Exhibit 3.8
BY-LAWS
OF
TMI HOLDINGS, INC.
(A DELAWARE CORPORATION)
TABLE OF CONTENTS
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ARTICLE I
OFFICES
Section 1. Registered Office.................................... 1
Section 2. Other Offices........................................ 1
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings............................ 1
Section 2. Annual Meetings....................................... 1
Section 3. Notice of Annual Meetings............................. 1
Section 4. Special Meetings...................................... 1
Section 5. Notice of Special Meetings............................ 2
Section 6. Quorum................................................ 2
Section 7. Organization.......................................... 2
Section 8. Voting................................................ 2
Section 9. List of Stockholders.................................. 3
Section 10. Inspectors of Votes................................... 4
Section 11. Actions Without a Meeting............................. 4
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers................................................ 4
Section 2. Number, Qualification, and Term of Office............. 4
Section 3. Resignations.......................................... 5
Section 4. Removal of Directors.................................. 5
Section 5. Vacancies............................................. 5
MEETINGS OF THE BOARD OF DIRECTORS
Section 6. Place of Meetings..................................... 5
Section 7. Annual Meetings....................................... 5
Section 8. Regular Meetings...................................... 6
Section 9. Special Meetings; Notice.............................. 6
Section 10. Quorum and Manner of Acting........................... 6
Section 11. Remuneration.......................................... 6
COMMITTEES OF DIRECTORS
Section 12. Executive Committee; How Constituted and Powers....... 7
Section 13. Organization.......................................... 7
Section 14. Meetings.............................................. 7
Section 15. Quorum and Manner of Acting........................... 8
Section 16. Other Committees...................................... 8
Section 17. Alternate Members of Committees....................... 8
Section 18. Minutes of Committees................................. 9
GENERAL
Section 19. Actions Without a Meeting............................. 9
Section 20. Presence at Meetings by Means of Communications
Equipment............................................. 9
ARTICLE IV
NOTICES
Section 1. Type of Notice........................................ 9
Section 2. Waiver of Notice...................................... 9
Section 3. When Notice Unnecessary............................... 10
ARTICLE V
OFFICERS
Section 1. Elected and Appointed Officers........................ 10
Section 2. Time of Election or Appointment....................... 10
Section 3. Salaries of Elected Officers.......................... 11
Section 4. Term.................................................. 11
Section 5. Duties of the Chairman of the Board................... 11
Section 6. Duties of the President............................... 11
Section 7. Duties of Vice Presidents............................. 11
Section 8. Duties of Assistant Vice Presidents................... 12
Section 9. Duties of the Secretary............................... 12
Section 10. Duties of Assistant Secretaries....................... 12
Section 11. Duties of the Treasurer............................... 13
Section 12. Duties of Assistant Treasurers........................ 13
Section 13. Duties of the Controller.............................. 13
Section 14. Duties of Assistant Controllers....................... 14
ARTICLE VI
INDEMNIFICATION
Section 1. Actions Other Than by or in the Right of
the Corporation....................................... 14
Section 2. Actions by or in the Right of the Corporation......... 14
Section 3. Determination of Right to Indemnification............. 15
Section 4. Right to Indemnification.............................. 15
Section 5. Prepaid Expenses...................................... 15
Section 6. Right to Indemnification upon Application;
Procedure upon Application............................ 15
Section 7. Other Rights and Remedies............................. 16
Section 8. Insurance............................................. 16
Section 9. Mergers............................................... 16
Section 10. Savings Provision..................................... 17
ARTICLE VII
CERTIFICATES REPRESENTING STOCK
Section 1. Right to Certificate.................................. 17
Section 2. Facsimile Signatures.................................. 18
Section 3. New Certificates...................................... 18
Section 4. Transfers............................................. 18
Section 5. Record Date........................................... 18
Section 6. Registered Stockholders............................... 19
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends............................................. 19
Section 2. Reserves.............................................. 19
Section 3. Annual Statement...................................... 20
Section 4. Checks................................................ 20
Section 5. Fiscal Year........................................... 20
Section 6. Corporate Seal........................................ 20
ARTICLE IX
AMENDMENTS................................................................ 20
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
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shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
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other place or places, within the State of Delaware, as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
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for the election of directors shall be held at such time and place, within the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. Meetings of stockholders for
any other purpose may be held at such time and place, within the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders, commencing
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with the year 1992, shall be held on such date and at such time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, at which meeting the stockholders shall elect by a plurality
vote a Board of Directors and transact such other business as may properly be
brought before the meeting.
Section 3. Notice of Annual Meetings. Written notice of the annual
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meeting, stating the place, date, and hour of the meeting, shall be given to
each stockholder of record entitled to vote at such meeting not less than 10 or
more than 60 days before the date of the meeting.
Section 4. Special Meetings. Special meetings of the stockholders for any
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purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called at any time by order of the Board of
Directors and shall be called by the Chairman of the Board, the President, or
the Secretary at the request in writing of the holders of not less than 10
percent (10%) of the voting power represented by all the shares issued,
outstanding and entitled to be voted at the proposed special meeting, unless the
Certificate of Incorporation provides for a different percentage, in which event
such provision of the Certificate of Incorporation shall govern. Such request
shall state the purpose or purposes of the proposed
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special meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 5. Notice of Special Meetings. Written notice of a special
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meeting, stating the place, date, and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given to each stockholder of
record entitled to vote at such meeting not less than 10 or more than 60 days
before the date of the meeting.
Section 6. Quorum. Except as otherwise provided by statute or the
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Certificate of Incorporation, the holders of stock having a majority of the
voting power of the stock entitled to be voted thereat, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at all meetings of the stockholders. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time without notice (other than
announcement at the meeting at which the adjournment is taken of the time and
place of the adjourned meeting) until a quorum shall be present or represented.
At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 7. Organization. At each meeting of the stockholders, the
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Chairman of the Board or the President, determined as provided in Article V of
these By-Laws, or if those officers shall be absent therefrom, another officer
of the Corporation chosen as chairman present in person or by proxy and entitled
to vote thereat, or if all the officers of the Corporation shall be absent
therefrom, a stockholder holding of record shares of stock of the Corporation so
chosen, shall act as chairman of the meeting and preside thereat. The Secretary,
or if he shall be absent from such meeting or shall be required pursuant to the
provisions of this Section 7 to act as chairman of such meeting, the person (who
shall be an Assistant Secretary, if an Assistant Secretary shall be present
thereat) whom the chairman of such meeting shall appoint, shall act as secretary
of such meeting and keep the minutes thereof.
Section 8. Voting. Except as otherwise provided in the Certificate of
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Incorporation, each stockholder shall, at each meeting of the stockholders, be
entitled to one vote in person or by proxy for each share of stock of the
Corporation held by him and registered in his name on the books of the
Corporation on the
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date fixed pursuant to the provisions of Section 5 of Article VII of these By-
Laws as the record date for the determination of stockholders who shall be
entitled to notice of and to vote at such meeting. 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 not be entitled to
vote. Any vote by stock of the Corporation may be given at any meeting of the
stockholders by the stockholder entitled thereto, in person or by his proxy
appointed by an instrument in writing subscribed by such stockholder or by his
attorney thereunto duly authorized and delivered to the Secretary of the
Corporation or to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date, unless said proxy
shall provide for a longer period. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and unless otherwise made
irrevocable by law. At all meetings of the stockholders all matters, except
where other provision is made by law, the Certificate of Incorporation, or these
By-Laws, shall be decided by the vote of a majority of the votes cast by the
stockholders present in person or by proxy and entitled to vote thereat, a
quorum being present. Unless demanded by a stockholder of the Corporation
present in person or by proxy at any meeting of the stockholders and entitled to
vote thereat, or so directed by the chairman of the meeting, the vote thereat on
any question other than the election or removal of directors need not be by
written ballot. Upon a demand of any such stockholder for a vote by written
ballot on any question or at the direction of such chairman that a vote by
written ballot be taken on any question, such vote shall be taken by written
ballot. On a vote by written ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state the
number of shares voted.
Section 9. List of Stockholders. It shall be the duty of the Secretary or
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other officer of the Corporation who shall have charge of its stock ledger,
either directly or through another officer of the Corporation designated by him
or through a transfer agent appointed by the Board of Directors, to prepare and
make, at least 10 days before every meeting of the stockholders, a complete list
of the stockholders entitled to vote thereat, 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 said meeting, either at
a place within the city where said meeting is to be held, which place shall be
specified in the notice of said meeting, or, if not so specified, at the place
where said meeting is to be held. The list shall also be produced and kept at
the time and place of said meeting during
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the whole time thereof, and may be inspected by any stockholder of record who
shall be present thereat. The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, such list or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 10. Inspectors of Votes. At each meeting of the stockholders, the
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chairman of such meeting may appoint two Inspectors of Votes to act thereat,
unless the Board of Directors shall have theretofore made such appointments.
Each Inspector of Votes so appointed shall first subscribe an oath or
affirmation faithfully to execute the duties of an Inspector of Votes at such
meeting with strict impartiality and according to the best of his ability. Such
Inspectors of Votes, if any, shall take charge of the ballots, if any, at such
meeting and, after the balloting thereat on any question, shall count the
ballots cast thereon and shall make a report in writing to the secretary of such
meeting of the results thereof. An Inspector of Votes need not be a stockholder
of the Corporation, and any officer of the Corporation may be an Inspector of
Votes on any question other than a vote for or against his election to any
position with the Corporation or on any other question in which he may be
directly interested.
Section 11. Actions Without a Meeting. Any action required to be taken at
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any annual or special meeting of stockholders of the Corporation, or any action
which may by taken at any annual or special meeting of 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 thereat were present and voted. 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.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be
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managed by its Board of Directors, which shall have and may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute, the Certificate of Incorporation, or these By-Laws directed or required
to be exercised or done by the stockholders.
Section 2. Number, Qualification, and Term of Office. The number of
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directors which shall constitute the whole Board of
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Directors shall not be less than one (1) or more than twelve (12). Within the
limits above specified, the number of directors which shall constitute the whole
Board of Directors shall be determined by resolution of the Board of Directors
or by the stockholders at any annual or special meeting or otherwise pursuant to
action of the stockholders. Directors need not be stockholders. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Sections 4 and 5 of this Article III, and each director elected shall hold
office until the annual meeting next after his election and until his successor
is duly elected and qualified, or until his death or retirement or until he
resigns or is removed in the manner hereinafter provided. Directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy and entitled to vote on the election of directors at any
annual or special meeting of stockholders. Such election shall be by written
ballot.
Section 3. Resignations. Any director may resign at any time by giving
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written notice of his resignation to the Corporation. Any such resignation shall
take effect at the time specified therein, or if the time when it shall become
effective shall not be specified therein, then it shall take effect immediately
upon its receipt by the Secretary. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 4. Removal of Directors. Any director may be removed, either with
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or without cause, at any time, by the affirmative vote by written ballot of a
majority in voting interest of the stockholders of record of the Corporation
entitled to vote, given at an annual meeting or at a special meeting of the
stockholders called for that purpose. The vacancy in the Board of Directors
caused by any such removal shall be filled by the stockholders at such meeting
or, if not so filled, by the Board of Directors as provided in Section 5 of this
Article III.
Section 5. Vacancies. Vacancies and newly created directorships resulting
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from any increase in the authorized number of directors may be filled by a
majority of the directors then in office though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the
annual meeting next after their election and until their successors are elected
and qualified, unless sooner displaced. If there are no directors in office,
then an election of directors may be held in the manner provided by statute.
MEETINGS OF THE BOARD OF DIRECTORS
Section 6. Place of Meetings. The Board of Directors of the Corporation
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may hold meetings, both regular and special,
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within the State of Delaware.
Section 7. Annual Meetings. The first meeting of each newly elected Board
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of Directors shall be held immediately following the annual meeting of
stockholders, 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. In the event such meeting is not held immediately following the
annual meeting of stockholders, the meeting may be held at such time and place
as shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all of the directors.
Section 8. Regular Meetings. Regular meetings of the Board of Directors
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may be held without notice at such time and at such place as shall from time to
time be determined by the Board of Directors.
Section 9. Special Meetings; Notice. Special meetings of the Board of
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Directors may be called by the Chairman of the Board, the President, or the
Secretary on 24 hours' notice to each director, either personally or by
telephone or by mail, telegraph, telex, cable, wireless, or other form of
recorded communication; special meetings shall be called by the Chairman of the
Board, the President, or the Secretary in like manner and on like notice on the
written request of two directors. Notice of any such meeting need not be given
to any director, however, if waived by him in writing or by telegraph, telex,
cable, wireless, or other form of recorded communication, or if he shall be
present at such meeting.
Section 10. Quorum and Manner of Acting. At all meetings of the Board of
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Directors, a majority of the directors at the time in office (but not less than
one-third of the whole Board of Directors) shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. 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.
Section 11. Remuneration. Unless otherwise expressly provided by resolution
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adopted by the Board of Directors, none of the directors shall, as such, receive
any stated remuneration for his services; but the Board of Directors may at any
time and from time to time by resolution provide that a specified sum shall be
paid to any director of the Corporation, either as his annual remuneration as
such director or member of any committee of the Board of Directors or as
remuneration for his attendance at each
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meeting of the Board of Directors or any such committee. The Board of Directors
may also likewise provide that the Corporation shall reimburse each director for
any expenses paid by him on account of his attendance at any meeting. Nothing in
this Section 11 shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving remuneration therefor.
COMMITTEES OF DIRECTORS
Section 12. Executive Committee; How Constituted and Powers. The Board of
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Directors may in its discretion, by resolution passed by a majority of the whole
Board of Directors, designate an Executive Committee consisting of one or more
of the directors of the Corporation. Subject to the provisions of Section 141 of
the General Corporation Law of the State of Delaware, the Certificate of
Incorporation, and these By-Laws, the Executive Committee shall have and may
exercise, when the Board of Directors is not in session, all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have the power to authorize the seal of
the Corporation to be affixed to all papers which may require it; but the
Executive Committee shall not have the power to fill vacancies in the Board of
Directors, the Executive Committee, or any other committee of directors or to
elect or approve officers of the Corporation. The Executive Committee shall have
the power and authority to authorize the issuance of common stock and grant and
authorize options and other rights with respect to such issuance. The Board of
Directors shall have the power at any time, by resolution passed by a majority
of the whole Board of Directors, to change the membership of the Executive
Committee, to fill all vacancies in it, or to dissolve it, either with or
without cause.
Section 13. Organization. The Chairman of the Executive Committee, to be
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selected by the Board of Directors, shall act as chairman at all meetings of the
Executive Committee and the Secretary shall act as secretary thereof. In case of
the absence from any meeting of the Executive Committee of the Chairman of the
Executive Committee or the Secretary, the Executive Committee may appoint a
chairman or secretary, as the case may be, of the meeting.
Section 14. Meetings. Regular meetings of the Executive Committee, of
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which no notice shall be necessary, may be held on such days and at such places,
within the State of Delaware, as shall be fixed by resolution adopted by a
majority of the Executive Committee and communicated in writing to all its
members. Special meetings of the Executive Committee shall be held whenever
called by the Chairman of the Executive Committee or a majority of the members
of the Executive Committee then in office. Notice of each special meeting of the
Executive
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Committee shall be given by mail, telegraph, telex, cable, wireless, or other
form of recorded communication or be delivered personally or by telephone to
each member of the Executive Committee not later than the day before the day on
which such meeting is to be held. Notice of any such meeting need not be given
to any member of the Executive Committee, however, if waived by him in writing
or by telegraph, telex, cable, wireless, or other form of recorded
communication, or if he shall be present at such meeting; and any meeting of the
Executive Committee shall be a legal meeting without any notice thereof having
been given, if all the members of the Executive Committee shall be present
thereat. Subject to the provisions of this Article III, the Executive Committee,
by resolution adopted by a majority of the whole Executive Committee, shall fix
its own rules of procedure.
Section 15. Quorum and Manner of Acting. A majority of the Executive
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Committee shall constitute a quorum for the transaction of business, and the act
of a majority of those present at a meeting thereof at which a quorum is present
shall be the act of the Executive Committee.
Section 16. Other Committees. The Board of Directors may, by resolution or
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resolutions passed by a majority of the whole Board of Directors, designate one
or more other committees consisting of one or more directors of the Corporation,
which, to the extent provided in said resolution or resolutions, shall have and
may exercise, subject to the provisions of Section 141 of the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, and
these By-Laws, the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and shall have the
power to authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have the power to fill vacancies in
the Board of Directors, the Executive Committee, or any other committee or in
their respective membership, to appoint or remove officers of the Corporation,
or to authorize the issuance of shares of the capital stock of the Corporation,
except that such a committee may, to the extent provided in said resolutions,
grant and authorize options and other rights with respect to the common stock of
the Corporation pursuant to and in accordance with any plan approved by the
Board of Directors. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors. A majority of all the members of any such committee may determine its
action and fix the time and place of its meetings and specify what notice
thereof, if any, shall be given, unless the Board of Directors shall otherwise
provide. The Board of Directors shall have power to change the members of any
such committee at any time to fill vacancies, and to discharge any such
committee, either with or without cause, at any time.
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Section 17. Alternate Members of Committees. The Board of Directors may
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designate one or more directors as alternate members of the Executive Committee
or any other committee, who may replace any absent or disqualified member at any
meeting of the committee, or if none be so appointed, 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.
Section 18. Minutes of Committees. Each committee shall keep regular
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minutes of its meetings and proceedings and report the same to the Board of
Directors at the next meeting thereof.
GENERAL
Section 19. Actions Without a Meeting. Unless otherwise restricted by the
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Certificate of Incorporation or these By-Laws, 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 of Directors 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 of Directors or
the committee.
Section 20. Presence at Meetings by Means of Communications Equipment.
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Members of the Board of Directors, or of any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting conducted pursuant to this Section 20 shall
constitute presence in person at such meeting.
ARTICLE IV
NOTICES
Section 1. Type of Notice. Whenever, under the provisions of any
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applicable statute, the Certificate of Incorporation, or these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, in
person or by mail, addressed to such director or stockholder, at his address as
it appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given in
any manner permitted by Article III hereof and shall be deemed to be given at
the time when first transmitted by the method of communication
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so permitted.
Section 2. Waiver of Notice. Whenever any notice is required to be given
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under the provisions of any applicable statute, the Certificate of
Incorporation, or these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto, and transmission of a waiver
of notice by a director or stockholder by mail, telegraph, telex, cable,
wireless, or other form of recorded communication may constitute such a waiver.
Section 3. When Notice Unnecessary. Whenever, under the provisions of the
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Act, the Certificate of Incorporation or these Bylaws, any notice is required to
be given to any stockholder, such notice need not be given to the stockholder
if:
(a) notice of two consecutive annual meetings and all notices of meetings
held during the period between those annual meetings, if any, or
(b) all (but in no event less than two) payments (if sent by first class
mail) of distributions or interest on securities during a 12-month
period,
have been mailed to that person, addressed at his address as shown on the
records of the Corporation, and have been returned undeliverable. Any action or
meeting taken or held without notice to such a person shall have the same force
and effect as if the notice had been duly given. If such a person delivers to
the Corporation a written notice setting forth his then current address, the
requirement that notice be given to that person shall be reinstated.
ARTICLE V
OFFICERS
Section 1. Elected and Appointed Officers. The elected officers of the
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Corporation shall be a President, one or more Vice Presidents, with or without
such descriptive titles as the Board of Directors shall deem appropriate, a
Secretary, and a Treasurer, and, if the Board of Directors so elects, a Chairman
of the Board (who shall be a director) and a Controller. The Board of Directors
or the Executive Committee of the Board of Directors by resolution also may
appoint one or more Assistant Vice Presidents, Assistant Treasurers, Assistant
Secretaries, Assistant Controllers, and such other officers and agents as from
time to time may appear to be necessary or advisable in the conduct of the
affairs of the Corporation.
Section 2. Time of Election or Appointment. The Board
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of Directors at its annual meeting shall elect or appoint, as the case may be,
the officers to fill the positions designated in or pursuant to Section 1 of
this Article V. Officers of the Corporation may also be elected or appointed, as
the case may be, at any other time.
Section 3. Salaries of Elected Officers. The salaries of all elected
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officers of the Corporation shall be fixed by the Board of Directors.
Section 4. Term. Each officer of the Corporation shall hold his office
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until his successor is duly elected or appointed and qualified or until his
earlier resignation or removal. Any officer may resign at any time upon written
notice to the Corporation. Any officer elected or appointed by the Board of
Directors or the Executive Committee may be removed at any time by the
affirmative vote of a majority of the whole Board of Directors. Any vacancy
occurring in any office of the Corporation by death, resignation, removal, or
otherwise may be filled by the Board of Directors or the appropriate committee
thereof.
Section 5. Duties of the Chairman of the Board. The Chairman of the
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Board, if one be elected, shall preside when present at all meetings of the
Board of Directors and, with the approval of the President, may preside at
meetings of the stockholders. He shall advise and counsel the President and
other officers of the Corporation, and shall exercise such powers and perform
such duties as shall be assigned to or required of him from time to time by the
Board of Directors.
Section 6. Duties of the President. The President shall be the chief
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executive officer of the Corporation and, subject to the provisions of these By-
Laws, shall have general supervision of the affairs of the Corporation and shall
have general and active control of all its business. He shall preside, when
present, at all meetings of stockholders, except when the Chairman of the Board
presides with the approval of the President and as may otherwise be provided by
statute, and, in the absence of any other person designated thereto by these By-
Laws, at all meetings of the Board of Directors. He shall see that all orders
and resolutions of the Board of Directors and the stockholders are carried into
effect. He shall have general authority to execute bonds, deeds, and contracts
in the name of the Corporation and affix the corporate seal thereto; to sign
stock certificates; to cause the employment or appointment of such employees and
agents of the Corporation as the proper conduct of operations may require, and
to fix their compensation, subject to the provisions of these By-Laws; to remove
or suspend any employee or agent who shall have been employed or appointed under
his authority or under authority of an officer subordinate to him; to suspend
for cause, pending final action by the authority
11
which shall have elected or appointed him, any officer subordinate to the
President; and, in general, to exercise all the powers and authority usually
appertaining to the chief executive officer of a corporation, except as
otherwise provided in these By-Laws.
Section 7. Duties of Vice Presidents. In the absence of the President
--------- -------------------------
or in the event of his inability or refusal to act, the Vice President (or in
the event there be more than one Vice President, the Vice Presidents in the
order designated, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President and, when so acting,
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall perform such other duties and have such
other powers as the Board of Directors or the President may from time to time
prescribe.
Section 8. Duties of Assistant Vice Presidents. In the absence of a
--------- -----------------------------------
Vice President or in the event of his inability or refusal to act, the Assistant
Vice President (or in the event there shall be more than one, the Assistant Vice
Presidents in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of their appointment) shall perform the
duties and exercise the powers of that Vice President, and shall perform such
other duties and have such other powers as the Board of Directors, the
President, or the Vice President under whose supervision he is appointed may
from time to time prescribe.
Section 9. Duties of the Secretary. The Secretary shall attend all
--------- -----------------------
meetings of the Board of Directors and all meetings of the stockholders and
record all the proceedings of the meetings of the Corporation and of the Board
of Directors in a book to be kept for that purpose and shall perform like duties
for the Executive Committee or other standing committees when required. He shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or the President, under whose
supervision he shall be. He shall have custody of the corporate seal of the
Corporation, and he, or an Assistant Secretary, shall have authority to affix
the same to any instrument requiring it, and when so affixed, it may be attested
by his signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature. The Secretary
shall keep and account for all books, documents, papers, and records of the
Corporation, except those for which some other officer or agent is properly
accountable. He shall have authority to sign stock certificates and shall
generally perform all the duties usually appertaining to the office of the
secretary of a corporation.
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Section 10. Duties of Assistant Secretaries. In the absence of the
---------- -------------------------------
Secretary or in the event of his inability or refusal to act, the Assistant
Secretary (or, if there shall be more than one, the Assistant Secretaries in the
order designated by the Board of Directors, or in the absence of any
designation, then in the order of their appointment) shall perform the duties
and exercise the powers of the Secretary and shall perform such other duties and
have such other powers as the Board of Directors, the President, or the
Secretary may from time to time prescribe.
Section 11. Duties of the Treasurer. The Treasurer shall have the
---------- -----------------------
custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and the Board of Directors, at its regular
meetings or when the Board of Directors so requires, 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 (which
shall be renewed every six years) in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement, or removal from office, of all books,
papers, vouchers, money, and other property of whatever kind in his possession
or under his control belonging to the Corporation. The Treasurer shall be under
the supervision of the Vice President in charge of finance, if one is so
designated, and he shall perform such other duties as may be prescribed by the
Board of Directors, the President, or any such Vice President in charge of
finance.
Section 12. Duties of Assistant Treasurers. The Assistant Treasurer or
---------- ------------------------------
Assistant Treasurers shall assist the Treasurer, and in the absence of the
Treasurer or in the event of his inability or refusal to act, the Assistant
Treasurer (or in the event there shall be more than one, the Assistant
Treasurers in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of their appointment) shall perform the
duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors, the President, or
the Treasurer may from time to time prescribe.
Section 13. Duties of the Controller. The Controller, if one is
---------- ------------------------
appointed, shall have supervision of the accounting
13
practices of the Corporation and shall prescribe the duties and powers of any
other accounting personnel of the Corporation. He shall cause to be maintained
an adequate system of financial control through a program of budgets and
interpretive reports. He shall initiate and enforce measures and procedures
whereby the business of the Corporation shall be conducted with the maximum
efficiency and economy. If required, he shall prepare a monthly report covering
the operating results of the Corporation. The Controller shall be under the
supervision of the Vice President in charge of finance, if one is so designated,
and he shall perform such other duties as may be prescribed by the Board of
Directors, the President, or any such Vice President in charge of finance.
Section 14. Duties of Assistant Controllers. The Assistant Controller
---------- -------------------------------
or Assistant Controllers shall assist the Controller, and in the absence of the
Controller or in the event of his inability or refusal to act, the Assistant
Controller (or, if there shall be more than one, the Assistant Controllers in
the order designated by the Board of Directors, or in the absence of any
designation, then in the order of their appointment) shall perform the duties
and exercise the powers of the Controller and perform such other duties and have
such other powers as the Board of Directors, the President, or the Controller
may from time to time prescribe.
ARTICLE VI
INDEMNIFICATION
Section 1. Actions Other Than by or in the Right of the Corporation.
--------- --------------------------------------------------------
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the Corporation), by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, or other enterprise (all of such
persons being hereafter referred to in this Article as a "Corporate
Functionary"), against expenses (including attorneys' fees), judgments, fines,
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to
14
the best interests of the Corporation or, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
Section 2. Actions by or in the Right of the Corporation. The Corporation
--------- ---------------------------------------------
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he is or was a Corporate Functionary against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such person shall have been adjudged to be
liable to the Corporation, unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Determination of Right to Indemnification. Any indemnification
--------- -----------------------------------------
under Sections 1 or 2 of this Article VI (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Corporate Functionary is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Sections 1 or 2 of this Article VI. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit, or proceeding, or (ii) if such a quorum
is not obtainable, or, even if obtainable if a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
Section 4. Right to Indemnification. Notwithstanding the other provisions
--------- ------------------------
of this Article VI, to the extent that a Corporate Functionary has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in Sections 1 or 2 of this Article VI (including the
dismissal of a proceeding without prejudice or the settlement of a proceeding
without admission of liability), or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 5. Prepaid Expenses. Expenses incurred in defending a civil or
--------- ----------------
criminal action, suit, or proceeding shall
15
be paid by the Corporation in advance of the final disposition of such action,
suit, or proceeding, upon receipt of an undertaking by or on behalf of the
Corporate Functionary to repay such amount if it shall ultimately be determined
he is not entitled to be indemnified by the Corporation as authorized in this
Article VI.
Section 6. Right to Indemnification upon Application; Procedure upon
--------- ---------------------------------------------------------
Application. Any indemnification under Sections 2, 3 and 4, or any advance
- -----------
under Section 5, of this Article VI shall be made promptly upon, and in any
event within 60 days after, the written request of the Corporate Functionary,
unless with respect to applications under Sections 2, 3 or 5 of this Article VI,
a determination is reasonably and promptly made by the Board of Directors by
majority vote of a quorum consisting of disinterested directors that such
Corporate Functionary acted in a manner set forth in such Sections as to justify
the Corporation in not indemnifying or making an advance of expenses to the
Corporate Functionary. If no quorum of disinterested directors is obtainable,
the Board of Directors shall promptly direct that independent legal counsel
shall decide whether the Corporate Functionary acted in a manner set forth in
such Sections as to justify the Corporation's not indemnifying or making an
advance of expenses to the Corporate Functionary. The right to indemnification
or advance of expenses granted by this Article VI shall be enforceable by the
Corporate Functionary in any court of competent jurisdiction if the Board of
Directors or independent legal counsel denies his claim, in whole or in part, or
if no disposition of such claim is made within 60 days. The expenses of the
Corporate Functionary incurred in connection with successfully establishing his
right to indemnification, in whole or in part, in any such proceeding shall also
be indemnified by the Corporation.
Section 7. Other Rights and Remedies. The indemnification and advancement
--------- -------------------------
of expenses or provided by or granted pursuant to this Article VI shall not be
deemed exclusive of any other rights to which any person seeking indemnification
and advancement of expenses or may be entitled under any by-law, agreement, vote
of stockholders or disinterested directors, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office, and shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Corporate Functionary and shall
inure to the benefit of the heirs, executors, and administrators of such a
person. Any repeal or modification of these by-laws or relevant provisions of
the Delaware General Corporation Law and other applicable law, if any, shall not
affect any then existing rights of a Corporate Functionary to indemnification or
advancement of expenses.
Section 8. Insurance. Upon resolution passed by the Board of Directors,
--------- ---------
the Corporation may purchase and maintain
16
insurance on behalf of any person who is or was a director, officer, employee,
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article VI.
Section 9. Mergers. For purposes of this Article VI, references to
--------- -------
"the Corporation" shall include, in addition to the resulting or surviving
corporation, constituent corporations (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, or agents, so that any person who is or was a
director, officer, employee, or agent of such constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise shall stand in the same position under the provisions
of this Article VI with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
Section 10. Savings Provision. If this Article VI or any portion hereof
---------- -----------------
shall be invalidated on any ground by a court of competent jurisdiction, the
Corporation shall nevertheless indemnify each Corporate Functionary as to
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement with respect to any action, suit, proceeding, or investigation,
whether civil, criminal, or administrative, including a grand jury proceeding or
action or suit brought by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article VI that shall not have been
invalidated.
ARTICLE VII
CERTIFICATES REPRESENTING STOCK
Section 1. Right to Certificate. 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 of the Board, the President, or a Vice President
and by the Secretary or an Assistant Secretary of the Corporation, certifying
the number of shares owned by him in the Corporation. If the Corporation shall
be authorized to issue more than one class of stock or more than one series of
any class, the powers, designations, preferences, and relative, participating,
optional, or other special rights of each class of stock or series thereof
17
and the qualifications, limitations, or restrictions of such preferences or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock; provided, that, except as otherwise provided in Section 202 of the
General Corporation Law of the State of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences, and relative,
participating, optional, or other special rights of each class of stock or
series thereof and the qualifications, limitations, or restrictions of such
preferences or rights.
Section 2. Facsimile Signatures. Any of or all the signatures on the
--------- --------------------
certificate may be 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 3. New Certificates. The Board of Directors may direct a new
--------- ----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation and alleged to have been
lost, stolen, or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen, or destroyed
or the issuance of such new certificate.
Section 4. Transfers. 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, subject to any proper
restrictions on transfer, to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Section 5. Record Date. The Board of Directors may fix in advance a
--------- -----------
date, not preceding the date on which the resolution
18
fixing the record date is adopted, and
(i) not more than 60 days nor less than 10 days preceding the date of
any meeting of stockholders, as a record date for the determination
of the stockholders entitled to notice of, and to vote at, any such
meeting and any adjournment thereof,
(ii) not more than 10 days after the date on which the resolution fixing
the record date is adopted, as a record date in connection with
obtaining a consent of the stockholders in writing to corporate
action without a meeting, or
(iii) not more than 60 days before the date for payment of any dividend or
distribution, or the date for the allotment of rights, or the date
when any change, or conversion or exchange of capital stock shall go
into effect, or the date on which any other lawful action shall be
taken, as the record date for determining the stockholders entitled
to receive payment of any such dividend or distribution, or to
receive any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock
or other lawful action of the corporation,
and in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, any such meeting and any adjournment thereof (provided, however,
that the Board of Directors may fix a new record date for an adjourned meeting),
or to give such consent, or to receive payment of such dividend or distribution,
or to receive such allotment of rights, or to exercise such rights, as the case
may be, notwithstanding any transfer of any stock on the books of the
corporation after any such record date fixed as aforesaid.
Section 6. 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
provided by the laws of the State of Delaware.
ARTICLE VIII
GENERAL PROVISIONS
19
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
--------- ---------
if any, subject to the provisions of the Certificate of Incorporation, may be
declared by the Board of Directors (but not any committee thereof) at any
regular meeting, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Reserves. Before payment of any dividend, there may be set
--------- --------
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion,
thinks 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 of Directors shall think conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
Section 3. Annual Statement. The Board of Directors shall present at each
--------- ----------------
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
Section 4. Checks. All checks or demands for money and promissory notes of
--------- ------
the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time prescribe.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be
--------- -----------
determined by the Board of Directors.
Section 6. Corporate Seal. The corporate seal shall have inscribed thereon
--------- --------------
the name of the Corporation, the year of its organization, and the word
"Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed, affixed, reproduced, or otherwise.
ARTICLE IX
AMENDMENTS
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 at any regular meeting
of the stockholders or the Board of Directors or at any special meeting of the
stockholders or 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.
20
CERTIFICATION
I, Edward J. Lysen, Secretary of the Corporation, hereby certify that the
foregoing is a true, accurate and complete copy of the Bylaws of TMI Holdings,
Inc. adopted by its Board of Directors as of October 17, 1991.
_______________________________
Edward J. Lysen, Secretary
21