BY-LAWS
OF
COLLINS & AIKMAN GROUP, INC.
A Delaware Corporation
BY-LAWS
OF
COLLINS & AIKMAN GROUP, INC.
(a Delaware corporation)
(as amended through May 1, 1994)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered
office of the Corporation in the State of Delaware shall be
32 Lockerman Square, Suite L-100, City of Dover, County of
Kent. The name of the registered agent is The Prentice-Hall
Corporation System, Inc.
SECTION 2. Other Offices. The Corporation may
also have offices at other places, either within or without
the State of Delaware, as the Board of Directors may from
time to time determine or as the business of the Corporation
may require.
ARTICLE II
Meeting of Stockholders
SECTION 1. Annual Meetings. The annual meeting
of the stockholders for the election of directors and for
the transaction of such other business as may properly come
before the meeting shall be held at such place (within or
without the State of Delaware), date and hour as shall be
designated in the notice thereof.
SECTION 2. Special Meetings. Special meetings of
the stockholders for any purpose or purposes may be called
only by the Board of Directors, pursuant to a resolution
adopted by a majority of the directors then in office, to be
held at such place (within or without the State of
Delaware), date and hour as shall be designated in the
notice thereof.
SECTION 3. Notice of Meeting. Except as
otherwise expressly required by law, notice of each meeting
of the stockholders shall be given not less than 10 or more
than 60 calendar days before the date of the meeting to each
stockholder entitled to vote at such meeting by mailing such
notice, postage prepaid, directed to each stockholder at the
address of such stockholder as appears on the records of the
Corporation. Every such notice shall state the place, date
and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is
called. Except as provided in the next immediate sentence
or as otherwise expressly required by law, notice of any
adjourned meeting of the stockholders need not be given if
the time and place thereof are announced at the meeting at
which the adjournment is taken. If the adjournment is for
more than 30 calendar days, or if after the adjournment a
new record date if fixed for the adjourned meeting, notice
of the adjourned meeting shall be given to each stockholder
entitled to vote at such adjourned meeting.
A written waiver of notice, signed by a
stockholder entitled to notice, whether signed before or
after the time set for a given meeting, shall be deemed
equivalent to notice of such meeting. Attendance of a
stockholder in person or by proxy at a stockholders' meeting
shall constitute a waiver of notice to such stockholder of
such meeting, except when such stockholder attends the
meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened.
SECTION 4. List of Stockholders. It shall be the
duty of the Secretary or other officer of the Corporation
who shall have charge of its stock ledger to prepare and
make, at least 10 calendar days before every meeting of the
stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of
share 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 calendar days prior to
the meeting either at a place specified in the notice of the
meeting within the city where the meeting is to be held or,
if not so specified, at the place where the meeting is to be
held. Such 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.
SECTION 5. Quorum. At each meeting of the
stockholders, expect as otherwise expressly required by law,
stockholders holding a majority of the votes entitled to be
cast by the stockholders entitled to vote at the meeting
(which if any vote is to be taken by classes shall mean the
holders of a majority of the votes entitled to be cast by
the stockholder of each such class) shall be present in
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person or by proxy in order to constitute a quorum for the
transaction of business. In the absence of a quorum at any
such meeting or any adjournment or adjournments thereof, a
majority in voting interest of those present in person or by
proxy and entitled to vote thereat or, in the absence
therefrom of all the stockholders, any officer entitled to
preside at, or to act as secretary of, such meeting may
reschedule such meeting from time to time until stockholders
holding the number of votes requisite for a quorum shall be
present in person or by proxy. At any such rescheduled
meeting at which a quorum may be present, any business may
be transacted that might have been transacted at the meeting
as originally called.
SECTION 6. Organization. At each meeting of the
stockholders, one of the following shall act as chairman of
the meeting and preside thereat, in the following order of
precedence:
(a) the Co-Chairman of the Board designated by
the Board to chair such meeting;
(b) if there is no Co-Chairman of the Board or if
both Co-Chairman of the Board shall be absent from such
meeting, the President;
(c) if the Co-Chairman of the Board and the
President shall be absent from such meeting, any other
officer or director of the Corporation designated by
the Board or the Executive Committee to act a chairman
of such meeting and to preside thereat; or
(f) a stockholder of record of the Corporation
who shall be chosen chairman or such meeting by a
majority in voting interest of the stockholders present
in person or by proxy and entitled to vote thereat.
The Secretary or, if the Secretary shall be presiding over
the meeting in accordance with the provisions of this
Section or if he shall be absent from 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 7. Order of Business. The order of
business at each meeting of the stockholder shall be
determined by the chairman of such meeting, but such order
of business may be changed by a majority in voting interest
of those present in person or by proxy at such meeting and
entitled to vote thereat.
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SECTION 8. Voting. At each meeting of the
stockholders, each holder of voting stock of the Corporation
shall, except as otherwise provided in these By-laws or
required by law or the Restated Certificate of Incorpora-
tion, 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 date
fixed pursuant to the provisions of Section 4 of Article
VIII of these By-laws as the record date for the determin-
ation of stockholders who shall be entitled to receive
notice of an to vote at such meeting.
Shares of its own stock belonging to the Corpora-
tion or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other
corporation is held by the Corporation, shall neither be
entitled to vote nor be counted for quorum purposes. Any
vote of stock of the Corporation may be given at any meeting
of thereon either in person or by proxy appointed by an
instrument in writing delivered to the Secretary or an
Assistant Secretary of the Corporation or the secretary of
the meeting. The attendance at any meeting of a stockholder
who may theretofore have given a proxy shall not have the
effect of revoking the same unless he shall in writing so
notify the secretary of the meeting prior to the voting of
the proxy. At all meetings of the stockholders, all
matters, except as otherwise provided by law or in these By-
laws, shall be decided by the vote of a majority of the
votes cast by stockholders present in person or by proxy and
entitled to vote thereat, a quorum being present. Except as
otherwise expressly required by law, the vote at any meeting
of the stockholders on any question need not be by ballot,
unless so directed by the chairman of the meeting. On a
vote by 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.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
SECTION 2. Number and Term of Office. The Board
of Directors shall consist of six members, but the number of
members constituting the Board of Directors may be increased
or decreased from time to time by resolution adopted by a
majority of the whole Board. Directors need not be
stockholders or citizens or residents of the United States
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of America. Each of the directors of the Corporation shall
hold office until his term expires and until his successor
is elected and qualified or until his earlier death or until
his earlier resignation or removal in the manner hereinafter
provided.
SECTION 3. Election. At each meeting of the
stockholders for the election of directors at which a quorum
is present, the persons receiving the greatest number of
votes, up to the number of directors to be elected, shall be
the directors.
SECTION 4. Resignation, Removal and Vacancies.
Any director may resign at any time by giving written notice
of his resignation to either Co-Chairman of the Board, the
President or the Secretary of 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, when accepted by action of the Board.
Except as aforesaid, the acceptance of such resignation
shall not be necessary to make it effective.
A director may be removed, either with or without
cause, at any time by a vote of a majority in voting
interest of the stockholders.
Any vacancy or newly created directorship
occurring on the Board for any reason may be filled by a
majority of the directors then in office, through less than
quorum, or by a sole remaining director. The director
elected to fill such vacancy or newly created directorship
shall hold office for the unexpired term in respect of which
such vacancy occurred or such newly created directorship was
created.
SECTION 5. Meetings. (a) Annual Meetings. As
soon as practicable after each annual election of directors,
the Board shall meet for the purpose of organization and the
transaction of other business.
(b) Regular Meetings. Regular meetings of the
Board shall be held at such times and places as the Board
shall from time to time determine.
(c) Special Meetings. Special meetings of the
Board shall be held whenever called by either Co-Chairman of
the Board or the President or a majority of the directors at
the time in office. Any and all business may be transacted
at a special meeting that may be transacted at a regular
meeting of the Board.
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(d) Place of Meeting. The Board may hold its
meetings at such place or places within or without the State
of Delaware as the Board may from time to time by resolution
determine or as shall be designated in the respective
notices or waivers of notice thereof.
(e) Notice of Meetings. Notices of regular
meetings of the Board or of any adjourned meeting need not
be given.
Notices of special meetings of the Board, or of
any meeting of any committee of the Board that has not been
fixed in advance as to time and place by such committee,
shall be mailed by the Secretary or any Assistant Secretary
to each director or member or such committee, addressed to
him at his residence or usual place of business, so as to be
received at least one calendar day before the day on which
such meeting is to be held, or shall be sent to him by
telegraph, cable or other form of recorded communication or
be delivered personally or by telephone not later than one
calendar day before the day on which such meeting is to be
held. Such notice shall include the time and place of such
meeting. However, notice of any such meeting need not be
given to any director or member of any committee if such
notice is waived by him in writing or by telegraph, cable or
other form of recorded communication, whether before or
after such meeting shall be held, or if he shall be present
at such meeting.
(f) Quorum and Manner of Acting. Except as
otherwise provided by law, the Restated Certificate of
Incorporation or these By-laws, one-half of the total number
of directors shall be present in person at any meeting of
the Board in order to constitute a quorum for the
transaction of business at such meeting. In each case the
vote of a majority of those directors present at any such
meeting at which a quorum is present shall be necessary for
the passage of any resolution or any act of the Board,
except as otherwise expressly required by law or these By-
laws. In the absence of a quorum for any such meeting, a
majority of the directors present thereat may adjourn such
meeting from time to time until a quorum shall be present
thereat.
(g) Action by Communication Equipment. The
directors, or the members of any committee of the Board, may
participate in a meeting of the Board, or of 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 such participation shall
constitute presence in person at such meeting.
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(h) Action by Consent. 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 such writing is filed with
the minutes of the proceedings of the Board or such
committee.
(i) Organization. At each meeting of the Board,
one of the following shall act as chairman of the meeting
and preside thereat, in the following order of precedence:
(a) the Co-Chairman of the Board chosen by a majority of the
directors present thereat; (b) the President; or (c) any
director chosen by a majority of the directors present
thereat. The Secretary or, in case of his absence, any
person (who shall be an Assistant Secretary, if an Assistant
Secretary shall be present thereat) whom the chairman shall
appoint, shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 6. Compensation. Directors, as such,
shall not receive any stated salary for their services, but
by resolution of the Board may receive a fixed sum and
expenses incurred in performing the functions of director
and member of any committee of the Board. Nothing herein
contained shall be construed so as to preclude any director
from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
Committees
SECTION 1. (a) Designation and Membership.
The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees consisting of
such number of directors, not less than one, as the Board
shall appoint. 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. Vacancies occurring on any committee for any
reason may be filled by the Board at any time. Any member
of any committee shall be subject to removal, with or
without cause, at any time by the Board or by a majority in
voting interest of the stockholders.
(b) Functions and Powers. Any such committee,
subject to any limitations prescribed by the Board, shall
possess and may exercise, during the intervals between
meetings of the Board, all the powers and authority of the
Board in the management of the business and affairs of the
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Corporation, and may authorize the seal of the Corporation
to be affixed to all papers that may require it; provided,
however, that no such committee shall have such power or
authority in reference to amending the Certificate of
Incorporation of the Corporation (except that a committee
may, to the extent authorized in resolutions providing for
the issuance of shares of stock adopted by the Board of
Directors, fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any
other class or classes or any other series of the same or
any other class or classes of stock of the Corporation),
adopting an agreement of merger or consolidation under
Section 251 or Section 252 of the General Corporation Law of
the State of Delaware, 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, filling vacancies on the Board,
changing the membership or filling vacancies on any
committee of the Board or amending these By-laws. No such
committee shall have the power and authority to declare
dividends, to authorize the issuance of stock of the
Corporation or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation
Law of the State of Delaware unless such power and authority
shall be expressly delegated to it by a resolution passed by
a majority of the whole Board.
(c) Meetings, Quorum and Manner of Acting. Each
committee shall meet at such times and as often as may be
deemed necessary and expedient and at such places as shall
be determined by such committee. A majority of each such
committee shall constitute a quorum, and the vote of a
majority of those members of each such committee present at
any meeting thereof at which a quorum is present shall be
necessary for the passage of any resolution or act of such
committee. The Board may designate a chairman for each such
committee, who shall preside at meetings thereof, and a vice
chairman, who shall preside at such meetings in the absence
of the chairman.
ARTICLE V
Officers
SECTION 1. Election, Appointment and Term of
Office. The officers of the Corporation shall be two Co-
Chairmen of the Board, a President, who shall also be the
Chief Executive Officer, such number of Vice Chairmen of the
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Board and Vice Presidents (including any Executive, Senior
and/or First Vice Presidents) as the Board may determine
from time to time, a Treasurer, one or more Assistant
Treasurers, if any, as the Board may determine, a Secretary
and one or more Assistant Secretaries, if any, as the Board
may determine. Any two or more offices may be held by the
same person. Officers need not be stockholders of the
Corporation or citizens or residents of the United States of
America. The Co-Chairmen of the Board, any Vice Chairman of
the Board and the President shall be elected by the Board
from among its members at its annual meeting, and all other
officers may be elected by the Board or the Executive
Committee, and each such officer shall hold office until the
next annual meeting of the Board or the Executive Committee,
as the case may be, and until his successor is elected or
until his earlier death or until his earlier resignation or
removal in the manner hereinafter provided.
The Board or the Executive Committee may elect or
appoint such other officers as it deems necessary, including
a Corporate General Counsel and one or more Associate or
Assistant Corporate General Counsels, Assistant Vice
Presidents, Assistant Treasurers and Assistant Secretaries.
Each such officer shall have such authority and shall
perform such duties as may be provided herein or as the
Board or Executive Committee may prescribe.
If additional officers are elected or appointed
during the year, each of them shall hold office until the
next annual meeting of the Board or Executive Committee at
which officers are regularly elected or appointed and until
his successor is elected or appointed or until his earlier
death or until his earlier resignation or removal in the
manner hereinafter provided.
SECTION 2. Resignation, Removal and Vacancies.
Any officer may resign at any time by giving written notice
to the President or the Secretary of the Corporation, and
such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall
not be specified therein, when accepted by action of the
Board or the Executive Committee. Except as aforesaid, the
acceptance of such resignation shall not be necessary to
make it effective.
All officers and agents elected or appointed by
the Board or Executive Committee shall be subject to removal
at any time by the Board or the Executive Committee, as the
case may be, with or without cause.
A vacancy in any office may be filled for the
unexpired portion of the term in the same manner as provided
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for election or appointment to such office.
SECTION 3. Duties and Functions. (a) Co-Chairmen
of the Board. The Co-Chairman of the Board, who shall be a
member thereof, selected by the directors present thereat,
shall preside at all meetings of the Board and of the
stockholders at which one of them shall be present and each
shall perform such other duties and exercise such powers as
may from time to time be prescribed by the Board of
Directors or the Executive Committee.
(b) Vice Chairmen of the Board. Each Vice
Chairman of the Board shall be a member thereof and shall
have such powers and duties as may from time to time be
prescribed by the Board or the Executive Committee.
(c) President. The President shall be a member
of the Board, shall be the Chief Executive Officer of the
Corporation and shall perform such duties and exercise such
powers as are incident to the office of chief executive, and
shall perform such other duties and exercise such other
powers as may from time to time be prescribed by the Board
or the Executive Committee.
(d) Vice Presidents. Each Vice president shall
have such powers and duties as shall be prescribed by the
Board or the Executive Committee.
(e) Treasurer. The Treasurer shall have charge
and custody of, and be responsible for, all funds and
securities of the Corporation and shall deposit all such
funds to the credit of the Corporation in such banks, trust
companies or other depositaries as shall be selected in
accordance with the provisions of these By-laws; he shall
disburse the funds of the Corporation as may be ordered by
the Board or the Executive Committee, making proper vouchers
for such disbursement; and, in general, he shall perform all
the duties incident to the office or Treasurer and such
other duties as from time to time may be assigned to him by
the Board, the Executive Committee or the President. To
such extent as the Board or Executive Committee shall deem
proper, the duties of the Treasurer may be performed by one
or more assistants, to be appointed by the Board or
Executive Committee.
(f) Secretary. The Secretary shall keep the
records of all meetings of the stockholders and of the Board
or committee of the Board. He shall affix the seal of the
Corporation to all instruments requiring the corporate seal
when the same shall have been signed on behalf of the
Corporation by a duly authorized officer. The Secretary
shall be the custodian of all contracts, deeds, documents
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and all other indicia of title to properties owned by the
Corporation and of its other corporate records and in
general shall perform all duties and have all powers
incident to the office of Secretary. To such extent as the
Board or the Executive Committee shall deem proper, the
duties of Secretary may be performed by one or more
assistants, to be appointed by the Board or Executive
Committee.
(g) Assistant Secretaries and Assistant
Treasurers. Each Assistant Secretary and each Assistant
Treasurer shall perform the duties of and exercise the
powers of the Secretary and the Treasurer, respectively, in
the absence of the Secretary and the Treasurer,
respectively.
ARTICLE VI
Contracts, Checks, Drafts,
Bank Accounts, Proxies, etc.
SECTION 1. Execution of Documents. The
President, each Vice president or any other officer,
employee or agent of the Corporation designated by the
Board, or designated in accordance with corporate policy as
approved by the Board, shall have power to execute and
deliver deeds, leases, contracts, mortgages, bonds,
debentures, checks, drafts and other orders for the payment
of money and other documents for and in the name of the
Corporation, and such power may be delegated (including
power to redelegate) by written instrument to other
officers, employees or agents of the Corporation.
SECTION 2. Deposits. All funds of the
Corporation not otherwise employed shall be deposited from
time to time to the credit of the Corporation or otherwise
in accordance with corporate policy as approved by the
Board.
SECTION 3. Proxies in Respect of Stock or Other
Securities of Other Corporations. The President or any
other officer of the Corporation designated by the Board
shall have the authority (a) to appoint from time to time an
agent or agents of the Corporation to exercise in the name
and on behalf of the Corporation the powers and rights which
the Corporation may have as the holder of stock or other
securities in any other corporation, (b) to vote or consent
in respect of such stock or securities and (c) to execute or
cause to be executed in the name and on behalf of the
Corporation and under its corporate seal, or otherwise, such
written proxies, powers of attorney or other instruments as
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he may deem necessary or proper in order that the Corpora-
tion may exercise such powers and rights. The President or
any such designated officer may instruct any person or
persons appointed as aforesaid as to the manner or
exercising such powers and rights.
ARTICLE VII
Books and Records
The books and records of the Corporation may be
kept at such places within or without the State of Delaware
as the Board may from time to time determine.
ARTICLE VIII
Shares and Their Transfer; Fixing Record Date
SECTION 1. Certificate for Stock. Every owner of
stock of the Corporation shall be entitled to have a certif-
icate certifying the number of shares owned by him in the
Corporation and designating the class of stock to which such
shares belong, which shall otherwise be in such form as the
Board shall prescribe. Each such certificate shall be
signed by, or in the name of the Corporation by, a Co-
Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President and by the Treasurer, and
Assistant Treasurer, the Secretary or an Assistant Secretary
of the Corporation. In case any officer who has signed or
whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer before such certificate
is issued, it may nevertheless be issued by the Corporation
with the same effect as if he were such officer at the date
of issue.
SECTION 2. Record. A record shall be kept of the
name of the person, firm or corporation owning the stock
represented by each certificate for stock of the Corporation
issued, the number of shares represented by each such
certificate and the date thereof, and, in the case of
cancellation, the date of cancellation. Except as otherwise
expressly required by law, the person in whose name shares
of stock stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the
Corporation.
SECTION 3. Lost, Stolen, Destroyed or Mutilated
Certificates. The holder of any stock of the Corporation
shall immediately notify the Corporation of any loss, theft,
destruction or mutilation of the certificate therefor. The
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Corporation may issue a new certificate for stock in the
place of any certificate theretofore issued by it and
alleged to have been lost, stolen, destroyed or mutilated,
and the Board or the President or the Secretary may, in its
or his discretion, require the owner of the lost, stolen,
mutilated or destroyed certificate or his legal representa-
tives to give the Corporation a bond in such sum, limited or
unlimited, in such form and with such surety or sureties as
the Board shall in its discretion determine, to indemnify
the Corporation against any claim that may be made against
it on account of the alleged lost, theft, mutilation or
destruction of any such certificate or the issuance of any
such new certificate.
SECTION 4. Fixing Date for Determination of
Stockholders of Record. (a) In order that the Corporation
may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment
thereof, the Board may fix a record date, which shall not
precede the date upon which the resolution fixing the record
date is adopted by the Board, and which shall not be more
than 60 or less than 10 calendar days before the date of
such meeting. If no record date is fixed by the Board, the
record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the closed of
business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
providing, however, that the Board may fix a new record date
for the adjourned meeting.
(b) If the Restated Certificate of Incorporation
shall permit actions by the stockholders of the Corporation
by written consent without a meeting, the Board may fix a
record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted
by the Board and which date shall not be more than 10
calendar days after the date upon which the resolution
fixing the record date is adopted by the Board. If no
record date has been fixed by the Board, the record date for
determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by
the Board is otherwise required, shall be the first date on
which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corpora-
tion by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which
proceeding of meeting of stockholders are recorded.
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Delivery made to the registered office of the Corporation
shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the
Board and prior action by the Board is required, the record
date for determining stockholder entitled to consent to
corporate action in writing without a meeting shall be at
the close of business on the day on which the Board adopts
the resolution taking such prior action.
(c) In order that the Corporation may determine
the stockholders entitled to receive payment of any dividend
or other disbursement or allotment of any rights or the
stockholders 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 a
record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 calendar
days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such
purpose shall be at the close of business on the day on
which the Board adopts the resolution relating thereto.
ARTICLE IX
Seal
The Board shall provide a corporate seal, which
shall be in the form of a circle and shall bear the full
name of the corporation, the words "Corporate Seal Delaware"
and in figures the year of its incorporation.
ARTICLE X
Fiscal Year
The fiscal year of the corporation shall be a 52-
53 week fiscal period ending the last Saturday in January.
ARTICLE XI
Indemnification
SECTION 1. Right to Indemnification. The
Corporation shall to the fullest extent permitted by
applicable law as then in effect indemnify any person (the
"Indemnitee") who is or was involved in any manner
(including, without limitation, as a party or a witness) or
is threatened to be made so involved in any threatened,
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pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action,
suit or proceeding by or in the right of the Corporation to
procure a judgment in its favor) (a "Proceeding") by reason
of the fact he 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 (including, without limitation,
any employee benefit plan), against all expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonable incurred by the
Indemnitee in connection with such Proceeding. Such
indemnification shall be a contract right and shall include
the right to receive payment in advance of any expenses
incurred by the Indemnitee in connection with such
Proceeding, consistent with the provisions of applicable law
as then in effect.
SECTION 2. Insurance, Contracts and Funding. The
Corporation may purchase and maintain insurance to protect
itself and any person entitled to indemnification under this
Article XI against any expenses, judgments, fines and
amounts payable as specified in Article XI, to the fullest
extend permitted by applicable law as then in effect. The
Corporation may enter into contracts with any person
entitled to indemnification under this Article XI in
furtherance of the provisions of this Article XI and may
create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to
ensure the payment of such amounts as may be necessary to
effect indemnification as provided in this Article XI.
SECTION 3. Indemnification Not Exclusive Right.
The right of indemnification provided in this Article XI
shall not be exclusive of any other right to which those
seeking indemnification may otherwise be entitled, and the
provisions of this Article XI shall inure to the benefit of
the heirs and legal representatives of any person entitled
to indemnification under this Article XI and shall be
applicable to Proceedings commenced or continuing after the
adoption of this Article XI, whether arising from acts or
omissions occurring before or after such adoption.
SECTION 4. Advancement of Expenses. (a) In
furtherance and not in limitation of the foregoing
provisions, all reasonable expenses incurred by or on behalf
of the Indemnitee in connection with any Proceeding shall be
advanced to the Indemnitee by the Corporation within 90
calendar days after the receipt by the Corporation or a
statement or statements from the Indemnitee requesting such
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advance or advances from time to time, except in the case of
a request for expenses incurred in defending a Proceeding in
advance of its final disposition, in which case the
applicable period shall be 30 calendar days. Such statement
or statements shall reasonably evidence the expenses
incurred by the Indemnitee and, if required by law at the
time of such advance, shall include or be accompanied by an
undertaking by or on behalf of the Indemnitee to repay the
amounts advanced if it should ultimately be determined that
the Indemnitee is not entitled to be indemnified against
such expenses pursuant to this Article XI.
(b) If a claim under the foregoing provisions is
not paid in full by the Corporation within 90 calendar days
after a written claim has been received by the Corporation,
except in the case of a claim for expenses incurred in
defending a Proceeding in advance of its final disposition,
in which case the applicable period shall be 30 calendar
days, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses
incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it
permissible under the General Corporation Law of the State
of Delaware for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such action
that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable
standard of conduct set forth in the General Corporation Law
of the State of Delaware, nor an actual determination by the
Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 5. Effects of Amendments. Neither the
amendment or repeal of, nor the adoption of a provision
inconsistent with, any provision of this Article XI
(including, without limitation, this Section 5) shall
adversely affect the rights of any Indemnitee under this
Article XI with respect to any Proceeding commenced or
threatened prior to such amendment, repeal or adoption of an
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inconsistent provision.
SECTION 6. Severability. If any provision or
provisions of this Article XI shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining
provision of this Article XI (including, without limitation,
all portions of any such paragraph of this Article XI
containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the
provisions of this Article XI (including, without
limitation, all portions of any paragraph of this Article XI
containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal
or unenforceable.
ARTICLE XII
Amendments
These By-laws may be amended or repealed by the
Board at any regular or special meeting thereof, subject to
the power of the holders of a majority of the voting power
of all of the then-outstanding shares of the capital stock
of the Corporation entitled to vote in respect thereof, by
their vote at an annual meeting or at any special meeting,
to amend or repeal any By-law.
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