the chairman
of the meeting or any stockholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter determined by them
and shall execute a certificate of any fact found by them. No director or
candidate for the office of
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director shall act as an inspector of an election of directors. Inspectors need
not be stockholders.
ARTICLE II
Board of Directors
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SECTION 10. General Powers. The business and affairs of the Corporation
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shall be managed by or under the direction of a Board of Directors. The Board
may exercise all such authority and powers of the Corporation and do all such
lawful acts and things as are not by statute or the Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
SECTION 11. Number, Qualifications, Election and Term of Office. The Board
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of Directors shall consist of three persons so long as there is three or less
holders of the Corporation's common stock, thereafter at least four and no more
than five Directors beginning the day after the stock of the Corporation has
been acquired by Cookies USA, Inc. Each director shall hold office until the
annual meeting of stockholders of the Corporation next succeeding his election
or until his successor is duly elected and qualified. Directors need not be
stockholders. One of the directors may be designated a Senior Director.
SECTION 12. Place of Meeting. The Board of Directors shall hold its
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meetings at such place, within or without the State of Delaware, as it may from
time to time determine or as shall be specified in the notice of any such
meeting.
SECTION 13. Annual Meeting. The Board shall meet for the purpose of
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organization, the election of officers and the transaction of other business as
soon as practicable after each annual meeting of the stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place, within or without the State of Delaware, which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
SECTION 14. Regular Meetings. Regular meetings of the Board shall be held
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at such time as the Board may fix. If any day fixed for a regular meeting shall
be a legal holiday at the place where the meeting is to be held, then the
meeting which would otherwise be held on that day shall be held at the same hour
on the next
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succeeding business day. Notice of regular meetings of the Board need not be
given except as otherwise required by statute or these By-Laws.
SECTION 15. Special Meetings. Special meetings of the Board may be called
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by the Chairman of the Board, the President or by any two directors.
SECTION 16. Notice of Meetings. Notice of each special meeting of the Board
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(and of each regular meeting for which notice shall be required) shall be given
by the Secretary as hereinafter provided in this Section 7, in which notice
shall be stated the time and place of the meeting. Except as otherwise required
by these By-laws, such notice need not state the purposes of such meeting.
Notice of each such meeting shall be mailed by first class mail, postage
prepaid, or by overnight delivery service, to each director, addressed to him at
his residence or usual place of business, at least two (2) days before the day
on which such meeting is to be held, or shall be sent addressed to him at such
place by telegraph, telex, cable or wireless, or be delivered to him personally
or by facsimile, at least 24 hours before the time at which such meeting is to
be held. A written waiver of notice, signed by the director entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Notice of any such meeting need not be given to any director who shall,
either before or after the meeting, submit a signed waiver of notice or who
shall attend such meeting without protesting, prior to or at its commencement,
the lack of notice to him.
SECTION 17. Quorum and Manner of Acting. Except as hereinafter provided, a
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majority of the entire Board shall be present in person or by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time at any
meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting. In the absence of a quorum at any meeting of the
Board, a majority of the directors present thereat may adjourn such meeting to
another time and place. Notice of the time and place of any such adjourned
meeting shall be given to the directors who were not present at the time of the
adjournment and, unless such time and place were announced at the meeting at
which the adjournment was taken, to the other directors. At any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally called. The directors shall
act only as a Board and the individual directors shall have no power as such.
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Except as otherwise required by statute, the Certificate of Incorporation,
the By-Laws or any Subscription Agreement in writing to which the Corporation is
a party, 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.
SECTION 18. Action Without a Meeting. Any action required or permitted to
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be taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board consent thereto in writing, and the writing or
writings are filed with the minutes of the Board.
SECTION 19. Telephonic Participation. Members of the Board of Directors may
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participate in a meeting of the Board by means of a conference telephone or
similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation in such a meeting
shall constitute presence in person at such meeting.
SECTION 20. Organization. At each meeting of the Board, the Chairman of the
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Board or, in his absence or inability to act, the President or, in his absence
or inability to act, the Senior Director or another director chosen by a
majority of the directors present shall act as chairman of the meeting and
preside thereat. The Secretary or, in his or her absence or inability to act,
any person appointed by the chairman shall act as secretary of the meeting and
keep the minutes thereof.
SECTION 21. Resignations. Any director may resign at any time upon written
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notice to the Corporation. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 22. Vacancies. Vacancies and newly created directorships resulting
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from any increase in the authorized number of directors to the extent permitted
herein may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. If there are no directors
in office, then a special meeting of stockholders for the election of directors
may be called and held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding
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having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office, in the manner provided by
statute. When one or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office until the next election
of directors and until their successors shall be elected and qualified.
SECTION 23. Removal of Directors. Except as otherwise provided in the
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Certificate of Incorporation or in these By-Laws, and subject to the
Subscription Agreements, any director may be removed, either with or without
cause, at any time, by the affirmative vote of the holders of record of a
majority of the issued and outstanding stock entitled to vote for the election
of directors of the Corporation given at a special meeting of the stockholders
called and held for the purpose; and the vacancy in the Board caused by such
removal may be filled by such stockholders at such meeting, or, if the
stockholders shall fail to fill such vacancy, as in these By-Laws provided.
SECTION 24. Compensation. The Board of Directors shall have authority to
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fix the compensation, including fees and reimbursement of expenses, of directors
for services to the corporation in any capacity.
ARTICLE III
Executive and Other Committees
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SECTION 25. Executive and Other Committees. The Board may, by resolution
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passed by a majority of the whole Board, designate one or more committees, each
committee to consist of two or more of the directors of the 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. Any such committee, to the extent provided in the resolution shall
have and may exercise the powers of the Board 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; provided, however, that in the
absence or disqualification of any member of such committee or committees, the
member or
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members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such absent or disqualified
member. Each committee shall keep written minutes of its proceedings and shall
report such minutes to the Board when required. All such proceedings shall be
subject to revision or alteration by the Board; provided, however, that third
parties shall not be prejudiced by such revision or alteration.
SECTION 26. General. A majority of any committee may determine its action
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and fix the time and place of its meetings, unless the Board shall otherwise
provide. Notice of such meeting shall be given to each member of the committee
in the manner provided for in Article II, Section 7. The Board shall have any
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such committee. Nothing herein shall be deemed to prevent the Board
from appointing one or more committees consisting in whole or in part of persons
who are not directors of the Corporation; provided, however, that no such
committee shall have or may exercise any authority of the Board.
SECTION 27. Action Without a Meeting. Any action required or permitted to
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be taken by any committee at a meeting may be taken without a meeting if all of
the members of the committee consent in writing to the adoption of the
resolutions authorizing such action. The resolutions and written consents
thereto shall be filed with the minutes of the committee.
SECTION 28. Telephonic Participation. One or more members of a committee
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may participate in a meeting by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
ARTICLE IV
Officers
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SECTION 29. Number and Qualifications. The officers of the Corporation
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shall include the Chairman of the Board, the Vice Chairman of the Board, the
President, one or more Vice Presidents (including Executive Vice Presidents and
Senior Vice Presidents), the Treasurer, the Secretary and the Control-
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ler. Any number of offices may be held by the same person. Such officers shall
be elected from time to time by the Board. Each officer shall hold his office
until his successor is elected and qualified or until his earlier resignation or
removal. The Board may from time to time elect, or delegate to the Chairman of
the Board or the President the power to appoint such other officers (including
one or more Assistant Treasurers and one or more Assistant Secretaries) and such
agents as may be necessary or desirable for the business of the Corporation.
Such other officers and agents shall have such duties and shall hold their
offices for such terms as may be prescribed by the Board or by the appointing
authority.
SECTION 30. Resignations. Any officer may resign at any time upon written
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notice to the Corporation. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 31. Removal. Any officer or agent of the corporation may be
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removed, either with or without cause, at any time, by the Board at any meeting
of the Board or, except in the case of an officer or agent elected or appointed
by the Board, by the Chairman of the Board or the President.
SECTION 32. Vacancies. Any vacancy occurring in any office of the
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Corporation by death, resignation, removal or otherwise shall be filled for the
unexpired portion of the term of the office which shall be vacant, in the manner
prescribed in these By-laws for the regular election or appointment to such
office.
SECTION 33. The Chairman of the Board. The Chairman of the Board shall have
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the general and active supervision and direction over the other officers, agents
and employees and shall see that their duties are properly performed and shall
be the chief executive officer. He shall, if present, preside at each meeting of
the stockholders and of the Board and shall be an ex officio member of all
committees of the Board. He shall perform all duties incident to the office of
Chairman of the Board and such other duties as may from time to time be assigned
to him by the Board.
SECTION 34. The President. The President shall have general and active
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supervision and direction over the business operations and affairs of the
Corporation and over its several officers, agents and employees, subject,
however, to the direction of the Chairman of the Board and the control of the
Board of Directors.
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At the request of the Chairman of the Board, or in the case
of his absence or inability to act, the President shall perform the duties of
the Chairman of the Board and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the Chairman of the Board. In general,
the President shall have such other powers and shall perform such other duties
as usually pertain to the office of President or as from time to time may be
assigned to him by the Board, the Chairman of the Board or these By-Laws.
SECTION 35. Vice Presidents. Each Vice President shall have such powers
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and perform such duties as from time to time may be assigned to him by the
Board.
SECTION 36. The Treasurer. The Treasurer shall
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(1) have charge and custody of, and be responsible for, all the
funds and securities of the Corporation;
(2) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation;
(3) cause all monies and other valuables to be deposited to the
credit of the Corporation in such depositories as may be designated by
the Board;
(4) receive, and give receipts for, monies due and payable to
the Corporation from any source whatsoever;
(5) disburse the funds of the Corporation and supervise the
investment of its funds as ordered or authorized by the Board, taking
proper vouchers therefor; and
(6) in general, have all the powers and perform all the duties
incident to the office of Treasurer and such other duties as from time
to time may be assigned to him by the Board, the Chairman of the
Board, the Vice Chairman of the Board or the President.
SECTION 37. The Secretary. The Secretary shall
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(1) record the proceedings of the meetings of the stockholders
and directors in a minute book to be kept for that purpose;
(2) see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law;
(3) be custodian of the records and the seal of the Corporation
and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and attest
the seal to all other documents to be executed on behalf of the
Corporation under its seal;
(4) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are
properly kept and filed; and
(5) in general, have all the powers and perform all the duties
incident to the office of Secretary and such other duties as from time
to time may be assigned to him or her by the Board, the Chairman of
the Board, or the President.
SECTION 38. The Controller. The Controller shall be responsible for
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preparation of all required financial statements of the Corporation, subject to
the direction of such officer or officers as shall be designated by the Chairman
of the Board, and shall perform such other duties and have such other
responsibilities as shall be assigned to him by the Chairman of the Board or the
Board of Directors.
SECTION 39. Officers' Bonds or Other Security. The Board may secure
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the fidelity of any or all of its officers or agents by bond or otherwise, in
such amount and with such surety or sureties as the Board may require.
SECTION 40. Compensation. Subject to any employment agreement entered
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into by the Corporation and any officer, the compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board; provided, however, that the Board may delegate to the Chairman of
the Board or the President the power to fix the compensation of officers and
agents appointed by the Chairman of the Board or the President, as the case may
be. An officer of the Corporation shall not be prevented from receiving
compensation by
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reason of the fact that he is also a director of the Corporation, but any such
officer who shall also be a director (except in the event there is only one
director of the Corporation) shall not have any vote in the determination of the
amount of compensation paid to him.
ARTICLE V
Shares, etc.
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SECTION 41. Stock Certificates. Every holder of stock in the
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Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman of the Board or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, certifying the number of shares owned by him in the
Corporation. Any of or all the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer, transfer agent or registrar before such certificate is issued,
it may nevertheless be issued by the Corporation with the same effect as if he
were such officer, transfer agent or registrar at the date of issue.
SECTION 42. Books of Account and Record of Stockholders. The books and
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records of the Corporation may be kept at such places, within or without the
State of Delaware, as the Board of Directors may from time to time determine.
The stock record books and the blank stock certificate books shall be kept by
the Secretary or by any other officer or agent designated by the Board of
Directors.
SECTION 43. Transfer of Shares. Transfers of shares of stock of the
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Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. Except as otherwise
provided by law, the Corporation shall be entitled to recognize the exclusive
right of a person in whose name any share or shares stand on the record of
stockholders as the owner of such share or shares for all purposes, including,
without limitation, the rights to receive dividends or other distributions, and
to vote as such owner, and the Corporation may hold any such stockholder of
record liable for calls and assessments and the Corporation shall not be bound
to recognize any equitable or legal claim to or interest in any
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such shares or shares on the part of any other person whether or not it shall
have express or other notice thereof. Whenever any transfers of shares shall be
made for collateral security and not absolutely, and both the transferor and
transferee request the Corporation to do so, such fact shall be stated in the
entry of the transfer.
SECTION 44. Regulations. The Board may make such additional rules and
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regulations, not inconsistent with these By-laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
SECTION 45. Fixing of Record Date. In order that the Corporation may
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determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action.
SECTION 46. Lost, Stolen or Destroyed Stock Certificates. The holder of
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any certificate representing shares of stock of the Corporation shall notify the
Corporation of any loss, destruction or mutilation of such certificate, and the
corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Board may, in its discretion, require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient, as the Board in its absolute discretion shall determine, to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate. Anything herein to the contrary
notwithstanding, the Board, in its absolute discretion, may refuse to issue any
such new certificate, except pursuant to judicial proceedings under the laws of
the State of Delaware.
ARTICLE VI
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Contracts, Checks, Drafts, Bank Accounts, Etc.
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SECTION 47. Execution of Contracts. Except as otherwise required by
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statute, the Certificate of Incorporation or these By-Laws, any contract or
other instrument may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine.
SECTION 48. Loans. Unless the Board shall otherwise determine, the
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Chairman of the Board, the President or a Vice President may effect loans and
advances at any time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
certificates or evidences of indebtedness of the Corporation, but no officer or
officers shall mortgage, pledge, hypothecate or transfer any securities or other
property of the Corporation other than in connection with the purchase of
chattels for use in the Corporation's operations, except when authorized by the
Board.
SECTION 49. Checks, Drafts, etc. All checks, drafts, bills of exchange
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or other orders for the payment of money out of the funds of the Corporation,
and all notes or other evidence of indebtedness of the Corporation, shall be
signed in the name and on behalf of the Corporation by such persons and in such
manner as shall from time to time be authorized by the Board.
SECTION 50. Deposits. All funds of the Corporation not otherwise
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employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositaries as the Board may from time
to time designate or as may be designated by any officer or officers of the
Corporation to whom such power of designation may from time to time be delegated
by the Board. For the purpose of deposit and for the purpose of collection for
the account of the Corporation, checks, drafts and other orders for the payment
of money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation.
SECTION 51. General and Special Bank Accounts. The Board may from time
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to time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositaries as the Board may
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designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. The Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these By-Laws, as it
may deem expedient.
ARTICLE VII
Offices
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SECTION 52. Registered Office. The registered office and registered
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agent of the Corporation will be as specified in the Certificate of
Incorporation of the Corporation.
SECTION 53. Other Offices. The Corporation may also have such offices,
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both 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 VIII
Fiscal Year
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The fiscal year of the Corporation shall be so determined by the Board
of Directors.
ARTICLE IX
Seal
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The seal of the Corporation shall be circular in form, shall bear the
name of the Corporation and shall include the words and numbers "Corporate
Seal," "Delaware" and the year of incorporation.
ARTICLE X
Indemnification
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SECTION 54. General. The Corporation shall indemnify any person who
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was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, or by or in the right of the Corporation to procure a judgment
in its favor, by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, in accordance
with and to the full extent permitted by statute and by the Certificate of
Incorporation of the Corporation. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this section. The indemnification provided by this
section shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under these By-Laws or any agreement or vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 55. Insurance. The Corporation may purchase and maintain
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insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of statute or of this section.
ARTICLE XI
Amendment
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The By-Laws may be amended, repealed or altered by vote of the holders
of a majority of the shares of stock at the time entitled to vote in the
election of directors, except as otherwise provided in the Certificate of
Incorporation. The By-Laws may also be amended, repealed or altered by the Board
of Directors, but any By-Law adopted by the Board of Directors may be amended,
repealed or altered by the stockholders entitled to vote thereon as herein
provided.
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