Exhibit 3.2
CERTIFICATE OF OFFICER
The undersigned, the Secretary of Advance Auto Parts, Inc., a Delaware
corporation (the "Corporation"), hereby certifies that attached hereto as
Exhibit A is a true and correct copy of the By-Laws of the Corporation in effect
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as of the date hereof.
ADVANCE AUTO PARTS, INC.
By: _____________________________
____________________, Secretary
TABLE OF CONTENTS
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(continued)
Page
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BY-LAWS
OF
ADVANCE AUTO PARTS, INC.
TABLE OF CONTENTS
Page
I. Offices........................................................ 1
Section 1.01 Registered Office...................................... 1
Section 1.02 Other Offices.......................................... 1
II. Stockholders................................................... 1
Section 2.01 Place of Meetings...................................... 1
Section 2.02 Annual Meetings........................................ 1
Section 2.03 Special Meetings....................................... 2
Section 2.04 Notice of Meetings..................................... 2
Section 2.05 Waiver of Notice....................................... 2
Section 2.06 Quorum................................................. 2
Section 2.07 Adjourned Meetings..................................... 3
Section 2.08 Voting................................................. 3
Section 2.09 Proxies................................................ 3
Section 2.10 Fixing Date for Determination of Stockholders
of Record.............................................. 4
Section 2.11 Action by Written Consent of Stockholders.............. 5
Section 2.12 Stockholder List....................................... 5
Section 2.13 Voting Procedures and Inspectors of Elections.......... 6
III. Board of Directors............................................. 7
Section 3.01 General Powers; Organization........................... 7
Section 3.02 Number, Qualification and Term of Office............... 7
Section 3.03 Resignation and Removal; Vacancies..................... 7
Section 3.04 Regular Meetings....................................... 8
Section 3.05 Special Meetings....................................... 8
Section 3.06 Notice of Special Meetings............................. 8
Section 3.07 Waiver of Notice....................................... 8
Section 3.08 Quorum................................................. 8
Section 3.09 Committees of Directors................................ 8
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TABLE OF CONTENTS
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(continued)
Page
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Section 3.10 Conference Communications.................................... 9
Section 3.11 Action by Written Consent of Directors....................... 9
Section 3.12 Compensation................................................. 9
Section 3.13 Nomination Procedures........................................ 9
IV. Officers............................................................. 10
Section 4.01 Number....................................................... 10
Section 4.02 Election, Term of Office and Qualifications.................. 10
Section 4.03 Compensation................................................. 11
Section 4.04 Registration and Removal; Vacancies.......................... 11
Section 4.05 Chief Executive Officer...................................... 11
Section 4.06 Chairman of the Board........................................ 11
Section 4.07 President.................................................... 11
Section 4.08 Vice Presidents.............................................. 11
Section 4.09 Secretary.................................................... 12
Section 4.10 Treasurer.................................................... 12
Section 4.11 Authority and Other Duties................................... 12
V. Indemnification...................................................... 12
Section 5.01 Indemnification.............................................. 12
Section 5.02 Insurance.................................................... 13
Section 5.03 Expenses Payable in Advance.................................. 14
VI. Stock................................................................ 14
Section 6.01 Certificates for Stock....................................... 14
Section 6.02 Issuance of Stock............................................ 15
Section 6.03 Partly Paid Stock............................................ 15
Section 6.04 Registered Stockholders...................................... 15
Section 6.05 Transfer of Stock............................................ 15
Section 6.06 Lost, Stolen or Destroyed Certificates....................... 16
Section 6.07 Facsimile Signatures......................................... 16
VII. Miscellaneous........................................................ 16
Section 7.01 Dividends.................................................... 16
Section 7.02 Interested Directors and Officers............................ 16
Section 7.03 Voting Securities Held by the Corporation.................... 17
Section 7.04 Execution of Instruments..................................... 17
Section 7.05 Advances..................................................... 17
Section 7.06 Fiscal Year.................................................. 18
Section 7.07 Corporate Seal............................................... 18
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TABLE OF CONTENTS
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(continued)
Page
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Section 7.08 Form of Records.............................................. 18
Section 7.09 Power to Amend............................................... 18
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BY-LAWS
OF
ADVANCE AUTO PARTS, INC.
1. Offices.
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a. Registered Office. The Corporation shall maintain a
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registered office and registered agent within the State of Delaware at such
place as may be designated from time to time by the Board of Directors of the
Corporation.
b. Other Offices. The Corporation may also have offices at
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such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or as the business of the Corporation
may require.
2. Stockholders.
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a. Place of Meetings. Meetings of stockholders may be held
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at the principal executive office of the Corporation or at such other place as
may be designated by the Board of Directors, the Chief Executive Officer of the
Corporation or the Chairman of the Board of Directors.
b. Annual Meetings. An annual meeting of stockholders shall
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be held in each calendar year for the election of directors on such date and at
such time as shall be designated from time to time by the Board of Directors.
Any other proper business may be transacted at the annual meeting, provided that
such business is properly brought before the meeting. To be properly brought
before the meeting, business must be (a) specified in the notice of meeting (or
a 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 of Directors, or (c) properly brought before the meeting by a stockholder.
For business to be properly brought before the annual meeting by a stockholder,
written notice of such business must be delivered to, or mailed to and received
by, the Secretary of the Corporation at the principal executive offices of the
Corporation not less than forty-five (45) days or more than seventy-five (75)
days prior to the first anniversary of the date on which the Company first
mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than thirty (30) days prior to or delayed by more than thirty (30)
days after the anniversary of the preceding year's annual meeting, notice by the
stockholder to be timely must be so delivered not later that the close of
business on the later of (i) the 90th day prior to such annual meeting or (ii)
the 10th day following the day on which public announcement of the date of such
meeting is first made. In no event shall the public disclosure of an adjournment
of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting (a) 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, (b) the name and address, as
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they appear on the Corporation's books, of the stockholder proposing such
business and the name and address of the beneficial owner, if different than the
stockholder of record, on whose behalf the proposal is made, (c) the class and
number of shares of the Corporation that are beneficially owned by the
stockholder and such beneficial owner, if any, and (d) any material interest of
the stockholder or such beneficial owner in such business. Notwithstanding
anything in these By-Laws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this
Section. The Chief Executive Officer or other person presiding at the annual
meeting 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, and if he or she should so determine, he or she
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
c. Special Meetings. A special meeting of stockholders, for
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any purpose or purposes, may be called only by the Chief Executive Officer, the
Chairman of the Board of Directors, or the Board of Directors and may not be
called by any other person or persons. Business transacted at any special
meeting shall be limited to the purposes stated in the notice of the meeting.
d. Notice of Meetings. A written notice stating the place,
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date and hour of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be given not less then 10 nor
more than 60 days before the date of such meeting to each stockholder of record
of the Corporation entitled to vote at such meeting. Such notice shall be
personally delivered or mailed and, if mailed, shall be deemed to be given when
deposited in the mail, postage prepaid, addressed to the stockholder's mailing
address shown upon the records of the Corporation.
e. Waiver of Notice. Notice of any meeting of stockholders
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may be waived either before or after such meeting in a writing signed by the
person or persons entitled to the notice. Attendance of a person at a meeting
also 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.
f. Quorum. At each meeting of stockholders, except where
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otherwise provided by law or the Certificate of Incorporation or these By-Laws,
the holders of a majority of the outstanding capital stock entitled to vote at
the meeting, present in person or represented by proxy, shall constitute a
quorum. If a quorum is once present at the meeting, the stockholders may
continue to transact business until adjournment notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
g. Adjourned Meetings. The stockholders present at any
------------------
meeting may, by majority vote, adjourn the meeting from time to time to a later
day or hour or to another place. The stockholders entitled to vote at any
meeting at which a quorum is not present in person or represented by proxy may
so adjourn the meeting until a quorum shall be present or represented. If any
adjournment is for more than 30 days, or if after adjournment a new record date
is fixed
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for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. Otherwise, notice of
any adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken. At an adjourned
meeting at which a quorum is present or represented by proxy, any business may
be transacted which might have been transacted at the meeting as originally
convened.
h. Voting.
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i. Except as otherwise provided in the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall have one vote for each share of stock having voting power upon the matter
in question that is held by such stockholder and registered in the stockholder's
name on the books of the Corporation as of the applicable record date. Shares of
its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
ii. Elections of directors shall not be required to be
conducted by written ballot. The vote upon any other question before a meeting
need not be by written ballot, and need not be conducted by inspectors, unless
otherwise determined by the Board of Directors or the officer presiding at the
meeting or otherwise provided in Section 2.13. At all meetings of stockholders
for the election of directors a plurality of the votes cast shall be sufficient
to elect such directors. All other elections and questions at a meeting shall be
decided by a majority vote of the shares entitled to vote on the subject matter,
the holders of which are present in person or represented by proxy at the
meeting at the time of the vote, except where otherwise required by the laws of
Delaware, the Certificate of Incorporation or these By-Laws.
i. Proxies.
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i. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him or her by
proxy by an instrument executed in writing, provided that no such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. A stockholder may revoke any proxy that is not irrevocable
by attending the meeting and voting in person or by filing with the Secretary of
the Corporation an instrument in writing revoking the proxy or another duly
executed proxy bearing a later date. 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.
ii. A stockholder may sign or authorize the written
authorization by telegram, facsimile or other means of electronic transmission
setting forth or submitted with information sufficient to determine that the
stockholder authorized such transmission. If it is
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determined that such telegrams, facsimiles or other electronic transmissions are
valid, the inspectors or, if there are no inspectors, such other persons making
that determination shall specify the information upon which they relied. Any
copy, facsimile, telecommunication or other reproduction of the original writing
or transmission may be used in lieu of the original, provided that it is a
complete reproduction of the entire original.
iii. If any written authorization designates two or more
persons to act as proxies, a majority of such persons present at the meeting,
or, if only one shall be present, then that one, shall have and may exercise all
of the powers conferred by such written instrument upon all of the persons so
designated unless the instrument shall otherwise provide.
j. Fixing Date for Determination of Stockholders of Record.
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i. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date not more than
60 nor less than 10 days before the date of any such meeting. If no record date
is fixed, the record date for such purpose 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.
ii. For the purpose of determining the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date not more than 10 days after the date upon
which the resolution fixing the record date for such written action is adopted
by the Board of Directors. If no record date is fixed and prior action of the
Board of Directors with respect to the subject of such written action is not
required by the Delaware General Corporation Law, the record date for such
purpose shall be at the close of business on the first day on which a written
consent signed by a stockholder is delivered to the Corporation by delivery to
the registered office of the Corporation in Delaware (which shall be by hand or
by certified or registered mail, return receipt requested), to the principal
place of business of the Corporation, or to the officer or agent of the
Corporation having custody of the Corporation's minutes of stockholders'
meetings and proceedings. If no record date is fixed and prior action of the
Board of Directors with respect to the subject of such written action is
required by the Delaware General Corporation Law, the record date for such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
iii. For the purpose of determining the stockholders
entitled to receive any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action not specified
elsewhere in this Section 2.10, the Board of Directors may fix a record date not
more than 60 days before any such action. If no record date is so fixed, the
record date for such
4
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
iv. In no event shall any record date fixed by the
Board of Directors pursuant to this Section 2.10 precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors.
k. Action by Written Consent of Stockholders.
-----------------------------------------
i. Unless otherwise provided in 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, 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, and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware (which shall be by hand or by
certified or registered mail, return receipt requested), to the principal place
of business of the Corporation or to the officer or agent of the Corporation
having custody of the Corporation's minutes of stockholders' meetings and
proceedings. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ii. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by Section
2.11(a) to the Corporation, written consents signed by a sufficient number of
holders to take action are delivered to the Corporation as required by Section
2.11(a).
l. Stockholder List. The officer who has charge of the stock
----------------
ledger shall prepare and make, at least 10 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
10 days before 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. Upon
the willful neglect or refusal of the directors to produce such a list at any
meeting for the election of directors, they shall be ineligible for election to
any office at such meeting. 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.
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m. Voting Procedures and Inspectors of Elections. The
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following provisions shall apply at such time as the Corporation shall have a
class of voting stock that is (1) listed on a national securities exchange, (2)
authorized for quotation on an inter-dealer quotation system of a registered
national securities association, or (3) held of record by more than 2,000
stockholders.
i. The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of the stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability.
ii. The inspectors shall: (1) ascertain the number of
shares outstanding and the voting power of each; (2) determine the shares
represented at a meeting and the validity of proxies and ballots; (3) count all
votes and ballots; (4) determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination by the inspectors;
and (5) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
iii. The date and time of the opening and the closing of
the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting. No ballot, proxies or votes, nor any
revocations thereof or changes thereto, shall be accepted by the inspectors
after the closing of the polls.
iv. In determining the validity and counting of proxies
and ballots, the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information provided in
connection with an appointment of proxy by electronic transmission, ballots and
the regular books and records of the Corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to clause (b)(5) of this Section shall specify the
precise information considered by them including the person or persons from whom
they obtained the information, when the information was obtained, the means by
which the information was obtained and the basis for the inspectors' belief that
such information is accurate and reliable.
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3. Board of Directors.
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a. General Powers; Organization. The business of the
----------------------------
Corporation shall be managed by or under the direction of its Board of
Directors, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by the Delaware General Corporation Law or by
the Certificate of Incorporation or these By-Laws directed or required to be
exercised or done by the stockholders. The Board of Directors may annually elect
a Chairman of the Board from among its members who shall preside at its
meetings. The Secretary shall act as secretary of the meeting, but in his or her
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting. Any meeting of the Board of Directors may be held within or
without the State of Delaware.
b. Number, Qualification and Term of Office.
----------------------------------------
The number of directors constituting the Board of Directors shall be fixed from
time to time by resolution of the Board of Directors, but shall be not less than
nine (9) nor more than fourteen (14). Except as otherwise provided in the
Certificate of Incorporation and except as provided in Section 3.03 of these By-
Laws, the directors shall be elected at the annual meeting of the stockholders
and each director elected shall hold office until his or her successor is
elected and qualified. Directors need not be stockholders.
c. Resignation and Removal; Vacancies.
----------------------------------
i. Any director may resign at any time upon giving
written notice to the Corporation. Directors may be removed only in accordance
with the applicable provisions of the Delaware General Corporation Law and any
applicable provisions of the Certificate of Incorporation.
ii. Vacancies (whether existing or to take effect at a
future date), and newly created directorships resulting from any increase in the
authorized number of directors elected by all of the stockholders having the
right to vote as a single class, may be filled by a majority of the directors
then in office, in their sole discretion and whether or not constituting less
than a quorum, and the directors so chosen shall hold office until the next
election of directors and until their successors are duly elected and qualified,
or until their earlier resignation, retirement or removal.
d. Regular Meetings. Regular meetings of the Board of
----------------
Directors may be held without notice at such time and place as may be designated
from time to time by the Board of Directors.
e. Special Meetings. Special meetings of the Board of
----------------
Directors may be called from time to time by the Chairman of the Board of
Directors, if any, or the Chief Executive Officer, and upon request by any two
directors, shall be called by the Chairman of the Board of Directors or the
Chief Executive Officer.
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f. Notice of Special Meetings. Notice of each special meeting
--------------------------
of the Board of Directors stating the place, date and hour of the meeting shall
be given to each director by mail not less than 48 hours, or personally or by
telephone, telegram, facsimile or other electronic transmission not less than 48
hours before the date and hour of the meeting.
g. Waiver of Notice. Notice of any meeting of the Board of
----------------
Directors may be waived either before or after such meeting in a writing signed
by each director or directors to whom the notice was not duly given. Attendance
of a director at a meeting also shall constitute a waiver of notice of such
meeting, except when the director attends the 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.
h. Quorum. Unless otherwise specifically provided by the
------
Certificate of Incorporation or these By-Laws, at all meetings of the Board of
Directors a majority of the total number of directors shall constitute a quorum
for the transaction of business, and 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. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
i. Committees of Directors.
-----------------------
i. The Board of Directors may, by resolution adopted by a
majority of the total number of directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation and
to have such name as may be determined by the Board of Directors. 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 the committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members 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.
ii. Subject to subsection (c) of this Section 3.09 and to
the Delaware General Corporation Law, any committee may exercise the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation to the extent provided in the resolution designating
the committee, and may authorize the corporate seal, if any, to be affixed to
all papers that may require it.
iii. No committee shall have the power or authority to
amend the Certificate of Incorporation of the Corporation (except as permitted
by the Delaware General Corporation Law), to adopt an agreement of merger or
consolidation under Section 251 or 252 of the Delaware General Corporation Law,
to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, to recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or to amend the By-Laws of the Corporation; and, unless the resolution
establishing the committee or the
8
Certificate of Incorporation expressly so provides, no such committee shall have
the power or authority to declare a dividend, to authorize the issuance of stock
or to adopt a certificate of ownership and merger pursuant to Section 253 of the
Delaware General Corporation Law.
iv. Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required. Unless
the Board of Directors otherwise provides, each committee 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 these By-Laws.
j. Conference Communications. Directors may participate in any
-------------------------
meeting of the Board of Directors, or of any duly constituted committee thereof,
by means of a conference telephone or other comparable communications equipment
which all persons participating in the meeting can hear and communicate with
each other. For the purpose of establishing a quorum and taking any action at
the meeting, such directors participating pursuant to this Section 3.10 shall be
deemed present in person at the meeting.
k. Action by Written Consent of Directors. Any action required or
--------------------------------------
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if all directors or committee members
consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or the committee.
l. Compensation. The Board of Directors shall have the authority
------------
to fix the compensation of directors.
m. Nomination Procedures. Only persons who are nominated in
---------------------
accordance with the procedures set forth in this Section shall be eligible for
election as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors or by any stockholder of the Corporation
entitled to vote for the election of Directors at the meeting who complies with
the notice procedures set forth in this Section. Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Company not less than forty-five (45) or more
than seventy-five (75) days prior to the first anniversary of the date on which
the Company first mailed its proxy materials for the proceeding year's annual
meeting of stockholders; provided, however, that if the date of the annual
meeting is advanced more than thirty (30) days prior to or delayed by more than
thirty (30) days after the anniversary of the preceding year's annual meeting,
notice by the stockholder to be timely must be so delivered not later than the
close of business on the later of (i) the 90th day prior to such annual meeting
or (ii) the 10th day following the day on which public announcement of the date
of such meeting is first made. Such stockholder's notice shall set forth (a) as
to each person whom the stockholder proposes to nominate for election or re-
election as a Director, (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person,
9
(iii) the class and number of shares of the Corporation which are beneficially
owned by such person, and (iv) any other information relating to such person
that is required to be disclosed in solicitations of proxies for election of
Directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including without
limitation such persons' written consent to being named in the proxy statement
as a nominee and to serving as a Director if elected); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
Corporation's books, of such stockholder and (ii) the class and number of shares
of the Corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors any person nominated by the Board of Directors
for election as a Director shall furnish to the Secretary of the Corporation
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible for
election as a Director of the Corporation unless nominated in accordance with
the procedures set forth in this Section. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the By-Laws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
4. Officers.
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a. Number. The Board of Directors shall elect a Chief
------
Executive Officer, a Secretary and a Treasurer, and it may, if it so determines,
elect 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, one
or more Assistant Treasurers or any other officers or agents as the Board of
Directors may designate. Any person may hold two or more offices.
b. Election, Term of Office and Qualifications. The Board of
-------------------------------------------
Directors shall elect the officers of the corporation, who shall hold their
offices for such terms and shall exercise such powers and perform such duties
not inconsistent with these By-Laws as shall be determined from time to time by
the Board of Directors. All officers of the Corporation shall hold their offices
until their respective successors are elected and qualified, or until their
respective offices are eliminated by vote of the Board of Directors, or until
their earlier resignation, retirement or removal. Officers may be, but need not
be, directors.
c. Compensation. The salaries of the officers of the
------------
Corporation shall be fixed from time to time by the Board of Directors or by the
Chief Executive Officer if authorized by the Board of Directors.
d. Registration and Removal; Vacancies.
-----------------------------------
i. Any officer may resign at any time upon written
notice to the Corporation. Any such resignation, however, shall be without
prejudice to any contract rights of the Corporation as to such officer.
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ii. Any officer may be removed from office, with or
without cause, by a vote of the Board of Directors. Any such removal, however,
shall be without prejudice to any contract rights of such officer as to the
Corporation.
iii. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
e. Chief Executive Officer. The Board of Directors shall
-----------------------
designate the Chairman or the President as the Chief Executive Officer of the
Corporation. If there be no Chairman, the President shall be the Chief Executive
Officer. The Chief Executive Officer shall have the general powers and duties of
management and supervision usually vested in and imposed upon the Chief
Executive Officer of a corporation. The Chief Executive Officer shall preside at
all meetings of the stockholders.
f. Chairman of the Board. The Chairman, if one is elected,
---------------------
shall preside at all meetings of the Board of Directors. During the absence or
disability of the Chief Executive Officer, the Chairman shall exercise all the
powers and discharge all the duties of the Chief Executive.
g. President. The President, subject to the control of the
---------
Board of Directors and the Chairman (if the Chairman is the Chief Executive
Officer of the Corporation), shall have general supervision of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors and directives of the Chief Executive Officer are carried into effect.
h. Vice Presidents. During the absence or disability of the
---------------
Chairman and the President, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated by the
Board of Directors or, in the absence of any designation, in the order they were
first elected as Vice Presidents) shall perform the duties and have the
authority of the President.
i. Secretary. The Secretary (or in the absence of the
---------
Secretary, any Assistant Secretary or other person appointed by the Chairman to
serve as Acting Secretary) shall keep the minutes of the meetings of the
stockholders, the Board of Directors and any committees in a book to be kept for
that purpose. The Secretary shall maintain the stock ledger and prepare the
stockholder list as required by these By-Laws. The Secretary shall duly give
notice of all meetings of the stockholders, the Board of Directors and
committees of the Board, if any.
j. Treasurer. The Treasurer shall keep accurate accounts of
---------
all moneys of the Corporation received or disbursed. He or she shall deposit all
moneys, drafts and checks in the name of and to the credit of the Corporation in
such banks and depositories as the Board of Directors shall from time to time
designate. The Treasurer shall have power to endorse for deposit all notes,
checks and drafts received by the Corporation. The Treasurer shall render to the
Board of Directors or the Chief Executive Officer of the Corporation, whenever
required, an
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account of all his or her transactions as Treasurer and of the financial
condition of the Corporation.
k. Authority and Other Duties. All officers of the
--------------------------
Corporation shall be subject to the supervision and direction of the Board of
Directors and, in addition to the foregoing authority and duties, all officers
of the Corporation shall respectively have such authority and perform such other
duties in the management of the business of the Corporation as may be designated
from time to time by the Board of Directors. Unless expressly prohibited by a
resolution adopted by the Board of Directors, an officer elected or appointed by
the Board may, without the approval of the Board, delegate some or all of the
duties and powers of his or her office to other persons.
5. Indemnification.
---------------
a. Indemnification. The Corporation shall indemnify its
---------------
officers and directors, and former officers and directors, for such expenses and
liabilities, in such manner, under such circumstances, and to such extent, as
required or permitted by the Delaware General Corporation Law, as amended from
time to time. The determination of whether any such person is eligible for
indemnification under this Section 5.01 shall be made (1) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (3)
by the stockholders; provided, however, that if a Change in Control (as defined
below) has occurred and the person seeking indemnification so requests, a
determination of whether such person is eligible for indemnification under this
Section 5.01 shall be made in a written opinion rendered by independent legal
counsel chosen by the person seeking indemnification and not reasonably objected
to by the Board of Directors, and such determination shall be binding on the
Corporation. The fees and expenses of such independent counsel shall be paid by
the Corporation. For such purpose, (X) "Independent legal counsel" shall mean
legal counsel other than an attorney, or a firm having associated with it an
attorney, who has been retained by or has performed services for the Corporation
or the person seeking indemnification within the previous three years; and (Y) a
"Change in Control" shall be deemed to have occurred if:
(1) a majority of the directors of the Corporation
shall be persons other than persons (A) who were directors of the Corporation on
the date this Section was adopted, (B) for whose election proxies shall have
been solicited by the Board of Directors or (C) who are then serving as
directors appointed by the Board of Directors to fill vacancies on the Board of
Directors caused by newly-created directorships or the death or resignation (but
not removal) of a director;
(2) Thirty percent (30%) or more of the outstanding
shares of voting stock of the Corporation is acquired or beneficially owned (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, or
any successor rule thereto) by any person (other than the Corporation, a
subsidiary of the Corporation or the person seeking indemnification) or group of
persons, not including the person seeking indemnification, acting
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in concert;
(3) the stockholders of the Corporation approve a
definitive agreement or plan to (A) merge or consolidate the Corporation with or
into another corporation (other than (1) a merger or consolidation with a
subsidiary of the Corporation or (2) a merger in which the Corporation is the
surviving corporation and no outstanding voting stock of the Corporation (other
than fractional shares) held by stockholders immediately before the merger is
converted into cash, securities, or other property), (B) sell or otherwise
dispose of all or substantially all of the assets of the Corporation (in one
transaction or a series of transactions) or (C) liquidate or dissolve the
Corporation, unless a majority of the voting stock (or the voting equity
interest) of the surviving corporation or of any corporation (or other entity)
acquiring all or substantially all of the assets of the Corporation (in the case
of a merger, consolidation or disposition of assets) is, immediately following
the merger, consolidation or disposition of assets, beneficially owned by the
person seeking indemnification or a group of persons, including the person
seeking indemnification, acting in concert; or
(4) the Corporation enters into an agreement in
principle or a definitive agreement relating to an event described in clause
(i), (ii) or (iii) above which ultimately results in an event described therein,
or a tender or exchange offer or proxy contest is commenced which ultimately
results in an event described therein.
b. Insurance. The Corporation may purchase and maintain
---------
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, trustee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise, against any liability or expense asserted against or
incurred by such person in or arising from that capacity, or arising out of his
or her status as such, whether or not the Corporation would otherwise have the
power or the obligation to indemnify the person against such liability or
expense. The Company shall not be obligated under these By-Laws to make any
payment in connection with any claim made against any person if and to the
extent that such person has actually received payment therefor under any
insurance policy or policies.
c. Expenses Payable in Advance. Expenses (including
---------------------------
attorneys' fees and expenses) incurred by a director or officer, or a former
director or officer, in defending, investigating, preparing to defend, or being
or preparing to be a witness in, a threatened or pending action, suit,
proceeding or claim against him or her, whether civil or criminal, shall be paid
by the Corporation in advance of the final disposition of such action, suit,
proceeding or claim upon receipt by the Corporation of a request therefor and an
undertaking by or on behalf of the director or officer, or former director or
officer, to repay such amounts if it ultimately shall be determined that he or
she is not entitled to be indemnified by the Corporation.
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6. Stock.
-----
a. Certificates for Stock.
----------------------
i. The shares of stock of the Corporation shall be
either certificated or uncertificated.
ii. Every holder of duly issued certificated shares of
stock in the Corporation shall be entitled to a certificate, to be in such form
as shall be prescribed by the Board of Directors, certifying the number of
shares owned by him or her. The certificates for such shares shall he numbered
in the order in which they shall be issued and shall be signed in the name of
the Corporation by the Chairman, the President or a Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
and the seal of the Corporation, if any, shall be affixed thereto.
iii. A certificate representing shares of stock issued
by the Corporation shall, if the Corporation is authorized to issue shares of
more than one class or series, set forth upon the face or back of the
certificate, or shall state that the Corporation will furnish to any stockholder
upon request and without charge, a full statement of the powers, designations,
preferences and relative, participating, optional or other special rights of
each class or series of stock and the qualifications, limitations or
restrictions of such preferences and/or rights of each class or series
authorized to be issued.
iv. The Board of Directors may provide by resolution
that some or all shares of any or all classes and series of the stock of the
Corporation will be uncertificated. Any such resolution shall not apply to
shares represented by a certificate until the certificate is surrendered to the
Corporation.
b. Issuance of Stock. The Board of Directors is authorized
-----------------
to cause to be issued stock of the Corporation up to the full amount authorized
by the Certificate of Incorporation in such amounts and for such consideration
as may be determined by the Board of Directors. No shares shall be allotted
except in consideration of cash, labor, personal or real property (or leases
thereof), or a combination of the foregoing, or of an amount transferred from
surplus to stated capital upon a stock dividend. At the time of such allotment
of stock, the Board of Directors shall state its determination of the fair value
to the Corporation in monetary terms of any consideration other than cash for
which shares are allotted. The amount of consideration to be received in cash or
otherwise shall not be less than the par value of the shares so allotted. Stock
so issued shall be fully paid and nonassessable. Treasury shares may be disposed
of by the Corporation for such consideration as may be fixed by the Board of
Directors, or by the stockholders if the Certificate of Incorporation so
provides.
c. Partly Paid Stock. The Corporation may issue the whole or
-----------------
any part of its stock as partly paid and subject to call for the remainder of
the consideration to be paid therefor. The total amount of the consideration to
be paid for any partly paid stock and the amount paid
14
thereon shall be stated upon the face or back of each certificate issued to
represent any such partly paid stock (or, in the case of uncertificated stock,
on the books and records of the Corporation), the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
The Board of Directors may, from time to time, demand payment in respect of each
share of stock not fully paid, of such sum of money as the necessities of the
business may, in the judgment of the Board of Directors, require, not exceeding
in the whole the balance remaining unpaid on such stock, and such sum so
demanded shall be paid to the Corporation at such times and by such installments
as the directors shall direct.
d. Registered Stockholders. The Corporation shall be
-----------------------
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
e. Transfer of Stock. Transfers of stock on the books of the
-----------------
Corporation may be authorized only by the stockholder named in the certificate,
the stockholder's legal representative or the stockholder's duly authorized
attorney-in-fact and upon surrender of the certificate or the certificates for
such stock. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
No new certificate or certificates shall be issued in exchange for any existing
certificate until such certificate shall have been so canceled, except in cases
provided for in Section 6.06.
f. Lost, Stolen or Destroyed Certificates. Any stockholder
--------------------------------------
claiming a certificate for stock to be lost, stolen or destroyed shall make an
affidavit of that fact in such form as the Corporation may require and shall, if
the Corporation so requires, give the Corporation a bond of indemnity in form,
in an amount, and with one or more sureties satisfactory to the Corporation, to
indemnify the Corporation against any claims which may be made against it on
account of the alleged loss, theft or destruction of the certificate or issuance
of such new certificate. A new certificate may then be issued for the lost,
stolen or destroyed certificate.
g. Facsimile Signatures. Any or all of the signatures of the
--------------------
officers or agents of the Corporation on any stock certificate may be
facsimiles. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on any such certificate shall cease to
be such officer, transfer agent or registrar before such certificate is issued,
it nevertheless may be issued by the Corporation as though the person who signed
such certificate or whose facsimile signature or signatures had been placed
thereon were such officer, transfer agent or registrar at the date of issue.
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7. Miscellaneous.
-------------
a. Dividends.
---------
i. Subject to any restrictions contained in the
Certificate of Incorporation, the Board of Directors may declare and pay
dividends upon the shares of the Corporation's capital stock from the
Corporation's surplus, or if there be none, out of its net profits for the
current fiscal year and/or the preceding fiscal year. Dividends may be paid in
cash, in property or in shares of capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation. Upon the declaration of any
dividend on fully paid shares, the Corporation shall declare a dividend upon
partly paid shares of the same class, but only upon the basis of the percentage
of the consideration actually paid thereon.
ii. If the dividend is to be paid in shares of the
theretofore unissued capital stock of the Corporation, the Board of Directors
shall, by resolution, direct that there be designated as capital in respect of
such shares an amount which is not less than the aggregate par value of par
value shares being declared as a dividend and, in the case of shares without par
value being declared as a dividend, such amount as shall be determined by the
Board of Directors; provided, however, that no such designation as capital shall
be necessary if shares are being distributed by the Corporation pursuant to a
split-up or division of its stock.
b. Interested Directors and Officers. No contract or
---------------------------------
transaction 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 for that reason, or solely because an interested director or
officer is present at or participates in the meeting of the Board of Directors
or committee thereof which authorizes the contract or transaction, or solely
because his or her vote is counted for such purpose, if: (a) the material facts
as to his or her 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 of Directors or committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; (b)
the material facts as to his or her 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 (c) 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.
c. Voting Securities Held by the Corporation. Unless
-----------------------------------------
otherwise ordered by the Board of Directors, powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to
securities owned by the Corporation may be executed in the name of and on behalf
of the Corporation by the Chairman, Chief Executive Officer, President,
16
Executive Vice President or the Chief Financial Officer and any such officer
may, in the name of and on behalf of the Corporation, take all such action as
such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of other corporations in which the Corporation may hold
securities, and at any such meeting such officer shall possess and may exercise
any and all rights and powers incident to the ownership of such securities that
the Corporation might have possessed and exercised if it had been present. The
Board of Directors may from time to time confer like powers upon any other
person or persons.
d. Execution of Instruments.
------------------------
i. All deeds, mortgages, notes, bonds, checks,
contracts and other instruments pertaining to the business and affairs of the
Corporation shall be signed on behalf of the Corporation by the Chairman, Chief
Executive Officer, President, Executive Vice President, Chief Financial Officer
or any Vice President, or by such other person or persons as may be designated
from time to time by the Board of Directors.
ii. If a document must be executed by persons holding
different offices or functions and one person holds such offices or exercises
such functions, that person may execute the document in more than one capacity
if the document indicates each such capacity.
e. Advances. The Corporation may, without a vote of the
--------
directors, advance money to its directors, officers or employees to cover
expenses that can reasonably be anticipated to be incurred by them in the
performance of their duties and for which they would be entitled to
reimbursement in the absence of an advance.
f. Fiscal Year. The fiscal year end of the Corporation shall
-----------
be the last Sunday in December or such other date as may be fixed from time to
time by resolution of the Board of Directors.
g. Corporate Seal. The corporate seal, if one is adopted by
--------------
the Board of Directors, shall be circular in form and shall have inscribed
thereon the name of the Corporation, the word "Delaware" and the words
"Corporate Seal." The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise placed on any document
requiring it.
h. Form of Records. Any records maintained by the Corporation
---------------
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.
i. Power to Amend. These By-Laws may be altered, amended or
--------------
repealed or new By-Laws may be adopted by the stockholders or by the Board of
Directors, if such power
17
is conferred upon the Board of Directors by the Certificate of Incorporation, at
any annual meeting of the stockholders or of the Board of Directors, or at any
special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal these
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal these By-Laws except as otherwise provided in these By-
Laws or the Certificate of Incorporation.
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