BY-LAWS
OF
HOMETOWN AUTO RETAILERS, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of Hometown Auto
Retailers, Inc. ("Corporation") in the State of Delaware shall be at 9 East
Loockerman Street, City of Dover, County of Kent. The name of the registered
agent in charge thereof is National Registered Agents, Inc.
Section 1.2 Principal Office. The principal office of the Corporation
shall be located in the State of Connecticut.
Section 1.3 Additional Offices. The Corporation may also maintain offices
at such other places within or without the State of Delaware and within or
without the United States of America as the Board of Directors may, from time to
time, determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Annual and special meetings of the
stockholders of the Corporation shall be held at such place within or without
the State of Delaware as may be fixed from time to time by the Board of
Directors and specified in the notice of the meeting or in a duly executed
waiver of notice thereof or if not so fixed, at the principal office of the
Corporation in the State of Connecticut.
Section 2.2 Annual Meetings. The annual meetings of stockholders for the
election of Directors of the Corporation and for the transaction of such other
business as may come before the meeting shall be held on a date selected by the
Board of Directors, not more than sixty (60) days after the financial statements
for the preceding fiscal year shall be available. At each Annual Meeting,
Directors and Officers shall be elected or re-elected, as the case may be. A
failure to hold the annual meeting on the date so fixed or to elect a sufficient
number of Directors to conduct the business of the Corporation shall not work a
forfeiture or give cause for dissolution of the Corporation except as expressly
required by applicable laws.
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Section 2.3 Special Meetings. A special meeting of the stockholders of the
Corporation may be called at any time and for any purpose or purposes by the
Board of Directors, and shall be called by the President or the Secretary as
otherwise provided by the General Corporation Law of the State of Delaware. At
any such special meeting only such business may be transacted which is related
to the purpose or purposes set forth in the written notice of meeting required
by the General Corporation Law of the State of Delaware or any applicable
successor provision thereto.
Section 2.4 Notice of Meetings. Written notice of the place, date and hour
of each annual or special meeting of stockholders shall be given personally or
by first class mail not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote thereat. The notice
of any special meeting shall also state the purpose or purposes for which the
meeting is called and by or at whose direction the notice is being issued. If,
at any meeting, whether annual or special, action is proposed to be taken which
would, if taken, entitle stockholders fulfilling requirements of law to receive
payment for their shares, the notice of such meeting shall include a statement
of that purpose and to that effect. Such notice may be given personally or by
mail or by transmitting the notice thereof to him or her at such address or
telephone facsimile number, as the case may be, by telegram, cable, radiogram,
telephone facsimile or other appropriate written communication. If such notice
is mailed, it shall be deemed given when deposited in the United States Mail in
a postage-prepaid envelope directed to the stockholder of record at his address
as it appears on the record of stockholders, or, if he shall have filed with the
Secretary of the Corporation a written request that notices to him be mailed to
some other address, then directed to him at such other address. An affidavit of
the Secretary of the Corporation or other person giving the notice that the
notice required to be given has been given shall, in the absence of fraud, be
prima facie evidence of the facts therein stated. Notice of any adjourned
session of a meeting of stockholders shall not be required to be given if the
place, date and time thereof are announced at the meeting at which the
adjournment is taken. If, however, the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 2.5 Waiver of Notice. Notice of meeting need not be given to any
stockholder who submits a waiver of notice, signed in person or by proxy, either
before or after the meeting. The attendance of any stockholder at a meeting, in
person or by proxy 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.
Section 2.6 Organization of Meeting. At each meeting of stockholders, the
President, if present and able to act, or in the absence or inability to act of
the President, a Vice President in the order determined by the Board of
Directors, if present and able to act, shall act as Chairman of the meeting. In
the absence of all of the foregoing officers, the stockholders present in person
or by proxy and entitled to vote thereat shall elect a Chairman of the meeting.
The Secretary, or in his absence or inability to act, the Assistant Secretary
shall act as Secretary of the meeting and keep the minutes thereof, but if
neither the Secretary nor the Assistant Secretary is present or able to act, the
Chairman of the meeting shall appoint a Secretary of the meeting. The Board of
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Directors of the Corporation shall be entitled to make such rules or regulations
for the conduct of meetings of stockholders as it shall deem necessary,
appropriate or convenient. Subject to such rules and regulations of the Board of
Directors, if any, the Chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such Chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies and such other
persons as the Chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing
of the polls for balloting on matters which are to be voted on by ballot.
Unless, and to the extent, determined by the Board of Directors or the Chairman
of the meeting, meetings of stockholders shall not be required to be held in
accordance with rules of parliamentary procedure.
Section 2.7 Quorum and Adjournment. At all meetings of stockholders,
except as otherwise provided by applicable law or by the Certificate of
Incorporation of the Corporation, the holders of a majority of the shares
entitled to vote thereat, present in person or by proxy, shall be requisite for
and shall constitute a quorum for the transaction of business. In the absence of
a quorum, the stockholders present in person or by proxy may adjourn the meeting
from time to time. At any such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally called. No notice of an adjourned
meeting need be given if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken. However, if,
after the adjournment, the Board of Directors shall fix a new record date for
the adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to notice as herein specified on the new record
date. The stockholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than the
number required to originally institute a quorum.
Section 2.8 Vote of Stockholders. Each stockholder of record of shares of
stock of the Corporation having voting power shall be entitled at every meeting
of stockholders to one vote for every share of such stock having voting rights
registered in his name in the Corporation's record of stockholders: (a) on the
date fixed pursuant to these By-Laws as the record date for the determination of
stockholders entitled to vote at the meeting; or (b) if no such record date
shall have been so fixed, then at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, the day on
which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting. The election of directors and any other
corporate action required to be taken by vote of the stockholders shall, except
as otherwise required by applicable law or by the Certificate of Incorporation
of the Corporation, be authorized by a majority of the votes cast by the
stockholders entitled to vote thereon.
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Section 2.9 Proxies. 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. Every proxy must be in
writing and signed by the stockholder or his attorney-in-fact. No proxy shall be
valid after the expiration of eleven (11) months from the date thereof unless
otherwise provided in the proxy, but in no case shall a proxy be appointed for a
period over three (3) years. Every proxy shall be revocable at the pleasure of
the stockholder executing it except as otherwise provided in the proxy in those
cases where an irrevocable proxy is coupled with an interest in the stock itself
and is otherwise permitted by law. The termination of the proxy's authority by
act of the stockholder shall, subject to the aforesaid three (3) year
limitation, be ineffective until written notice of the termination has been
given to the Secretary of the Corporation. Unless otherwise provided therein, an
appointment filed with the Secretary of the Corporation shall have the effect of
revoking all proxy appointments of prior date. A proxy authority shall not be
revoked by the death or incapacity of the maker unless, before the vote is cast
or the authority is exercised, written notice of such death or incapacity is
given to the Corporation.
Section 2.10 Consents. Whenever by any provision of law stockholders are
required or permitted to take any action by vote at a meeting, such action may
be taken without a meeting on written consent if a record or memorandum thereof,
setting forth the action so taken, be made in writing and signed in person or by
proxy by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
such record or memorandum be filed with the Secretary of the Corporation and
made a part of the corporate records. Any resolution in writing, signed by the
holders of not less than the minimum number of shares required for approval
thereof, shall be and constitute action by such stockholders to the effect
therein expressed with the same force and effect as if the same had been duly
passed at a duly called meeting of stockholders. Prompt notice of the taking of
any corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Section 2.11 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 or dissent from any proposal
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board of Directors may fix a date as the record
date for any such determination of stockholders. Such date, which shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, shall not be more than sixty (60) nor less than ten (10)
days before the date of any such meeting nor more than sixty (60) days prior to
any other action. If a record date is so fixed, such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to notice of, and to vote at, such meeting and any adjournment thereof,
or to express such consent or dissent, or to receive payment of such dividend or
such allotment of rights, or otherwise to be recognized as stockholders for the
purpose of any other action, notwithstanding any transfer of any shares on the
books of the Corporation after any such record date so fixed. If no record is
fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding
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the day on which the meeting is held. The share ledger, or a duplicate thereof,
kept by the Corporation shall be prima facie evidence as to the stockholders who
are entitled to examine such share ledger, or duplicate thereof, or to vote at
any stockholder's meeting. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting, provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. The business and affairs of the Corporation
shall be managed under the direction of its Board of Directors. In addition to
the powers and authorities expressly conferred upon the Board of Directors by
the Certificate of Incorporation and these By-Laws, the Board of Directors of
the Corporation may exercise all such authority and powers of the Corporation
and do all such lawful acts and things as are not by applicable law or the
Certificate of Incorporation of the Corporation directed or required to be
exercised or done by the stockholders.
Section 3.2 Number, Election and Term of Office. The number of directors
which shall constitute the entire board shall be shall be determined by
resolution of the entire Board of Directors. As used in these By-Laws, the term
"entire board" means the total number of directors which the Corporation would
have if there were no vacancies. Except as otherwise provided by applicable law
or by the Certificate of Incorporation of the Corporation or in these By-Laws,
the directors shall be elected at the annual meeting of the stockholders and
each director so elected shall hold office until the next annual meeting of
stockholders and until his successor shall have been duly elected and qualified
or until his death or until he shall have resigned or been removed as provided
in these By-Laws. At each meeting of the stockholders for the election of
directors at which a quorum is present, the persons receiving a plurality of the
votes cast by the holders of shares entitled to vote in the election shall be
elected. Such election shall be by ballot whenever requested by any person
entitled to vote at such election but, unless so requested, such election may be
conducted in any manner approved at such meeting.
Section 3.3 Qualifications. Directors shall be stockholders of the
Corporation.
Section 3.4 Place of Meetings. Meetings of the Board of Directors, regular
or special, shall be held at such place, within or without the State of Delaware
as may from time to time be determined by the Board of Directors of the
Corporation, as shall be specified or fixed in the respective notices or waivers
of notice.
Section 3.5 Regular Meetings. A regular meeting of the Board of Directors
shall be held immediately following the annual meeting of stockholders at the
same place where the annual meeting is held; other regular meetings of the Board
of Directors shall be held at such time and at such place as shall from time to
time be determined by resolution of the Board. In case the day so determined
shall be a legal holiday, such meeting shall be held on the next succeeding
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business day, not a legal holiday, at the same hour. No notice shall be required
for any such meeting of the Board of Directors, but a copy of every resolution
fixing or changing the time or place of such meetings shall be mailed to every
director at least seven (7) days before the first meeting held pursuant to such
resolution.
Section 3.6 Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board or President or as
otherwise provided by law. Notice of any special meeting, stating the place,
date and hour of the meeting, shall be mailed, postage prepaid, to each
director, addressed to him at his residence or usual place of business, at least
five (5) days before the day on which the meeting is to be held, or shall be
sent to him at such place by personal delivery, telegram, cable, radiogram or
other appropriate written communication or by telephone facsimile machine not
later than one (1) day before the day on which such meeting is to be held.
Unless limited by applicable law, the Certificate of Incorporation of the
Corporation, the By-Laws or the terms of the notice thereof, any and all
business may be transacted at any special meeting of the Board of Directors of
the Corporation.
Section 3.7 Waiver of Notice. Notice of any meeting of the Board of
Directors need not be given to any director who submits a signed waiver of
notice before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to him.
Section 3.8 Organization. At each meeting of the Board of Directors, the
President or in his absence, a Vice President or in his absence, a director
chosen by a majority of the directors present, shall act as Chairman. The
Secretary or in his absence, an Assistant Secretary or in the absence of the
Secretary and all Assistant Secretaries, a person whom the chairman of the
meeting shall appoint, shall act as secretary of the meeting and keep a record
of the proceedings thereof. At all meetings of the Board of Directors, business
shall be transacted in the order determined by the President.
Section 3.9 Quorum and Manner of Acting. A majority of the directors in
office, but not less than two directors, at the time of any regular or special
meeting of the Board of Directors shall be present in person to constitute a
quorum for the transaction of business. Each director present shall have one
vote, irrespective of the number of shares of stock of the Corporation which he
may hold. The vote of a majority of the directors present at the time of such
vote, if a quorum is present at such time, shall be the act of the Board of
Directors except as otherwise required by applicable law or the Certificate of
Incorporation or these By-Laws. A majority of the directors present, whether or
not a quorum is present, or if no directors are present, the Secretary, may
adjourn any meeting to another time and place. Notice of the time and place of
any such adjourned meeting shall be given to the directors who were not present
at the time of adjournment and, unless such time and place were announced at the
meeting at which the adjournment was taken, to the other directors. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. The
directors shall act only as a Board and the individual directors shall have no
power as such. Participation of any one or more members of the Board by means of
a conference telephone or similar communications equipment, allowing all persons
participating in
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the meeting to hear each other at the same time, shall constitute presence in
person at any such meeting.
Section 3.10 Written Consents. Any action required or permitted to be
taken by the Board of Directors or any Committee thereof may be taken without a
meeting if all members of the Board or the Committee, as the case may be,
consent in writing to the adoption of a resolution authorizing the action. The
resolution and the written consents thereto by the members of the Board or
Committee shall be filed with the minutes of the proceedings of the Board or
Committee, as the case may be.
Section 3.11 Resignations. Any director may resign at any time by giving
written notice of his resignation to the Board of Directors or the President.
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, immediately
upon its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3.12 Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of directors and
vacancies occurring in the Board of Directors for any reason except the removal
of directors without cause may be filled by the vote of a majority of the
directors then in office though less than a quorum. Each director elected to a
newly created directorship or to fill a vacancy occurring in the Board for any
reason except the removal of a director without cause shall hold office until
the next annual meeting of stockholders and until his successor shall have been
duly elected and qualified or until he shall have resigned or been removed as in
these By-Laws provided.
Section 3.13 Removal. Any director may be removed with or without cause at
any time by the affirmative vote of stockholders holding of record in the
aggregate at least a majority of the outstanding shares of the Corporation at a
special meeting of the stockholders called for that purpose and may be removed
for cause by action of the Board of Directors.
Section 3.14 Contracts. No contract or other transaction between this
Corporation and one or more of its directors or between this Corporation and any
other corporation, partnership, association or other organization in which one
or more of its directors or officers are directors or officers or have a
financial interest shall be void, voidable, impaired, affected or invalidated,
nor shall any director be liable in any way, solely for such reason, or solely
because the director or officer is present at or participates in the meeting of
the Board or Committee which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if: (a) the material
facts as to his relationship or interest and as to the contract or transaction
are disclosed or made known to the Board of Directors or the Committee, and the
Board or Committee in good faith authorizes the contract or transactions by the
affirmative votes of a majority of the disinterested directors even if the
disinterested directors are less than a quorum; or (b) the material facts as to
his relationship or interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (c) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified by the Board of Directors, a Committee or
the stockholders. Common or interested directors may be counted in
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determining the presence of a quorum at a meeting of the Board of Directors or
of a Committee which authorizes the contract or transaction. This section shall
not be construed to impair or invalidate or in any way affect any contract or
other transaction which would otherwise be valid under the law (common,
statutory or otherwise) applicable thereto.
ARTICLE IV
COMMITTEES
Section 4.1 Designation and Powers. The Board of Directors, by resolution
adopted by a majority of the entire Board, may from time to time designate from
among its members an Executive Committee and such other Committees as they deem
desirable, each consisting of one (1) or more members with such powers and
authority (to the extent permitted by law) as may be provided in such resolution
with respect to all matters other than: (a) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by
Delaware General Corporation Law to be submitted to stockholders for approval or
(b) adopting, amending or repealing any by-law of the Corporation. A majority of
all the members of any such Committee may elect a chairman, fix its rules of
procedure, determine its actions, and fix the time and place (whether within or
without the State of Delaware) of its meetings and specify what notice thereof,
if any, shall be given, unless the Board of Directors shall otherwise by
resolution provide. The Board of Directors shall have power, either with or
without cause, at any time, and from time to time, to change the members of any
such Committee, to fill vacancies in, to change the membership of, or to
dissolve, any such Committee. Nothing herein contained shall be deemed to
prevent the Board from appointing one or more Committees consisting in whole or
in part of persons who are not directors of the Corporation; provided, however,
that no such Committee shall have or may exercise any authority of the Board of
Directors of the Corporation.
Section 4.2 Meetings. A majority of each such Committee may determine its
action and fix the time and place of its meetings unless the Board shall
otherwise provide. At all meetings of a Committee, the presence of a majority,
but not less than two (2), members of the Committee shall be necessary to
constitute a quorum for the transaction of business except as otherwise provided
by said resolution or by these By-Laws. Participation of any one or more members
of the Committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time, shall constitute presence in person at any such meeting.
Section 4.3 Written Consents. Any action authorized in writing by all of
the members of a Committee entitled to vote thereon and filed with the minutes
of the Committee shall be the act of the Committee with the same force and
effect as if the same had been passed by unanimous vote at a duly called meeting
of the Committee.
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ARTICLE V
OFFICERS
Section 5.1 Number, Qualifications and Election. The officers of the
Corporation shall be a President, a Secretary, a Treasurer and such other
officers as the Board of Directors may from time to time deem advisable. The
Board of Directors shall elect all such officers. Any officer other than the
President and, if any, the Chairman of the Board of Directors, may be, but is
not required to be, a director of the Corporation. Any two or more offices may
be held by the same person, but no officer shall execute, acknowledge or verify
any instrument in more than one capacity if such instrument is required to be
executed, acknowledged or verified, as the case may be, by any two or more
officers.
Section 5.2 Term of Office. Insofar as practicable, all officers shall be
elected at the first meeting of the Board of Directors following the Annual
Meeting of Stockholders in each year and, except as otherwise herein provided,
shall hold office until the first meeting of the Board of Directors following
the next Annual Meeting of Stockholders and until their respective successors
shall have been elected or appointed and qualified.
Section 5.3 Removal of Elected Officers. Any officer of the Corporation
may be removed at any time, with or without cause, by majority vote of the Board
of Directors at any meeting called for such purpose.
Section 5.4 Resignations. Any officer may resign at any time by giving
written notice of his resignation to the Board or the President or the
Secretary. 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,
immediately upon its receipt and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 5.5 Vacancies. A vacancy in any office, whether arising from
death, resignation, removal or any other cause, may be filled for the unexpired
portion of the term of office which shall be vacant in the manner prescribed by
these By-Laws for the regular election to such office.
Section 5.6 Chairman of the Board. The Chairman of the Board, if there
shall be one, shall, when present, preside at all meetings of the stockholders
and of the Board of Directors. If the Chairman of the Board is also the Chief
Executive Officer of the Corporation, he shall be responsible for the
implementation of the business, programs and affairs of the Corporation and he
shall have general authority to execute bonds, deeds, mortgages and contracts in
the name and on behalf of the Corporation; to sign certificates for shares; to
vote, or sign proxies or give consents or waivers in respect of, shares of other
corporations owned or held by the Corporation; to cause the employment or
appointment of such employees and agents of the Corporation (other than officers
elected by the Board of Directors) as the conduct of the business of the
Corporation may require, and to fix their compensation; to remove or suspend any
employee or agent who shall not have been appointed by the Board of Directors;
to suspend for cause, pending final action by the Board of Directors, any
officer who shall have been elected by the Board of Directors; and, in general
to exercise all the powers generally appertaining to the office of the
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Chairman of the Board of a Corporation. The Chairman of the Board shall also be
an ex officio member of every Committee of the Board of Directors.
Section 5.7 President. The President shall be the Chief Operating Officer
of the Corporation, provided, however, that if there shall be no Chairman of the
Board, he shall also be Chief Executive Officer of the Corporation and shall
have all the powers and authority provided in these By-Laws to the Chairman of
the Board. In his role as Chief Operating Officer, he shall, in the absence of
the Chairman of the Board, exercise all the authority of such position. In
addition, he shall exercise responsibility for the implementation of all the
business, programs and affairs of the Corporation and shall participate in the
formulation of both immediate and long term planning programs of the
Corporation. He shall monitor the administration of the affairs of the
Corporation and shall advise and counsel the other officers of the Corporation,
particularly with respect to matters which are to be presented to the Board of
Directors. In addition to the Chairman of the Board, he shall have general
authority to execute bonds, deeds, mortgages and contracts in the name and on
behalf of the Corporation; to sign certificates for shares; to vote, or sign
proxies or give consents or waivers in respect of, shares of other corporations
owned or held by the Corporation; to cause the employment or appointment of such
employees and agents of the Corporation (other than officers elected by the
Board of Directors) as the conduct of the business of the Corporation may
require, and to fix their compensation; to remove or suspend any employee or
agent who shall not have been appointed by the Board of Directors; to suspend
for cause, pending final action by the Board of Directors, any officer who shall
have been elected by the Board of Directors; and, in general to exercise all the
powers generally appertaining to the office of President of a Corporation. The
President shall also be an ex officio member of every Committee of the Board of
Directors.
Section 5.8 The Vice Presidents. Each Vice President, including, if any,
Executive Vice Presidents and Senior Vice Presidents, shall have general
authority to sign certificates for shares, shall perform such duties and have
such powers as may from time to time be assigned to them by the President and
shall each report directly to the President. In the absence of the President,
his duties shall be performed and his powers may be exercised by such Vice
President as shall be designated by the President or, failing such designation,
such duties shall be performed and such powers may be exercised by the Vice
Presidents in the order of their last election to that office, subject in any
case to review and superseding action by the Board of Directors.
Section 5.9 The Secretary. The Secretary shall, when requested, attend
meetings of the Board of Directors and the stockholders and shall record all
votes and the minutes of all proceedings in a book to be kept for that purpose
and shall, when requested, perform like duties for all Committees of the Board
of Directors. He shall attend to the giving of notice of all meetings of the
stockholders and special meetings of the Board of Directors and Committees
thereof; he shall have custody of the corporate seal and, when authorized by the
Board of Directors, shall have authority to affix the same to any instrument
and, when so affixed, it shall be attested by his signature or by the signature
of the Treasurer or an Assistant Secretary or an Assistant Treasurer. He shall
keep and account for all books, documents, papers and records of the Corporation
except those for which some other officer or agent is properly accountable. He
shall have authority to sign stock certificates and shall generally perform all
the duties appertaining to the office of Secretary of a corporation. In the
absence of the Secretary, any
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Assistant Secretary or, if there be no Assistant Secretary or if such Assistant
Secretary is not available, such person as shall be designated by the President
shall perform the duties of the Secretary.
Section 5.10 The Treasurer. The Treasurer shall be Chief Financial Officer
of the Corporation and shall have the duties, responsibilities and authority
pertaining thereto, including all financial, accounting and budgetary affairs.
He shall also have the care and custody of all the corporate funds and other
valuable effects of the Corporation and shall deposit the same in such banks or
other depositories as the President or the Board of Directors shall, from time
to time, direct or approve. He shall keep a full and accurate account of all
moneys received and paid on account of the Corporation and shall render a
statement of his accounts whenever the Board of Directors shall require. He
shall perform all other necessary acts and duties in connection with the
administration of the financial affairs of the Corporation and shall generally
perform all the duties usually appertaining to the office of Treasurer of a
corporation. In addition, the Treasurer shall be the Chief Accounting Officer of
the Corporation and shall have active control of, and shall be responsible for,
all matters pertaining to the accounts of the Corporation. He shall: supervise
the auditing of all payrolls and vouchers of the Corporation and shall direct
the manner of certifying the same; supervise the manner of keeping all vouchers
for payments by the Corporation and all other documents relating to such
payments; receive, audit and consolidate all operating and financial statements
of the Corporation, its various departments, divisions and subsidiaries;
supervise the books of account of the Corporation, their arrangement and
classification; and supervise the accounting and auditing practices of the
Corporation and its subsidiaries. In the absence of the Treasurer, the Assistant
Treasurer or, if there shall be more than one, the Assistant Treasurers in the
order determined by the Board of Directors, or if there be no Assistant
Treasurer or if such Assistant Treasurer is not available, such person as shall
be designated by the President shall perform the duties and exercise the powers
of the Treasurer and shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
Section 5.11 Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors of the Corporation. Any officer of the Corporation
shall not be prevented from receiving compensation by reason of the fact that he
is also a director of the Corporation.
Section 5.12 Shares of Other Corporations. Whenever the Corporation is the
holder of shares of any other corporation, any right or power of the Corporation
as such stockholder (including the attendance, acting and voting at
stockholders' meetings and execution of waivers, consents, proxies or other
instruments) may be exercised on behalf of the Corporation by the President, any
Vice President or such other person as the Board of Directors may authorize.
ARTICLE VI
SHARE CERTIFICATES
Section 6.1 Form; Signature. The shares of the Corporation shall be
represented by certificates in such form or forms as shall be approved by the
Board of Directors and shall be
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signed by the President or a Vice President and the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer 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 registered
by a Registrar other than the Corporation or its employees. 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
be issued by the Corporation with the same effect as if he were such officer at
the date of issue. No certificate representing shares of stock of the
Corporation shall be issued until the full amount of consideration therefor has
been paid.
Section 6.2 Regulations; Appointment of Transfer Agents and Registrars.
The Board of Directors may make all such rules and regulations, not inconsistent
with these By-Laws, as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of stock of the Corporation. The Board
of Directors may, in its discretion, appoint one or more banks or trust
companies in the State of New York or in such other city or cities as the Board
of Directors may deem advisable, from time to time, to act as Transfer Agents
and Registrars of the shares of the Corporation; and upon such appointments
being made, no certificate representing shares of the Corporation shall be valid
until countersigned by one of such Transfer Agents and registered by one of such
Registrars.
Section 6.3 Record of Stockholders. There shall be kept at the office of
the Corporation in the State of New York or at the office of its Transfer Agent
in said state, a record containing the names and addresses of all stockholders
of the Corporation, the number and class of shares held by each and the dates
when they respectively became the owners of record thereof. Duplicate lists may
be kept in such other state or states as may, from time to time, be determined
by the Board of Directors of the Corporation.
Section 6.4 Transfers of Shares. Transfers of shares of stock of the
Corporation shall be made on the books of the Corporation only upon
authorization by the registered holder thereof or by his duly authorized
attorney, and on surrender and cancellation of a certificate or certificates for
a like number of shares of the same class properly endorsed or accompanied by a
duly executed stock transfer power and payment of all taxes thereon, with such
proof of authenticity of the signatures as the Corporation or its Transfer Agent
may reasonably require.
Section 6.5 Registered Stockholders. The Corporation shall be entitled to
recognize the person in whose name shares of its stock shall stand on its record
of stockholders as the exclusive owner thereof for all purposes and shall not,
except as otherwise expressly provided by law, be bound to recognize any
equitable or other claim to, or interest in, such shares on the part of any
other person, whether or not it shall have express or other notice.
Section 6.6 Lost, Stolen, Destroyed or Mutilated Certificates. If the
holder of any certificate representing shares of stock of the Corporation shall
notify the Corporation that such certificate has been lost, stolen, destroyed or
mutilated, the Board of Directors, or any officer or officers duly authorized by
the Board of Directors, may authorize the issuance of a substitute certificate
in place of the certificate so alleged to have been lost, stolen, destroyed or
mutilated and may cause or authorize such substitute certificate to be
countersigned by the appropriate
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Transfer Agent and registered by the appropriate Registrar. In each such case,
the Board may, in its discretion, require such owner or his legal representative
to furnish to the Corporation and to such of its Transfer Agents and Registrars
as may require the same, evidence to their satisfaction, in their discretion, of
the loss, theft, destruction or mutilation of such certificate and of the
ownership thereof, and to give to the Corporation a bond in such sum, limited or
unlimited, and in such form and with such surety or sureties as the Board in its
absolute discretion shall determine, to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss, theft,
destruction or mutilation of any such certificate, or the issuance of such new
certificate. A new certificate may be issued without requiring any such evidence
or bond when, in the judgment of the Board of Directors, it is proper so to do.
Anything herein to the contrary notwithstanding, the Board, in its absolute
discretion, may refuse to issue any such new certificate except pursuant to
legal proceedings under the laws of the State of Delaware.
ARTICLE VII
DIVIDENDS
Section 7.1 Declaration. Subject to applicable law, dividends may be
declared and paid out of any funds available therefor, as often, in such
amounts, and at such time or times as the Board of Directors may determine.
ARTICLE VIII
FISCAL YEAR
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January and end on the last day in December in each year except
as may otherwise be provided by resolution of the Board of Directors of the
Corporation.
ARTICLE IX
CORPORATE SEAL
Section 9.1 Corporate Seal. The corporate seal of the Corporation shall
have inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal, Delaware" and shall be in such form as shall be
approved from time to time by the Board of Directors. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
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ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnification. The Corporation shall indemnify its
directors and officers, and may indemnify its employees and agents, in
accordance with and to the full extent permitted by the laws of the State of
Delaware as in effect from time to time, if any such person (and the heirs and
legal representatives of such person) is made or 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
such person is or was, as the case may be, a director, officer, employee or
agent of the Corporation or any constituent corporation absorbed in a
consolidation or merger or serves or served as such with another corporation,
partnership, joint venture, trust or other enterprise at the request of the
Corporation or any such constituent corporation.
Section 10.2 Insurance. The Corporation shall have the right to purchase
and maintain insurance on behalf of any person who is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or other entity, 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 applicable provisions of law.
ARTICLE XI
AMENDMENTS
Section 11.1 Amendments. Subject to the provisions of the Certificate of
Incorporation of the Corporation and of applicable law, these By-Laws may be
amended or repealed or new by-laws not inconsistent with the laws of the State
of Delaware or any provision of the Certificate of Incorporation of the
Corporation may be made, either by the affirmative vote of a majority of the
whole Board of Directors at any regular or special meeting of such Board, or by
the affirmative vote of the holders of record of a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote in respect
thereof, given at an annual meeting or at any special meeting at which a quorum
shall be present, provided that in each case notice of the proposed alteration,
amendment or repeal or the proposed new by-laws be included in the notice of the
meeting of the Board of Directors or the stockholders, or the form of consent
thereof, as the case may be.
Section 11.2 Amendment Affecting Election of Directors; Notice. If any
By-Law regulating an impending election of directors is adopted, amended or
repealed by the Board of Directors, there shall be set forth in the notice of
the next meeting of stockholders for the election of directors the By-Laws so
adopted, amended or repealed, together with a concise statement of the changes
made.
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ARTICLE XII
GENERAL
Section 12.1 Gender. Wherever in these By-Laws a masculine pronoun is
used, it shall be deemed where appropriate to mean or to also include the
feminine.
Section 12.2 Board. Wherever in these By-Laws the term "Board" is used by
itself, it shall mean the Board of Directors of the Corporation.
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