Exhibit 3.7
BYLAWS OF
FD MANAGEMENT, INC.
(a Delaware corporation)
ARTICLE I
Stockholders
Section 1.1. Annual Meeting. An annual meeting of stockholders shall be
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held for the election of directors at such date, time and place, either within
or without the State of Delaware, as may be designated by resolution of the
Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2 Special Meetings. Special meetings of stockholders for any
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purpose or purposes may be called at any time by the Board of Directors or the
President. Special meetings may not be called by any other person or persons.
Section 1.3 Notice of Meetings. Whenever stockholders are required or
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permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, notice
is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his address as it appears on the records of the Corporation.
Section 1.4 Adjournments. Any meeting of stockholders, annual or
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special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting which the adjournment is taken.
At the adjourned meeting, the Corporation may transact any business that might
have been transacted at the original meeting. 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 1.5 Quorum. At each meeting of stockholders, except where
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otherwise provided by law or the Certificate of Incorporation or these bylaws,
the holders of a majority of the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a quorum. In the
absence of a quorum, the stockholders so present may, by majority vote, adjourn
the meeting from time to time in the manner provided in Section 1.4 of these
bylaws until a quorum is present.
Section 1.6 Organization. Meetings of stockholders shall be presided
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over by the person designated by the Board of Directors. The Secretary shall
act as secretary of the meeting,
but in his absence the chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 1.7 Voting; Proxies. Unless otherwise provided in the
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Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
the stockholder that has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him by proxy, but no such proxy shall be voted or
acted upon after three years after its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy that is not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date with the Secretary of the Corporation. Voting at
meetings of stockholders need not be by written ballot and need not be conducted
by inspectors unless the holders of a majority of the outstanding shares of all
classes of stock entitled to vote thereon present in person or by proxy at such
meeting shall so determine. At all meetings of stockholders for the election of
directors, a plurality of the votes cast shall be sufficient to elect directors,
unless otherwise provided in the Certificate of Incorporation. All other
elections and questions shall, unless otherwise provided by law or by the
Certificate of Incorporation or these bylaws, be decided by the vote of holders
of a majority of the outstanding shares of stock entitled to vote thereon
present in person or by proxy at the meeting, provided that (except as otherwise
required by law or by the Certificate of Incorporation) the Board of Directors
may require a larger vote upon any election or question.
Section 1.8 Fixing Date for Determination of Stockholders of Record. In
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order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or express
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which shall not preclude the date upon which the
resolution fixing the record date is adopted by the Board of Directors. The
record date for determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, shall not be more than sixty
nor less than ten days before the date of such meeting. 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. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
The record date to determine the stockholders entitled to consent to
corporate action in writing without a meeting shall not be more than ten days
after the date upon which the resolution fixing the record date is adopted by
the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is
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required by the General Corporation Law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by the General Corporation Law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
Section 1.9 List of Stockholders Entitled to Vote. The Secretary shall
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prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof 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 of stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 1.10 Action by Consent of Shareholders. Unless otherwise
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restricted by the Certificate of Incorporation, any action required or permitted
to be taken at any annual or special meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less that 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. Prompt notice of taking of
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
ARTICLE II
Board of Directors
Section 2.1 Number; Qualifications. The Board of Directors of the
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Corporation shall consist of one or more members, the number thereof to be
determined from time to time by resolution of the Board of Directors. Directors
need not be stockholders.
Section 2.2 Elections; Resignation; Removal; Vacancies. The Board of
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Directors shall initially consist of the persons elected as such by the
incorporator. At the first annual meeting of
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stockholders and at each annual meeting thereafter, the stockholders shall elect
Directors to replace those Directors whose terms then expire. Any Director may
resign at any time upon written notice to the Corporation. Stockholders may
remove Directors with or without cause. Any vacancy occurring in the Board of
Directors for any cause may be filled by a majority of the remaining members of
the Board of Directors, although such majority is less than a quorum, or by a
plurality of the votes cast at a meeting of stockholders, and each Director so
elected shall hold office until the expiration of the term of office of the
Director whom he has replaced.
Section 2.3 Regular Meetings. Regular meetings of the Board of Directors
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may be held at such places within or without the State of Delaware and at such
time as the Board of Directors may from time to time determine, and if so
determined, notice of the meeting shall be given.
Section 2.4 Special Meetings. Special meetings of the Board of Directors
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may be held at any time or place within or without the State of Delaware
whenever called by the President, or by any member of the Board of Directors.
Reasonable notice thereof shall be given by the person or persons calling the
meeting, not later than the second day before the date of the special meeting.
Section 2.5 Telephonic Meetings Permitted. Members of the Board of
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Directors, or any committee designated by the Board, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
bylaw shall constitute presence in person at such meeting.
Section 2.6 Quorum; Vote Required for Action. At all meetings of the
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Board of Directors a majority of the whole Board shall constitute a quorum for
the transaction of business. Except in cases in which the Certificate of
Incorporation or these bylaws otherwise provide, the vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 2.7 Organization. Meetings of the Board of Directors shall be
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presided over by the Chairman of the Board, if any, or in his absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
Section 2.8 Informal Action by Directors. Unless otherwise restricted by
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the Certificate of Incorporation or these bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or
such 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.
ARTICLE III
Committees
Section 3.1 Committees. The Board of Directors 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 one or more of the directors of the Corporation and such
officers of the Corporation as are designated by the Board. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of the committee, the member or
members 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 place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority relating to the management of the business and affairs of the
Corporation as are delegated to it by the Board of Directors, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have power or authority to amend the Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors as provided in Section 151(a) of the General
Corporation Law, fix the designation and any of the preferences or rights of the
shares), adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of dissolution, or amend these bylaws; and,
unless the resolution expressly so provides, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock.
Section 3.2 Committee Rules. Unless the Board of Directors otherwise
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provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these bylaws.
ARTICLE IV
Officers
Section 4.1 Executive Officers; Election; Qualification; Term of Office;
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Resignation; Removal; Vacancies. The Board shall choose a President and
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Secretary, and it may, if it so determines, choose a Chairman of the Board from
among its members. The Board of Directors may also choose one or more Vice
Presidents, one or more Assistant Secretaries, a Treasurer and one or more
Assistant Treasurers. Each such officer shall hold office until the first
meeting of the Board of Directors after the annual meeting of stockholders next
succeeding this election, and until his successor is elected and qualified or
until his earlier resignation or removal. Any officer may resign at any time
upon written notice to the Corporation. The Board of Directors may remove any
officer with or without cause at any time, but such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation. Any number of offices may be held by the same person. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the term by the Board of
Directors at any regular or special meeting.
Section 4.2 Powers and Duties of Executive Officers. The officers of the
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Corporation shall have such powers and duties in the management of the
Corporation as may be prescribed by the Board of Directors and, to the extent
not so provided, as generally pertain to their respective offices, subject to
the control of the Board of Directors.
ARTICLE V
Stock
Section 5.1 Certificates. Every holder of stock shall be entitled to
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have a certificate representing the number of shares owned by him in the
Corporation signed by or in the name of the Corporation by the President or a
Vice President, and by the Treasurer or the Secretary of 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 a certificate shall have ceased to be such
officer, transfer agent, or 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 5.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New
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Certificates. The Corporation may issue a new certificate of stock in the place
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of any certificate issued by it that is alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it
on account of the alleged loss, theft or destruction of such certificate or the
issuance of the new certificate.
ARTICLE VI
Miscellaneous
Section 6.1 Fiscal Year. The fiscal year of the Corporation shall be
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determined by resolution of the Board of Directors.
Section 6.2 Waiver of Notice of Meeting of Stockholders, Directors and
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Committees. Any written waiver of notice, signed by the person entitled to
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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.
Section 6.3 Interested Directors; Quorum. No contract or transaction
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between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely because
the director or officer is present at or participates in the meeting of the
Board or committee thereof which authorized the contract or transaction or
solely because his or their votes are counted for such purpose, if: (1) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (2)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (3) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof, or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
Section 6.4 Form of Records. All records maintained by the Corporation
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in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept
can be converted into clearly legible form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect the same.
Section 6.5 Amendment of Bylaws. These bylaws may be altered or
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repealed, and new bylaws made, by the Board of Directors. The stockholders may
make additional bylaws and may alter and repeal any bylaws whether adopted by
them or otherwise.
ARTICLE VII
Indemnification of Directors and Officers
Section 7.1. Right to Indemnification. The Corporation shall indemnify
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each officer and director of the Corporation (including the heirs, executors,
administrators, or estate of the officer or director) to the fullest extent
permitted or authorized by current or future legislation or by current or future
judicial or administrative decision (but, in the case of any future legislation
or decision, only to the extent that it permits the Corporation to provide
broader indemnification rights than permitted prior to the legislation or
decision), against all fines, liabilities, costs and expenses, including
attorneys' fees, asserted against the officer or director or incurred by him in
his capacity as a director or officer, or arising out of his status as a
director or officer. The foregoing right of indemnification shall not be
exclusive of other rights to which those seeking indemnification may be
entitled. The Corporation may maintain insurance, at its expense, to protect
itself and all officers and directors against fines, liabilities, costs and
expenses, whether or not the Corporation would have the legal power to indemnify
them directly against such liability.
Section 7.2. Advances. Costs, charges and expenses (including attorneys'
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fees) incurred by an officer or director in defending a civil or criminal suit,
action or proceeding shall be paid by the Corporation in advance of the final
disposition of the suit, action or proceeding, provided that the officer or
director shall repay all amounts advanced if it is ultimately determined that
the officer or director is not entitled to be indemnified by the Corporation as
authorized by this Article or as authorized by current or future legislation
(but, with respect to future legislation, only to the extent that it provides
conditions less burdensome than those previously provided).
Section 7.3. Savings Clause. If this Article or any portion of it is
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invalidated on any ground by a court of competent jurisdiction, the Corporation
nevertheless indemnifies each officer and director of the Corporation to the
fullest extent permitted by all portions of this Article that have not been
invalidated and to the fullest extent permitted by law.
I certify that the directors of the Corporation adopted and approved these
bylaws at a meeting duly held in Wilmington, Delaware effective as of June ,
2000.