EXHIBIT 3.28
BY-LAWS
OF
DOMINION TEXTILE (USA) INC.
As Amended Through November 26, 1985
(A Delaware Corporation)
ARTICLE 1
DEFINITIONS
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As used in these By-Laws, unless the context otherwise requires, the term:
1.1 "ASSISTANT SECRETARY" means an Assistant Secretary of the Corporation.
1.2 "ASSISTANT TREASURER" means an Assistant Treasurer of the Corporation.
1.3 "BOARD" means the Board of Directors of the Corporation.
1.4 "BY-LAWS" means the initial by-laws of the Corporation, as amended
from time to time.
1.5 "CERTIFICATE OF INCORPORATION" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "CORPORATION" means Dominion Textile (USA) Inc.
1.7 "DIRECTORS" means directors of the Corporation.
1.8 "GENERAL CORPORATION LAW" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.9 "OFFICE OF THE CORPORATION" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "PRESIDENT" means the President of the Corporation.
1.11 "SECRETARY" means the Secretary of the Corporation.
1.12 "STOCKHOLDERS" means stockholders of the Corporation.
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1.13 "TOTAL NUMBER OF DIRECTORS" means the total number of directors which
the Corporation would have if there were no vacancies,
1.14 "TREASURER" means the Treasurer of the Corporation.
1.15 "VICE PRESIDENT" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
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2.1 Place of Meetings. Every meeting of the stockholders shall be held at
the office of the Corporation or at such other place within or without the State
of Delaware as shall be specified or fixed in the notice of such meeting or in
the waiver of notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually for
the election of directors and the transaction of other business at such hour and
on such business day in August or September as may be determined by the Board
and designated in the notice of meeting.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
meeting of stockholders for the election of directors and the transaction of
other business is not held within the months specified in Section 2.2, the Board
shall call a meeting of stockholders for the election of directors and the
transaction of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other than
a special meeting for the election of directors), unless otherwise prescribed by
statute, may be called at any time by the Board or by the President or by the
Secretary. At any special meeting of stockholders only such business may be
transacted which is related to the purpose or purposes of such meeting set forth
in the notice thereof given pursuant to Section 2.6 of the By-laws or in any
waiver of notice thereof given pursuant to Section 2.7 of the By-laws.
2.5 Fixing Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting or for the purpose of determining stockholders entitled to
receive payment of any dividend or the allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
date as the record date for any such determination of stockholders. Such date
shall not be more than sixty nor less than ten days before the date of such
meeting nor more than sixty days prior to any other action. If no such record
date is fixed:
2.5.1 The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the dose 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;
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2.5.2 The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board is necessary, shall be the day on which the first written
consent is expressed;
2.5.3 The record date for determining stockholders for any purpose
other than that specified in Section 2.5.1 and 2.5.2 shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
When a determination of stockholders entitled to notice of or to vote at
any meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in
Sections 2.5 and 2.7 of the By-Laws, whenever under the General Corporation Law
or the Certificate of Incorporation or the By-laws, stockholders are required or
permitted to take any action at a meeting, written notice shall be given stating
the place, date and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. A copy of the notice
of any meeting shall be given, personally or by mail, not less than ten nor more
than sixty days before the date of the meeting, to each stockholder entitled to
notice of or to vote at such meeting. If mailed, such notice shall be deemed to
be given when deposited in the United States mail, with postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice required by this section has
been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted at the
meeting as originally called. If, however, the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
2.7 Waivers of Notice. Whenever a notice is required to be given to any
stockholder under any provision of the General Corporation Law or of the
Certificate of Incorporation or the By-laws, a written waiver thereof, signed by
the stockholder entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the mating
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or cause
to be prepared and made, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting arranged in
alphabetical order, and showing the address of each
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stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of 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.
2.9 Quorum of Stockholders; Adjournment. The holders of one-third of the
shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The. holders of a majority of the shares of stock present in
person or represented by proxy at any meeting of stockholders, including an
adjourned meeting, whether or not a quorum is present, may adjourn such meeting
to another time and place.
2.10 Voting Proxies. Unless otherwise provided in the Certificate of
Incorporation every stockholder of record shall be entitled at every meeting of
stockholders to one vote for each share of capital stock standing in his name on
the record of stockholders determined in accordance with Section 2.5 of the By-
laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
sections 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in treating
the persons in whose names shares of capital stock stand on the record of
stockholders as owners thereof for all purposes. At any meeting of stockholders
(at which a quorum was present to organize the meeting), all matters, except as
otherwise provided by law or by the Certificate of Incorporation or the By-laws,
shall be decided by a majority of the votes cast at such meeting by the holders
of shares present in person or represented by proxy and entitled to vote
thereon, whether or not a quorum is present when the vote is taken. All
elections of directors shall be by written ballot unless otherwise provided in
the certificate of Incorporation. In voting an any other question on which a
vote by ballot is required by law or is demanded by any stockholder entitled to
vote, the voting shall be by ballot. Each ballot shall be signed by the
stockholder voting or by his proxy, and shall state the number of shares voted.
On any other questions, the voting may be viva voce. Every stockholder entitled
to vote at a meeting of stockholders or to express consent or dissent without a
meeting may authorize another person or persons to act for him by proxy. The
validity and enforceability of any proxy shall be determined in accordance with
Section 212 of the General Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Stockholders. The
Board, in advance of any meeting of stockholders, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at such meeting may, and on the request
of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. In case any person appointed fails to appear or act, the vacancy
may be filled by appointment made by the Board in advance of the meeting or at
the meeting by the person presiding
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thereat. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspector or inspectors shall determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting, the existence
of a quorum, the validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the person
presiding at the meeting or any stockholder entitled to vote thereat, the
inspector or inspectors shall make a report in writing of any challenge,
question or matter determined by him or them and execute a certificate of any
fact found by him or them. Any report or certificate made by the inspectors
shall be prima facie evidence of the facts stated and of the vote as certified
by him or them.
2.12 Organization. At every meeting of stockholders, the President, or in
the absence of the President a Vice President, and in case more than one Vice
President shall be present, that Vice President designated by the Board (or in
the absence of any such designation, the most senior Vice President based on
age, present), shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, shall act as secretary of the meeting.
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.13 Order of Business. The order of business at all meetings of
stockholders shall be determined by the chairman of the meeting but the order of
business to be followed at any meeting at which a quorum is present may be
changed by a majority of the votes cast at such meeting by the holders of shares
of capital stock present in person or represented by proxy and entitled to vote
at the meeting.
2.14 Written Consent of Stockholders Without a Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required by the General
Corporation Law to be taken at any annual or special meeting of stockholders of
the Corporation, or any action which may be taken at any annual or special
meeting of such 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. 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.
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ARTICLE 3
DIRECTORS
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3.1 General Powers. Except as otherwise provided in the Certificate Of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations not inconsistent with the Certificate of Incorporation or the By-
laws or applicable laws, as it may deem proper for the conduct of its meetings
and the of the Corporation, In addition to the powers expressly conferred by the
By-laws, the Board may exercise all powers and perform all acts which are not
required, by the By-laws or the Certificate of Incorporation or by law, to be
exercised and performed by the stockholders.
3.2 Number, Qualification; Term of Office. The Board shall consist of one
or more members. The total number of directors shall be fixed initially by the
incorporator and may thereafter be changed from time to time by action of the
stockholders or of the Board. Directors need not be stockholders. Each director
shill hold office until his successor is elected and qualified or until his
earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law or by
the Certificate of Incorporation, be elected by a plurality of the votes cast at
a meeting of stockholders by the holders of shares entitled to vote in the
election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided
in the Certificate of Incorporation, newly created directorships resulting from
an increase in the number of directors and vacancies occurring in the Board for
any reason, including the removal of directors without cause, may be filled by
vote of a majority of the directors then in office, although less than a quorum,
or by a sole remaining director, at any meeting of the Board or may be elected
by a plurality of the votes cast by the holders of shares of capital stock
entitled to vote in the election at a special meeting of stockholders called for
that purpose. A director elected to fill a vacancy shall be elected to hold
office until his successor is elected and qualified, or until his earlier death,
resignation or removal.
3.5 Resignations. Any director may resign at any time by written notice to
the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified, the acceptance of such resignation
shall not be necessary to make it effective.
3.6 Removal of Directors. Except as otherwise provided by law, any
or all of the directors may be removed (i) for cause, by vote of the
stockholders or by action of the Board, and (ii) without cause, by vote of the
stockholders.
3.7 Compensation. Each director, in consideration of his service as
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving
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as such shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable expenses incurred by
him in the performance of his duties. Nothing in this section contained shall
preclude any director from serving the Corporation or its subsidiaries in any
other capacity and receiving proper compensation therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board,
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the
annual meeting of stockholders for the election of directors is hold, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.11 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the same place on the
first business day thereafter which is not a Saturday, Sunday or legal holiday.
3.11 Special Meetings. Special Meetings of the Board shall be held whenever
called by the President or the Secretary or by any two or more directors. Notice
of each special meeting of the Board shall, if mailed, be addressed to each
director at the address designated by him for that purpose or, if none is
designated, at his last known address at least two days before the date on which
the meeting is to be held or such notice shall be sent to each director at such
address by telegraph, cable or wireless, or be delivered to him personally, not
later than the day before the date on which such meeting is to be held. Every
such notice shall state the time and place of the meeting but need not state the
purpose of the meeting, except to the extent required by law. If mailed, each
notice shall be deemed given when de desited, with postage thereon prepaid, in a
post office or official depository under the exclusive care and custody of the
United States post office department. Such mailing shall be by first class mail.
3.12 Adjourned Meetings. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be transacted at any
adjourned meeting that might have been transacted at the meeting as originally
called.
3.13 Waiver of Notice. Whenever notice is required to be given to
any director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate
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of Incorporation or By-laws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting except when the person attends a
meeting for the express' purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the President of
the Corporation, or in the absence of the President, a chairman chosen by the
majority of the directors present, shall preside. The Secretary shall act as
secretary at each meeting of the Board. In cast the Secretary shall be absent
from any meeting of the Board, an Assistant Secretary shall perform the duties
of secretary at such meeting; and in the absence from any such meeting of the
Secretary and Assistant Secretaries, the person presiding at the meeting may
appoint any person to act as secretary of the meeting.
3.15 Quorum of Directors. One-third of the total number of directors
shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board.
3.16 Action by the Board. All corporate action taken by the Board or
any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
section 3.16 shall constitute presence in person at such meeting, Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar communications equipment) at the time of the
vote, if a quorum is present at such time, shall be the act of the Board.
ARTICLE 4
COMMITTEES OF THE BOARD
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The Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of.,the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting whether or not he or
they constitute a quorum, may unanimously
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appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member. Any such committee, to the extent provided
In the resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
ARTICLE 5
OFFICERS
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5.1 Officers. The Board may elect from its own number a Chairman of
the Board and shall elect a President a Secretary and a Treasurer, and may elect
or appoint such Vice Presidents who may or may not be directors, and such other
officers and agents as in the opinion of the Board the business of the
Corporation requires, The Board may designate one or more Vice Presidents as
Executive Vice Presidents, and may use descriptive words or phrases to designate
the standing, seniority or area of special competence of the Vice Presidents
elected or appointed by it. Each officer shall hold his office until his
successor is elected and qualified or until his earlier death, resignation or
removal in the manner provided in Section 5.2 of the By-laws. Any two or more
offices may be hold by the same person except that the offices of President and
Secretary may not be held by the same person. The Board may require any officer
to give a bond or other security for the faithful performance of his duties, in
such amount and with such sureties as the ' Board may determine. All officers
as between themselves and the Corporation shall have such authority and perform
such duties in the management of the Corporation as may be provided in the By-
laws or as the Board may from time to time determine or as may be delegated by
the President.
5.2 Removal of Officers. Any officer or agent elected or appointed by the
Board may be removed by the vote of a majority of the whole Board with or
without cause. Any officer, agent, or employee, other than officers appointed by
the Board, shall hold office at the discretion of the officer appointing them.
The removal of an officer without cause shall be without prejudice to his
contract rights, if any. The election or appointment of an officer shall not of
itself create contract rights.
5.3 Resignations. Any officer may resign at any time in writing by
notifying the Board or the, President or the Secretary. The resignation shall
take effect at the date of receipt of the notice or at such later time as is
specified in the notice, and, unless otherwise specified, acceptance of the
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights, if any, of the
Corporation.
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5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in the By-laws for the regular
election or appointment to that office. In its discretion the Board, by the vote
of a majority of the whole Board, may leave unfilled for any period as it may
fix by resolution any office except those of President, Secretary and Treasurer.
5.5 Chairman. The Chairman of the Board, if one be elected, shall
preside at all meetings of the Board and shall have and perform such other
duties as from time to time may be assigned to him by the Board or the By-laws.
5.6 President. The President shall be the chief executive and
administrative officer of the Corporation. The President shall, if present,
preside at all meetings of the stockholders and, in the absence or non-election
of the Chairman, at all meetings of the Board. He shall exercise the duties
which customarily pertain to the office of President and shall have general and
active supervision over the property, business and affairs of the Corporation
and over its several officers, subject, however, to the control of the Board and
of any duly authorized committee of directors. He may appoint officers, agents,
or employees other than those appointed by the Board. He may, with the Secretary
or Treasurer or an Assistant Secretary or an Assistant Treasurer, sip
certificates for shares of capital stock of the Corporation. He may sign and
execute in the name of the Corporation powers of attorney, deeds, mortgages,
bonds, contracts, and other instruments, except in the cases where the signing
and execution shall be expressly delegated by the Board or by the By-laws to
some other officer or agent of the Corporation, or shall be required by law
otherwise to be signed or executed, he shall cause the seal to be affixed to any
instrument requiring it and when so affixed the seal shall be attested by the
signature of the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer and, in general, the President shall perform duties as from
time to time the Board or the By-laws may assign to him.
5.7 Vice Presidents. The Vice Presidents shall have such powers and
perform such duties as the Board or the President may assign to them in the
absence or disability of the President, the Executive Vice Presidents in such
order as the Board may designate or, in the absence of such designation, in
order of seniority based on age, and in the absence of any Executive Vice
Presidents, the Vice President designated by the Board or the President shall
perform the duties and exercise the powers of the President, subject to all
restrictions on the President. A Vice President may sign and execute contracts
and other obligations pertaining to the regular course of his duties. Any Vice
President may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board or by the By-laws to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or executed; and
shall perform all other duties as the Board or the President from time to time
may assign to him.
5.8 Secretary. The Secretary, if present, shall act as secretary of all
meetings of the stockholders and of the Board and shall keep the minutes thereof
in the proper book or books to be provided for that purpose; he shall cause
notice to be given of meetings of stockholders, the Board
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and of any committee which the Board appoints. He may, with the President or a
Vice-President, sign certificates for shares of capital stock of the
Corporation; he shall have custody of the corporate seal and may seal with the
seal of the Corporation, or a facsimile thereof, all certificates for shares of
capital stock of the Corporation and all documents the execution of which on
behalf of the Corporation under its corporate seal is authorized in accordance
with the provisions of the bylaws; he shall have charge of the stock ledger and
also of the other books, records and papers of the Corporation relating to its
organization and management as a Corporation, which shall at all reasonable
times be open to the examination of any director, and shall see that the
reports, statements and other documents required by law are properly kept and
filed; and shall, in general, perform all the duties incident to the office of
Secretary and all such other duties as the Board or the President from time to
time may assign to him.
5.9 Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds, securities and notes of the Corporation; receive,
and give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation In such
banks, trust companies or other depositories as shall be selected in accordance
with these By-1aws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositories of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the By-
laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation; have the right to require, from time to
time, reports or statements giving such information as he may desire with
respect to any and giving all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board, respectively, shall require him so to do,
an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors upon application at the office of the
Corporation where such books and records are kept; and, in general, perform all
the duties incident to the office of Treasurer and all other duties as the Board
or the President from time to time may assign to him; and he may sign with the
President or a Vice President certificates for shares of capital stock of the
Corporation.
5.10 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
5.11 Comptroller. The Comptroller shall be responsible to the Board
and the President for all financial control and internal audit of the
Corporation and its subsidiaries. He shall perform such other duties as the
Board or the President shall assign to him and shall be responsible to a
designated Vice President only for the routine administrative matters pertaining
to the duties of his office.
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5.12 General Counsel. The General counsel shall advise and represent
the Corporation in all legal matters and proceedings and shall act as counsel to
the Board and any Committee of the Board. The General Counsel may sip and
execute pleadings, powers of attorney pertaining to legal matters, and any other
contracts and documents in the regular course of his duties.
5.13 Exercise of Rights as Stockholders. Unless otherwise ordered by
the Board, the President or a Vice President duly authorized by the President
for such purpose, shall have full power and authority on behalf of the
Corporation to attend and to vote at any meeting of stockholders of any
corporation in which this Corporation may hold stock, and may exercise on behalf
of this Corporation any and all of the rights and powers incident to the
ownership of such stock at any such meeting, and shall have power and authority
to execute and deliver proxies and consents on behalf of this Corporation in
connection with the exercise by this Corporation of the rights and powers
incident to the ownership of such stock. The Board, from time to time, may
confer like powers upon any other person or persons.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 Execution of Contracts. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute and satisfy any instrument, and any such authority may
be general or confined to specific instances, or otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
authorized by the By-laws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and when authorized by the Board
so to do may pledge and hypothecate or transfer any securities or other property
of the Corporation as security for any such loans or advances. Such authority
conferred by the Board may be general or confined to specific instances or
otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money cut of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositories as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board.
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ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 Certificates Representing Shares. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, and may be sealed with the seal of the Corporation or
a facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles, if the certificate is countersigned by a transfer agent or registrar
other than the Corporation itself or its employee. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may, unless
otherwise ordered by the Board, be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar as the
date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "cancelled" with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be. deemed the owner thereof to receive dividends, to vote as
such owner for all other purposes as respects the Corporation. No transfer of
shares of capital stock shall be valid as against the Corporation, its
stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
such transfer shall have been entered on the books of the Corporation by an
entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder
of any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or mutilation and to advertise.
such fact in such manner as the Board may require, and to give the Corporation
and its transfer agents and registrars, or such of them as the Board may
require, a bond in such form, in such sums and with
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such surety or sureties as the Board may direct, to indemnify the Corporation
and its transfer agents and registrars against any claim that may be made
against any of them on account of the continued existence of any such
certificate so alleged to have been lost, destroyed, stolen or mutilated and
against any expense in connection with such claim.
7.5 Regulations. The Board may make such rules and regulations as It may
deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of Its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, If
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing; such
capital stock, a restriction, even though permitted by Section 202 of the
General Corporation Law. shall be ineffective except against a person with
actual knowledge of the restriction. A restriction on the transfer or
registration of transfer of capital stock of the Corporation may be Imposed
either by the Certificate of Incorporation or by an agreement among any number
of stockholders or among such stockholders and the Corporation. No restriction
so imposed shall be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital stock are parties
to an agreement or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate
of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other distributions on
the outstanding shares of capital stock in such amounts and at such time or
times as, in its discretion, the condition of the affairs of the Corporation
shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of capital stock of the
Corporation, or purchase warrants therefor, in accordance with law, or any of
its bonds, debentures, notes, scrip or other securities or evidences of
indebtedness;
7.7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper, as a
reserve fund to meet contingencies, or for. equalizing dividends or for the
purpose of maintaining or increasing the property or business of the
Corporation, or for any purpose it may think conducive to the best interests of
the Corporation.
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ARTICLE 8
INDEMNIFICATION
---------------
8.1 Indemnification of Officers and Directors. 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, by reason of the fact that he
is or was a director or an officer of the Corporation, 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 to the fullest extent and in the manner set forth in and permitted by
the General Corporation Law, and any other applicable law, as from time to time
in affect. Such right of indemnification shall not be deemed exclusive of any
other rights to which such director or officer may be entitled apart from the
foregoing provisions. The foregoing provisions of this Section 8.1 shall be
deemed to be a contract between the Corporation and each director and officer
who serves in such capacity at any time while this Article 8 and the relevant
provisions of the General Corporation Law and other applicable law, if any, are
in effect, and any repeal or modification thereof shall not affect any rights or
obligations then existing with respect to any state of facts then or theretofore
ousting or any action, suit or proceeding theretofore or thereafter brought or
threatened based in whole or in part upon any such state of facts.
8.2 Indemnification of Other Persons. The Corporation may 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 by reason of the fact that he is or
was an employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
8.3 Insurance. The Corporation shall have power to 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 or 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 sections 8.1 and
8.2 of the By-laws or under Section 145 of the General Corporation Law or any
other provision of law.
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ARTICLE 9
BOOKS AND RECORDS
-----------------
9.1 Books and Records. The Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of the
stockholders, the Board and any committee of the Board. The Corporation shall
keep at the office designated in the Certificate of Incorporation or at the
office of the transfer agent or registrar of the Corporation in Delaware, a
record containing the names and addresses of all stockholders, the number and
class of shares held by each and the dates when they respectively became the
owners of record thereof.
9.2 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 written
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.
9.3 Inspection of Books and Records. Except as otherwise provided by law,
the Board shall determine from time to time whether, and if allowed, when and
under what conditions and regulations, the accounts, books, minutes and other
records of the Corporation, or any of them, shall be open to the inspection of
the stockholders.
ARTICLE 10
SEAL
----
The Board may adopt a corporate seal which shall be in the form of a circle
and shall bear the full name of the Corporation, the year of its incorporation
and the word "Delaware".
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be determined and may be changed,
by resolution of the Board.
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ARTICLE 12
VOTING OF SHARES HELD
---------------------
Unless otherwise provided by resolution of the Board, the President may,
from time to time, appoint one or more attorneys or agents of the Corporation,
in the name and on behalf of the Corporation, to cast the votes which the
Corporation may be entitled to cast as stockholder or otherwise in any other
corporation, any of whose shares or securities may be held by the Corporation,
at meetings of the holders of stock or other securities of such other
corporation, or to consent in writing to any action by any such other and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed on behalf
of the Corporation and under its corporate seal, or otherwise, such written
proxies, consents, waivers or other instruments as he may deem necessary or
proper in the premises; or the President may himself attend any meeting of the
holders of the stock or other securities of any such other corporation and
thereat vote or exercise any or all other powers of the Corporation as the
holder of such stock or other securities of such other corporation.
ARTICLE 13
AMENDMENTS
----------
The By-laws may be altered, amended, supplemented or repealed, or new By-
laws may be adopted, by vote of the holders of the shares entitled to vote in
the election of directors. The By-laws may be altered, amended, supplemented
repealed, or new By-laws may be adopted, by the Board, provided that the vote of
a majority of the entire Board shall be required to change the number of
authorized directors. Any By-laws adopted, altered, amended, or supplemented by
the Board may be altered, amended, or supplemented or repealed by the
stockholders entitled to vote thereon.
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