EXHIBIT 3.5
Amended as of August 29, 2001
BY-LAWS
OF
TEAMSTAFF, INC.
(A New Jersey Corporation)
ARTICLE I
OFFICES AND AGENTS
Section l.l. Registered Office. The corporation shall have and maintain in
the State of New Jersey a registered office which may, but need not be, the same
as its place of business.
Section l.2. Other Offices. The corporation may also have offices and
places of business at such places within or without the State of New Jersey as
the Board of Directors may from time to time determine or the business of the
corporation may require.
Section l.3. Registered Agent. The corporation shall have and maintain in
the State of New Jersey a registered agent, which agent may be either an
individual resident in the State of New Jersey whose business office is
identical with the corporation's registered office, or a New Jersey corporation
(which may be itself) or a foreign corporation authorized to transact business
in the State of New Jersey, having a business office identical with such
registered office.
ARTICLE II
STOCK AND STOCKHOLDERS
Section 2.l. Certificates Representing Stock. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board or by the
President or Executive Vice-President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the corporation,
certifying the number of shares owned by him in the corporation. The
certificates for shares of stock of the corporation shall be in such form as
shall be determined by the Board of Directors, shall have set forth thereon any
statements prescribed by statute, and shall be numbered and entered in the stock
ledger of the corporation as they are issued. Any and all signatures on any such
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or
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registrar before such certificate is issued, it may 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 2.2. Lost Certificates. The Board of Directors may direct that a
new share certificate be issued in place of any certificate theretofore issued
by the corporation which has been mutilated or which is alleged to have been
lost, stolen or destroyed, upon presentation of each such mutilated certificate
or the making by the person claiming any such certificate to have been lost,
stolen or destroyed of an affidavit as to the fact and circumstances of the
loss, theft or destruction thereof, or complying with such other procedures as
may be established by the Board of Directors. The Board of Directors, in its
discretion and as a condition precedent to the issuance of any new certificate,
may require the owner of any certificate alleged to have been lost, stolen or
destroyed, or his legal representative, to furnish the corporation with 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 on account of the
alleged loss, theft or destruction of such certificate or the issuance of such
new certificate.
Section 2.3. Fractions of Shares. The corporation may, but shall not be
required to, issue fractions of a share. If the corporation does not issue
fractions of a share, it shall (l) arrange for the disposition of fractional
interests by those entitled thereto, (2) 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 (3) issue scrip or warrants in registered or bearer form which
shall entitle the holder to receive a certificate for a full share upon the
surrender of such scrip or warrants aggregating a full share. A certificate for
a fractional share shall, but scrip or warrants 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 or warrants to
be issued subject to the conditions that they shall become void if not exchanged
for certificates representing full shares before a specified date, or subject to
the conditions that the shares for which scrip or warrants are exchangeable may
be sold by the corporation and the proceeds thereof distributed to the holders
of scrip or warrants, or subject to any other conditions with the Board of
Directors may impose.
Section 2.4. Stock Transfers. Upon compliance with provisions restricting
the transfer or registration of transfer of shares of stock, if any, transfers
or registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
Section 2.5. Record Date. 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 corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or the allotment of any rights, or entitled to exercise any rights
in respect of any
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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 (60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other action. If no
record date is fixed, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day 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; the record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, shall be the day on which
the first written consent is expressed; and the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at any
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.
Section 2.6. Meetings of Stockholders.
2.6.1. Time and Place. All meetings of stockholders shall be held at the
principal office of the corporation or at such other place and time, whether
within or without the State of New Jersey, as shall be stated in the notice of
the meeting or in a duly executed waiver of notice thereof, as authorized by the
Board of Directors.
2.6.2. Annual Meetings. An annual meeting of stockholders, commencing with
the year 2001, shall be held on the first Tuesday in April of each year, or if
such day is a legal holiday, on the next business day following; provided, that
if the Board of Directors shall determine that in any year it is not advisable
or convenient to hold the meeting on such day, then in such year the annual
meeting shall instead be held on such other day as determined by the Board of
Directors. At each annual meeting, the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting.
2.6.3. Special Meetings. Special meetings of stockholders, for any purpose
or purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the Chairman of the Board, the President or a
majority of the Board of Directors. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
2.6.4. Notice of Meetings. Written notice of each meeting of stockholders,
stating the place, date and hour thereof, and, in the case of a special meeting,
specifying the purpose or purposes thereof, shall be given to each stockholder
entitled to vote thereat not less than ten (10) days nor more than sixty (60)
days prior to the meeting, except that where the matter to be acted on is a
merger or consolidation or the dissolution of the corporation or a sale, lease,
exchange or other disposition of all or substantially all of its assets, such
notice shall be given not less than twenty (20) days nor more than sixty (60)
days prior to such meeting. If a meeting is adjourned to another time
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and place, notice need not be given of the adjourned meeting 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 (30) 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.
2.6.5. Business Before a Meeting. To be properly brought before the
meeting, business must be either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board, or (c) otherwise properly brought before the meeting by a stockholder. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Company not later than 90
days prior to the meeting anniversary date of the immediately preceding annual
meeting or if no annual meeting was held for any reason in the preceding year,
90 days prior to the first Tuesday in April. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of the stockholder proposing
such business, (iii) the class and number of shares of the Company which are
beneficially owned by the stockholder and (iv) any material interest of the
stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.6.5 of Article 2, provided, however, that
nothing in this Section 2.6.5 of Article 2 shall be deemed to preclude
discussion by any stockholder of any business properly brought before the annual
meeting.
The Chairman of any meeting of shareholders shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section
2.6.5 of Article 2 and if he should so determine, which determination shall be
conclusive, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
2.6.6. Stockholder List. The Secretary of the corporation shall prepare
and make, or cause to be prepared and made, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city or other municipality or
community 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. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof,
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and may be inspected by any stockholder who is present. The stock ledger shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by this subsection or the books of the
corporation, or to vote in person or by proxy at any meeting of stockholders.
2.6.7. Quorum. Except as otherwise provided by statute or the Certificate
of Incorporation, the holders of a majority of the shares of stock of the
corporation issued and outstanding and entitled to vote thereat, present in
person or by proxy, shall be necessary to and shall constitute a quorum for the
transaction of business at each meeting of stockholders. If a quorum shall not
be present at the time fixed for any meeting, the stockholders present in person
or by proxy and entitled to vote thereat shall have power to adjourn the meeting
from time to time, without notice other than an announcement at the meeting of
the place, date and hour of the adjourned meeting, until a quorum shall be
present; and at any such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted had a quorum
been present at the time originally fixed for the meeting.
2.6.8. Conduct of Meeting. Meetings of the stockholders shall be presided
over by one of the following Officers in the order of seniority and if present
and acting: the Chairman of the Board, Vice-Chairman of the Board, the
President, the Executive Vice President, a Vice President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the chairman of the meeting shall appoint
a secretary of the meeting. The Board of Directors of the Company shall be
entitled to make such rules or regulations for the conduct of meetings of
stockholders as it shall deem necessary, appropriate or convenient. Subject to
such rules and regulations of the Board of Directors, if any, the chairman of
the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are necessary, appropriate or convenient for the proper conduct of the
meeting, including, without limitation, establishing an agenda or order of
business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such
meeting to stockholders of record of the Company and their duly authorized and
constituted proxies, and such other persons as the chairman shall permit,
restrictions on entry at the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comments by
participants and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot. Unless, and to the
extent, determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with
rules or parliamentary procedures.
2.6.9. Voting. Except as otherwise provided by statute or by the
Certificate of Incorporation, at any meeting of stockholders each stockholder
shall be entitled to one vote for each outstanding share of stock of the
corporation standing in such holder's name on the books of the corporation as of
the record date for determining the stockholders entitled to notice of and to
vote at such meeting. At any meeting of stockholders at which a quorum is
present, all elections shall be determined by
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plurality vote and all other matters shall be determined by the vote of the
holders of a majority of the shares present in person or by proxy and entitled
to vote, unless the matter is one with respect to which, by express provision of
statute, the Certificate of Incorporation or these By-Laws, a different vote is
required, in which case such express provision shall govern and control the
determination of such matter.
2.6.10. Proxy Representation. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent to corporate action
in writing without a meeting. Every proxy must be signed by the stockholder or
by his attorney-in-fact. No proxy shall be voted or acted upon after three years
from its date unless such proxy provides for a longer period.
2.6.11. Inspectors of Election. The Board of Directors, in advance of any
meeting of stockholders, may, but need not, appoint one or more inspectors of
election to act at the meeting or any adjournment thereof. If an inspector or
inspectors are not appointed in advance of the meeting, the person presiding at
the meeting may, but need not, appoint one or more inspectors. In case any
person who may be appointed as an inspector fails to appear or act, the vacancy
may be filled by appointment made by the Board of Directors in advance of the
meeting or at the meeting by the person presiding thereat. 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, if any,
shall determine the number of shares of stock outstanding 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 person presiding at the meeting, the inspector or inspectors, if any, shall
make a report in writing of any challenge, question or matter determined by him
or them and execute a certificate of any fact found by him or them.
Section 2.7. Action of Stockholders Without a Meeting. Subject to the
requirements contained in Section 14A:5.6 of the New Jersey Business Corporation
Act (or any successor section), any action required or permitted to be taken at
an annual or special meeting of stockholders by statute, the Certificate of
Incorporation or these By-Laws, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Where any action is taken in such manner by less than unanimous
written consent, prompt written notice of the taking of such action shall be
given to all stockholders who have not consented in writing thereto.
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ARTICLE III
DIRECTORS
Section 3.l. Board of Directors. The business and affairs of the
corporation shall be managed by or under the direction of a Board of Directors.
The Board of Directors may exercise all such powers of the corporation and do
all such lawful acts and things on its behalf 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. Without limiting the generality of the
preceding sentence, the Board of Directors is expressly authorized to exercise
all of the power of the corporation to borrow or raise moneys and to execute,
accept, endorse and deliver as evidence of such borrowing all kinds of
securities; and to secure the payment and performance of the obligations
thereunder by mortgage on, pledge of, or other security interest in, the whole
or any part of the property, assets and income of the corporation.
Section 3.2. Qualifications. Directors need not be stockholders of the
corporation, citizens of the United States or residents of the State of New
Jersey.
Section 3.3. Number. The number of Directors constituting the whole Board
of Directors shall be not less than three (3) nor more than fifteen (15) as
fixed from time to time by resolution of the Board or by the stockholders or, if
the number of Directors constituting the whole Board is not so fixed, the number
shall be three (3); provided, that no decrease in the number of Directors shall
shorten the term of any incumbent director.
Section 3.4. Nominations. Nominations for the election of Directors may be
made by the Board of Directors or a committee appointed by the Board of
Directors or by 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 written notice of such stockholder's intent to make such
nomination or nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the Company not later
than (i) with respect to an election to be held at an annual meeting of
stockholders, 90 days prior to the anniversary date of the immediately preceding
annual meeting or if an annual meeting has not been held in the preceding year,
90 days from the first Tuesday in April; and (ii) with respect to an election to
be held at a special meeting of stockholders for the election of Directors, the
close of business on the tenth day following the date on which notice of such
meeting is first given to stockholders. 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 stock of the Company entitled to vote at
such meeting 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) such other
information regarding each nominee proposed by such stockholder as would be
required to be
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included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (e) the consent of each nominee to serve
as a director of the Company if so elected. The presiding officer of the meeting
may refuse to acknowledge the nomination of any person not made in compliance
with the foregoing procedure.
Section 3.5. Election and Tenure. With the exception of the first Board of
Directors named in the Certificate of Incorporation, and except as otherwise
permitted in these By-Laws, Directors shall be elected at the annual meeting of
stockholders in accordance with these by-laws and the Corporation's Certificate
of Incorporation. Subject to any provisions contained in the Certificate of
Incorporation, each director shall hold office for a term expiring at the annual
meeting of stockholders next succeeding his election and until his successor is
elected and has qualified or until his earlier displacement from office by
resignation, removal or otherwise; provided, however, in the event that the
Board is classified into more than one class, directors shall serve until the
expiration of the term of the class in which any director is then serving. Any
director shall be eligible for re-election.
Section 3.6. Resignation and Removal. Any director may resign at any time
by written notice to the corporation. Subject to any provisions in the
Certificate of Incorporation regarding the removal of directors, any director or
the whole Board of Directors may be removed, with cause, by the holders of a
majority of the shares entitled to vote at an election of Directors, and any
director or the whole board of Directors may be removed without cause by the
holders of a majority of the shares of the Class then entitled to vote for the
election of the director or Directors sought to be removed. Any such removal
shall be without prejudice to the rights, if any, of the director so removed
under any contract of service or other agreement with the corporation.
Section 3.7. Vacancies.
(a) Any vacancy in the Board of Directors occurring by reason of the
death, resignation or disqualification of any director, the removal of any
director from office for cause or without cause, an increase in the number of
Directors, or otherwise, may be filled by the vote of a majority of the
Directors then in office; provided, however, that (i) commencing with the
election of directors effective at the annual meeting of shareholders on August
28, 2001, any vacancy of any director serving as a nominee of First Union
Corporation (or its affiliates) or Nationwide Financial Inc. that occurs prior
to the expiration of the class term for which that director was elected at such
annual meeting held on August 28, 2001 shall be filled by a replacement nominee
of First Union Corporation (or its affiliates) or Nationwide Financial Inc., as
the case may be, and (ii) if one or more directors shall resign from the Board
effective at a future date, a majority of the Board of Directors effective at a
future date, a majority of the directors then in office, including those who
have so resigned, elected by the holders of the shares of the class entitled to
vote at an election of Directors for the vacancy sought to be filled, may fill
such vacancy or vacancies, the vote thereon to take effect when such resignation
or resignations become effective.
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(b) Each director elected to fill a vacancy shall hold office for a term
expiring at the next succeeding annual meeting of stockholders and until his
successor is elected and has qualified or until his earlier displacement from
office by resignation, removal or otherwise; provided, however, that in the
event the Board of Directors is divided into more than one class, any director
appointed to fill a vacancy shall serve until the expiration of the term of the
class into which such director was appointed to fill.
Section 3.8. Meetings of the Board.
3.8.l. First Meeting. The Directors at each annual meeting of stockholders
shall hold their first meeting as soon as practicable following the date of
their election, and in any event within thirty (30) days after each annual
meeting of stockholders, at such time and place as shall be fixed by resolution
of the Board of Directors prior to the annual meeting or by the consent in
writing of all the newly-elected Directors, for the purpose of choosing the
Officers of the corporation and for the transaction of such other business as
may properly be brought before the meeting, and no notice of such meeting to the
newly-elected Directors shall be necessary in order legally to constitute the
meeting, provided a quorum shall be present.
3.8.2. Regular Meetings. Regular meetings of the Board of Directors may be
held, without notice, at such times and places as shall from time to time be
fixed in advance by resolution of the Board.
3.8.3. Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the Vice Chairman or the President, and, at
the written request of a majority of the members of the whole Board, shall be
called by the Chairman of the Board, the President or the Secretary. Notice of
each special meeting of Directors, stating the time and place of the meeting and
the purpose or purposes thereof, shall be given to each director at least
twenty-four (24) hours before such meeting. The time and place of any special
meeting of Directors may also be fixed by a duly executed waiver of notice
thereof.
3.8.4. Chairman of the Meeting. The Chairman of the Board, if present and
acting, shall preside at all meetings of the Board of Directors. Otherwise, the
Vice-Chairman, the President, if present and acting, or any other director
chosen by the Board, shall preside.
Section 3.9. Committees of the Board.
3.9.l. Designation. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate one or more committees, each
committee to consist of two (2) or more Directors. The Board of Directors may
from time to time remove members from, or add members to, any committee. Each
such committee, to the extent provided in the resolution designating it, 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.
However, no such committee shall have
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power or authority in reference to: (a) amending the Certificate of
Incorporation; (b) adopting an agreement of merger or consolidation; (c)
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets; (d) recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution; or (e) amending these By-Laws; and, unless expressly so provided by
resolution of the Board, no such committee shall have power or authority in
reference to: (i) declaring a dividend; or (ii) authorizing the issuance of
shares of stock of the corporation of any class.
3.9.2. Alternate Members. The Board of Directors may designate one or more
Directors as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members 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 of
Directors to act at the meeting in the place of any such absent or disqualified
member.
3.9.3. Tenure; Reports; Procedures. Each such committee shall serve at the
pleasure of the Board of Directors. It shall keep minutes of its meetings and
report the same to the Board of Directors as and when requested by the Board,
and it shall observe such other procedures with respect to its meetings as are
prescribed in these By-Laws or, to the extent not prescribed herein, as may be
prescribed by the Board of Directors.
Section 3.10. Quorum and Voting. At all meetings of the Board of Directors
or any committee of the Board, a majority of the whole Board or of the entire
membership of such committee shall be necessary and sufficient to constitute a
quorum for the transaction of business, except when a vacancy or vacancies
prevents such a majority, whereupon a majority of the Directors in office or
appointed to such committee shall constitute a quorum, provided that such
majority shall constitute at least one-third of the whole Board or membership of
the committee, as the case may be. The vote of a majority of the Directors or
members of the committee present at any meeting at which a quorum is present
shall be the act of the Board of Directors or of such committee, except as may
be otherwise specifically provided by statute or the Certificate of
Incorporation or these By- Laws. Common or interested Directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors
or of a committee of the Board which authorizes a contract or transaction
between the corporation and one or more of its Directors, or between the
corporation and any other corporation, partnership, association or other
organization in which one or more of the Directors of the corporation are
Directors or Officers, or have a financial interest. If a quorum shall not be
present at any meeting of the Board of Directors or any committee of the Board,
the members of the Board or such committee present thereat may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum shall be present.
Section 3.11. Telephone Participation. Members of the Board of Directors
or of any committee of the Board may participate in a meeting of the Board or
committee by means of conference telephone or similar communications equipment
by means of which all persons
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participating in the meeting can hear each other. Participation in a meeting in
accordance with this section shall constitute presence in person at such
meeting.
Section 3.12. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee of the
Board 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 of proceedings of the Board or committee.
Section 3.13. Compensation. The Board of Directors is authorized to make
provision for reasonable compensation to its members for their services as
Directors and to fix the basis and conditions upon which this compensation shall
be paid. Any director may also serve the corporation in any other capacity and
receive compensation therefor in any form.
Section 3.14. Reliance on Books and Records. A member of the Board of
Directors or of any committee thereof designated by the Board as provided in
these By-Laws, shall, in the performance of his duties, be fully protected in
relying in good faith upon the books of account or reports made to the
corporation by any of its Officers, or by an independent certified public
accountant or by an appraiser selected with reasonable care by the Board of
Directors or by any such committee, or in relying in good faith upon other
records of the corporation.
ARTICLE IV
NOTICES
Section 4.l. Delivery of Notices. Notices to directors and stockholders
may be delivered personally or by mail. A notice by mail shall be deemed to be
given at the time when it is deposited in the post office or a letter box,
enclosed in a post-paid sealed wrapper and addressed to the person entitled to
notice at his address appearing on the books of the corporation, unless any such
person shall have filed with the Secretary of the corporation a written request
that notices intended for him be mailed or delivered to some other address, in
which case the notice shall be mailed to or delivered at the address designated
in such request. Notice to any director may also be given by telephone, by
telegram, or by leaving the notice at the residence or usual place of business
of the Director.
Section 4.2. Waiver of Notice. Whenever notice is required to be given by
statute, the Certificate of Incorporation or these By-Laws, a written waiver
thereof, signed by the person entitled to notice, 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. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
Directors or members of a committee of Directors need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation
or these By-Laws.
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ARTICLE V
OFFICERS
Section 5.l. Executive Officers. The executive Officers of the corporation
shall be a Chairman of the Board, Vice-Chairman, a President, a Chief Executive
Officer, a Treasurer, a Chief Financial Officer, a Chief Operating Officer, a
Secretary and, if deemed necessary, expedient or desirable by the Board of
Directors, and one or more other Executive Vice Presidents or Vice Presidents.
The Chairman of the Board, President and Chief Executive Officer shall be
selected from among the Directors, but no other executive officer need be a
member of the Board of Directors. Two or more offices may be held by the same
person, but no office shall execute, acknowledge or verify any instrument in
more than one capacity. The executive Officers of the corporation shall be
elected annually by the Board of Directors at its first meeting following the
meeting of stockholders at which the Board was elected.
Section 5.2. Other Officers and Agents. The corporation may also have such
other Officers which such titles and duties as shall be stated in these By-Laws
or in a resolution of the Board of Directors which is not inconsistent with
these By-Laws. The Board of Directors may elect, or may delegate to the Chairman
of the Board or President or Chief Executive Officer authority to appoint and
remove, and to fix the duties, compensation and terms of office of, one or more,
Vice Presidents, Assistant Treasurers and Assistant Secretaries and such other
Officers and agents as the Board may at any time or from time to time determine
to be advisable.
Section 5.3. Tenure; Resignation; Removal. Each officer of the corporation
shall hold office until his successor is elected or appointed or until his
earlier displacement from office by resignation, removal or otherwise; provided,
that if the term of office of any officer elected or appointed pursuant to
Section 5.2 of these By-Laws shall have been fixed by the Board of Directors or
by the Chairman of the Board or President or Chief Executive Officer acting
under authority delegated to him by the Board, he shall cease to hold such
office not later than the date of expiration of such term, regardless of whether
any other person shall have been elected or appointed to succeed him. Any
officer may resign at any time by giving written notice to the corporation and
may be removed for cause or without cause by the Board of Directors, or by the
Chairman of the Board or President or Chief Executive Officer acting under
authority delegated to him by the Board of Directors pursuant to Section 5.2 of
these By-Laws; provided, that any such removal shall be without prejudice to the
rights, if any, of the officer so removed under any contract of service or other
agreement with the corporation.
Section 5.4. Compensation. The compensation of all Officers of the
corporation shall be fixed by the Board of Directors, or by the Chairman of the
Board or President or Chief Executive Officer acting under authority delegated
to him by the Board of Directors pursuant to Section 5.2 of these By-Laws.
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Section 5.5. Authority and Duties. All Officers as between themselves and
the corporation, shall have such authority and perform such duties in the
management of the corporation as maybe provided in these By-Laws, or, to the
extent not so provided, as may be prescribed by the Board of Directors, or by
the Chairman of the Board or President or Chief Executive Officer acting under
authority delegated to him by the Board of Directors pursuant to Section 5.2 of
these By-Laws.
Section 5.6. Chairman of the Board. The Chairman of the Board of
Directors, if one is elected, shall preside over all meetings of the Board,
shall perform all duties, incident to the office of the Chairman and shall
perform such other duties as may from time to time be assigned to him by the
corporation's by-laws, certificate of incorporation or Board of Directors. In
the absence of the designation of a chief executive officer by the Board to the
contrary, the Chairman shall function as the corporation's chief executive
officer.
5.6.1. Chief Executive Officer. The Chairman of the Board, Vice-Chairman
of the Board or President of the corporation may be designated by the Board as
the chief executive officer of the corporation. He shall preside at all meetings
of the stockholders if present thereat, and in the absence or non-election of a
Chairman and Vice-Chairman of the Board of Directors, at all meetings of the
Board of Directors, and shall have general supervision, direction and control of
the business of the corporation. Except as the Board of Directors shall
authorize the execution thereof in some other manner, he shall execute bonds,
mortgages and other contracts on behalf of the corporation, and shall cause the
seal to be affixed to any instrument requiring it and when so affixed the seal
shall be attested by the signature of the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer.
5.6.2. Corporate Development Officer. The Chairman of the Board,
Vice-Chairman of the Board, President or Executive Vice-President of the
corporation may be designated by the Board as the corporate development officer
of the corporation. The corporate development officer shall assist in the
oversight and implementation of the Company's financial and capital structure
and requirements and the consideration and implementation of the Company's
acquisition strategy, and shall perform such other duties as may from time to
time be assigned to him by the corporation's by- laws or Board.
Section 5.7. Vice-Chairman of the Board. The Vice-Chairman of the Board of
Directors, if one is elected, shall preside over all meetings of the Board and
shall perform all duties incident to the office of the Chairman in the absence
of or non-election of the Chairman and shall perform such other duties as may
from time to time be assigned to him by the corporation's by-laws, certificate
of incorporation or Board.
Section 5.8. President. The President of the corporation shall have the
general powers and duties of supervision and management of the operations of the
corporation usually vested in the office of President of a corporation.
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Section 5.9. The Secretary. The Secretary, or an Assistant Secretary,
shall attend all meetings of the stockholders and the Board of Directors and
shall record the minutes of all proceedings taken at such meetings, or maintain
all documents evidencing corporate actions taken by written consent of the
stockholders or of the Board of Directors, in a book to be kept for that
purpose; and he shall perform like duties for any committees of the Board of
Directors when required. He shall see to it that all notices of meetings of the
stockholders and of special meetings of the Board of Directors are duly given in
accordance with these By-Laws or as required by statute; he shall be the
custodian of the seal of the corporation, and, when authorized by the Board of
Directors, he shall cause the corporate seal to be affixed to any document
requiring it, and, when so affixed, attested by his signature as Secretary; and
he shall perform such other duties as may from time to time be prescribed by the
Board of Directors.
Section 5.10. Treasurer. The Treasurer shall be the chief financial
officer of the corporation and shall have custody of the corporate funds and
securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the corporation. He shall deposit all moneys
and other valuables in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors, or the President, taking proper vouchers for
such disbursements. He shall render to the President and Board of Directors at
the regular meetings of the Board of Directors, or whenever they may request it,
an account of all his transactions as Treasurer and of the financial condition
of the corporation. If required by the Board of Directors, he shall give the
corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board shall prescribe.
Section 5.11. Executive Vice-President. Each Executive Vice-President
shall have such powers and shall perform such duties as shall be assigned to him
by the Directors.
Section 5.12. Assistant Treasurers and Assistant Secretaries. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the Directors.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Dividends and Distributions; Reserves. Subject to all
applicable provisions of law, the Certificate of Incorporation and any indenture
or other agreement to which the corporation is a party or by which it is bound,
the Board of Directors may declare to be payable, in cash, in other property or
in shares of the corporation of any class or series, such dividends and
distributions upon or in respect of outstanding shares of the corporation of any
class or series as the Board may at any time or from time to time deem to be
advisable. Before declaring any such dividend or distribution, the Board of
Directors may cause to be set aside, out of any funds or other
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property or assets of the corporation legally available for the payment of
dividends or distributions, such sum or sums as the Board, in their absolute
discretion, may consider to be proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the Board may deem
conducive to the interest of the corporation, and the Board may modify or
abolish any such reserve in the manner in which it was created.
Section 6.2. Checks, Notes, Etc. All checks or other orders for the
payment of money, all notes or other instruments evidencing indebtedness of the
corporation and all receipts for money paid to the corporation shall be signed,
drawn, accepted, endorsed or otherwise executed on its behalf, as the case may
be, in such manner and by such officer or Officers or such other person or
persons as the Board of Directors may from time to time designate. The Board of
Directors may authorize the use of facsimile signatures of any officer or
employee in lieu of manual signatures.
Section 6.3. Fiscal Year. The fiscal year of the corporation shall be
fixed, and may from time to time be changed, by resolution of the Board of
Directors.
Section 6.4. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, New Jersey." The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or otherwise reproduced.
Section 6.5. Voting of Securities of Other Corporations. In the event that
the corporation shall at any time or from time to time own and have power to
vote any securities (including but not limited to shares of stock) of any other
issuer, they shall be voted by such person or persons, to such extent and in
such manner as may be determined by the Board of Directors.
ARTICLE VII
AMENDMENT
A majority of the whole Board of Directors shall have the power, by
resolution, to amend or repeal these By-Laws or to adopt new by-laws; provided,
however, that such power shall not divest the stockholders of the power, nor
limit their power, to adopt, amend or repeal by-laws.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS,
OFFICERS AND EMPLOYEES
Except to the extent expressly prohibited by the New Jersey Business
Corporation Act, the corporation shall indemnify each person made or threatened
to be made a party to any action or
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proceeding, whether civil or criminal, by reason of the fact that such person or
such person's testator or intestate is or was a director, officer or employee of
the corporation, or serves or served at the request of the corporation, any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity, against judgment, fines, penalties, amounts
paid in settlement and reasonable expenses, including attorneys' fees, incurred
in connection with such action or proceeding, or any appeal therein, provided
that no such indemnification shall be made if a judgment or other final
adjudication adverse to such person establishes that his or her acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled, and provided further that no such indemnification
shall be required with respect to any settlement or other nonadjudicated
disposition of any threatened or pending action or proceeding unless the
corporation has given its prior consent to such settlement or other disposition.
The corporation may advance or promptly reimburse upon request any person
entitled to indemnification hereunder for all expenses, including attorneys'
fees, reasonably incurred in defending any action or proceeding in advance of
the final disposition thereof upon receipt of an undertaking by or on behalf of
such person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such person is
entitled, provided, however, that such person shall cooperate in good faith with
any request by the corporation that common counsel be utilized by the parties to
an action or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interests between or among
such parties.
Nothing herein shall limit or affect any right of any person otherwise
than hereunder to indemnification or expenses, including attorneys' fees, under
any statute, rule, regulation, certificate of incorporation, by-law, insurance
policy, contract or otherwise.
Anything in these by-laws to the contrary notwithstanding, no elimination
of this by-law, and no amendment of this by-law adversely affecting the right of
any person to indemnification or advancement of expenses hereunder shall be
effective until the 60th day following notice to such person or such action, and
no elimination of or amendment to this by-law shall deprive any person of his or
her rights hereunder arising out of alleged or actual occurrences, acts or
failures to act prior to such 60th day.
The corporation shall not, except by elimination or amendment of this
by-law in a manner consistent with the preceding paragraph, take any corporate
action or enter into any agreement which prohibits, or otherwise limits the
rights of any person to, indemnification in accordance with the provisions of
this by-law. The indemnification of any person provided by this by-law shall
continue after such person has ceased to be a director, officer or employee of
the corporation and shall inure to the benefit of such person's heirs,
executors, administrators and legal representatives.
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The corporation is authorized to enter into agreements with any of its
Directors, Officers or employees extending rights to indemnification and
advancement of expenses to such person to the fullest extent permitted by
applicable law, but the failure to enter into any such agreement shall not
affect or limit the rights of such person pursuant to this by-law, it being
expressly recognized hereby that all Directors, Officers and employees of the
corporation, by serving as such after the adoption hereof, are acting in
reliance hereon and that the corporation is estopped to contend otherwise.
In case any provision in this by-law shall be determined at any time to be
unenforceable in any respect, the other provisions shall not in any way be
affected or impaired thereby, and the affected provision shall be given the
fullest possible enforcement in the circumstances, it being the intention of the
corporation to afford indemnification and advancement of expenses to its
Directors, Officers and employees, acting in such capacities or in the other
capacities mentioned herein, to the fullest extent permitted by law.
For purposes of this by-law, the corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his or her duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan, and excise taxes assessed on a person with respect to
an employee benefit plan pursuant to applicable law shall be considered
indemnifiable expenses. For purposes of this by-law, the term "corporation"
shall include any legal successor to the corporation, including any corporation
which acquires all or substantially all of the assets of the corporation in one
or more transactions.
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