Exhibit 3.2
Restated to 1/22/04
BY-LAWS
OF
CONCORD CAMERA CORP.
ARTICLE I
OFFICES
Section 1. Registered Office and Agent
The registered office of the Corporation is located at 820 Bear Tavern
Road, Trenton, New Jersey 08628. The registered agent at said office is the
Corporation Trust Company.
Section 2. Principal Office
The principal office of the Corporation is located at 4000 Hollywood
Boulevard, Hollywood, Florida 33021.
Section 3. Additional Offices
The Corporation may also have offices and places of business at such
other places, within or without the State of New Jersey, as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place
The annual meeting of the shareholders of the Corporation and all
special meetings of shareholders may be held at such place within or without the
State of New Jersey as shall be fixed from time to time by resolution of the
Board of Directors.
Section 2. Annual Meeting
The annual meeting of shareholders shall be held on such a date as the
Board of Directors may from time to time fix by resolution, and the shareholders
shall then elect a Board of Directors and transact such other business as may
properly be brought before the meeting.
Section 3. Notice of Annual Meeting
Written notice of the place, date and hour of the annual meeting of
shareholders shall be given, as provided in Article V of these By-Laws, to each
shareholder of record entitled to vote thereat, not less than 10 nor more than
60 days prior to the meeting. Subject to the provisions of Section 7 of this
Article II, when a meeting is adjourned to another time or place, it shall not
be necessary to give notice of the adjourned meeting if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, and, at the adjourned meeting, only such business is
transacted as might have been transacted at the original meeting. However, if
after the adjournment the Board of Directors fixes a new record date for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record on the new record date entitled to notice.
Section 4. Special Meetings
Special meetings of the shareholders, for any purpose or purposes,
unless otherwise prescribed by law or by the Certificate of Incorporation, may
be called by the Chief Executive Officer or by action of the Board of Directors,
and shall be called by the Chief Executive Officer on the written request of the
holders of 10% of all shares entitled to vote at such meeting. Such request
shall state the purpose or purposes of the proposed meeting.
Section 5. Notice of Special Meeting
Written notice of any special meeting of shareholders stating the place,
date and hour of the meeting, and the purpose or purposes for which the meeting
is called, shall be given, as provided in Article V of these By-Laws, to each
shareholder of record entitled to vote thereat, not less than 10 nor more than
60 days prior to the meeting. Subject to the provisions of Section 7 of this
Article II, when a meeting is adjourned to another time or place, it shall not
be necessary to give notice of the adjourned meeting if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, and, at the adjourned meeting, only such business is
transacted as might have been transacted at the original meeting. However, if
after the adjournment the Board of Directors fixes a new record date for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record on the new record date entitled to notice.
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Section 6. List of Shareholders Entitled to Vote at Meetings
The Secretary of the Corporation shall make and certify a complete list
of shareholders entitled to vote at any shareholders' meeting or any adjournment
thereof. Such a list (which may consist of cards arranged alphabetically) shall
be arranged alphabetically within each class, series, or group of shareholders
maintained by the Corporation for convenience of reference, and shall include
the address of, and the number of shares held by, each shareholder. Such list
shall be produced at the time and place of each shareholders' meeting, and shall
be subject to the inspection of any shareholder during the whole time of the
meeting. If the requirements of this Section 6 have not been complied with, the
meeting shall, upon the demand of any shareholder in person or by proxy, be
adjourned until such requirements are complied with, however, failure to comply
therewith shall not affect the validity of any action taken at such meeting
prior to the making of any such demand.
Section 7. Quorum, Adjourned Meetings
Except as otherwise provided by law or in the Certificate of
Incorporation, the holders of shares entitled to cast a majority of the votes at
a meeting of shareholders shall constitute a quorum for the transaction of
business at any such meeting.
If a quorum shall not be present at any meeting of the shareholders, the
shareholders entitled to vote thereat present in person or represented by proxy
shall have power to adjourn the meeting from time to time until a quorum shall
be present. At least two days prior to the adjourned meeting, notice thereof
shall be given, as provided in Article V of these By-Laws, to each shareholder
entitled to vote thereat who was not present in person at the meeting at the
time originally called and, unless announced at the meeting, to the other
shareholders. At any such adjourned meeting at which a quorum may be present,
any business may be transacted which might have been transacted at the meeting
as originally called.
The shareholders present in person or by proxy at a duly organized
meeting may continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
Section 8. Voting
(a) At any meeting of the shareholders, every shareholder having the
right to vote shall be entitled to vote in person or by proxy, and each share
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders.
(b) Except as otherwise provided by law or the Certificate of
Incorporation, all elections of Directors shall be decided by a plurality of the
votes cast by the holders of shares entitled to vote thereon, and all other
matters shall be decided by a majority of the votes cast by the holders of
shares entitled to vote thereon.
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(c) At each meeting of the shareholders, the polls shall be opened
and closed, the proxies and ballots shall be received and be taken in charge,
and all questions touching 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, the qualification of voters, and the acceptance
or rejection of votes may be decided by one or more inspectors. Such inspectors
may be appointed by the Board of Directors in advance of the shareholders'
meeting or, if not so appointed, the chairman of the meeting may, and on the
request of any shareholder entitled to vote thereat shall, appoint one or more
such inspectors. If, for any reason, any of the inspectors appointed shall fail
to appear or act, inspectors in place of any so failing to attend or refusing or
unable to serve shall be appointed in like manner. 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 Board may also
appoint one or more inspectors in advance of the tabulation of written consents
of shareholders without a meeting, to tabulate such consents and make a written
report thereof. The duties of such inspectors shall be the same as or equivalent
to those of inspectors appointed to act at a meeting. On request of the chairman
of the meeting or any shareholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter determined by
them, and execute a certificate of any fact found by them. The requirement of
inspectors at any shareholders' meeting shall be deemed to have been waived
unless compliance therewith is requested by a shareholder present in person or
by proxy and entitled to vote at such meeting.
Section 9. Proxies
Every shareholder entitled to vote at a meeting of shareholders or to
express consent without a meeting may authorize another person or persons to act
for him by proxy. Every proxy shall be executed in writing by the shareholder or
his agent, except that a proxy may be given by a shareholder or his agent by
telegram, cable, telephonic transmission or any other means of electronic
communication so long as the communication sets forth, or is submitted with
information from which it can be determined that, the proxy was authorized by
the shareholder or his agent. No proxy shall be valid for more than 11 months
from the date thereof, unless a longer time is expressly provided therein.
Unless the proxy states that it is irrevocable and it is coupled with an
interest or an irrevocable proxy is otherwise permitted by law, every proxy
shall be revocable at the will of the shareholder executing it. A proxy shall
not be revoked by the death or incapacity of a shareholder but such proxy shall
continue in force until revoked by the personal representative or guardian of
the shareholder. The presence at any meeting of any shareholder who has given a
proxy shall not revoke such proxy until the shareholder shall file written
notice of such revocation with the secretary of the meeting prior to the voting
of such proxy.
A person named in a proxy as the attorney or agent of a shareholder may,
if the proxy so provides, substitute another person to act in his place,
including any other person named as an attorney or agent in the same proxy. The
substitution shall not be effective until an instrument effecting it is filed
with the Secretary of the Corporation.
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Section 10. Consents
(a) The annual election of Directors of the Corporation may be
accomplished without a meeting if all the shareholders of the Corporation
entitled to vote thereon consent to said election in writing.
(b) Any action required or permitted to be taken at a meeting of
shareholders by law, the Certificate of Incorporation or these By-Laws with
respect to any proposal for (i) a merger or consolidation of the Corporation
with one or more other corporations, (ii) an acquisition by the Corporation, in
exchange for its shares, of all the capital shares, obligations, other
securities, or assets of another corporation, or (iii) a sale or other
disposition of all or substantially all of the Corporation's assets other than
in the usual and regular course of its business, may be taken without a meeting,
if (1) all the shareholders of the Corporation consent thereto in writing or (2)
all the shareholders of the Corporation entitled to vote thereon consent thereto
in writing and, unless otherwise permitted by law, the Corporation provides to
all other shareholders of the Corporation notification of the action consented
to, the proposed effective date of such action, and any conditions precedent to
such action. Such notification shall be given at least 20 days in advance of the
proposed effective date of such action. Any shareholder who by law or the
Certificate of Incorporation has a right to dissent from such action shall in
such notice also be informed that he has the right to dissent and to be paid the
fair value of his shares, provided that he files with the Corporation a written
notice of dissent as required by Section 14A:11-2(l) of the New Jersey Business
Corporation Act within 20 days from the date of the giving of the notice, or
such greater period of time as may be granted by the Corporation, and outlining
briefly, with particular reference to the time periods within which such actions
must be taken, the procedures set forth in Chapter 11 of the New Jersey Business
Corporation Act with which he must comply in order to assert and enforce such
right.
(c) Except as otherwise provided above in Subsection (a) of this
Section 10, or by law or the Certificate of Incorporation, any action required
or permitted by law, the Certificate of Incorporation or these By-Laws to be
taken at a meeting of shareholders (including, without limitation, actions taken
with respect to the proposals described in Subsection (b) of this Section 10
pursuant to Chapter 10 of the New Jersey Business Corporation Act), may be taken
without a meeting, without prior notice and without a vote, upon the written
consent of shareholders who would be entitled to cast the minimum number of
votes which would be necessary to authorize such action at a meeting at which
all shareholders entitled to vote thereon were present and voting, subject,
however, in the case of any such action taken pursuant to Chapter 10 of the New
Jersey Business Corporation Act, to compliance by the Corporation with the
notice and other requirements (to the extent applicable) of Section 14A:5-6(2)
of the New Jersey Business Corporation Act.
(d) (1) If any shareholder shall have the right to dissent,
pursuant to Chapter 11 of the New Jersey Business Corporation Act, from any
action proposed to be taken by written consent in lieu of meeting, the Board of
Directors shall, and in any other case may, fix a date on which the written
consents are to be tabulated; if no date is fixed, such consents may be
tabulated as they are received. No written consent shall be counted which is
received more than 60 days
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after the date of the action of the Board of Directors authorizing the
solicitation of written consents or, in a case in which written consents, or
proxies for such consents, are solicited from all shareholders who would have
been entitled to vote at a meeting called to take such action, more than 60 days
after the date of mailing of such solicitation.
(2) Except as may otherwise be permitted by law, the
Corporation, upon receipt and tabulation of the requisite number of written
consents, shall promptly notify all nonconsenting shareholders, who would have
been entitled to notice of a meeting to vote upon such action, of the action
consented to, the proposed effective date of such action, and any conditions
precedent to such action. Such notification shall be given at least 20 days in
advance of the proposed effective date of any such action taken pursuant to
Chapter 10 of the New Jersey Business Corporation Act and at least 10 days in
advance of the proposed effective date of any other action.
(3) Except as otherwise provided by law, any written consent
may be revoked at any time prior to the day on which the proposed action could
be taken upon compliance with paragraph (2) of this Subsection (d). No
revocation shall be effective unless in writing and until received by the
Corporation at the place fixed for receipt of consents or, if none, at the main
business office or headquarters of the Corporation.
(e) Whenever action is taken by written consent in lieu of meeting
pursuant to this Section 10, the written consents of the shareholders consenting
thereto or the written reports of inspectors appointed to tabulate such consents
shall be filed with the minutes of proceedings of shareholders.
ARTICLE III
DIRECTORS
Section 1. Number; Independence; Term
(a) The number of Directors constituting the entire Board of
Directors shall be six (6), or such other number as may be fixed from time to
time by the Board of Directors. A majority of the Directors constituting the
Board of Directors shall be independent directors as defined in the applicable
Nasdaq stock market rules, as the same may be amended from time to time
(hereinafter, the "Independent Directors").
(b) Nominees to stand for election to the Board of Directors shall
be selected by a majority of the Independent Directors. Directors shall be
elected at the annual meeting of the shareholders, except as provided in Section
3 of this Article III, and each Director shall be elected to serve until the
earliest to occur of his resignation or removal or when his successor shall have
been elected and has qualified.
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Section 2. Resignation; Removal
Any Director may resign at any time by giving written notice to the
Corporation, and such resignation shall be effective upon receipt thereof by the
Corporation or at such subsequent time as may be specified in the notice of
resignation. One or more of the Directors may be removed for cause by the
shareholders by the affirmative vote of the majority of the votes cast by the
holders of shares entitled to vote for the election of Directors. Unless the
Certificate of Incorporation of the Corporation provides otherwise, one or more
of the Directors may be removed without cause by like vote of the shareholders.
If the Certificate of Incorporation of the Corporation, or a by-law adopted by
the shareholders, so provides, the Board of Directors shall have the power to
remove one or more Directors for cause and to suspend one or more Directors
pending a final determination that cause exists for removal.
Section 3. Vacancies
Any directorship not filled at the annual meeting, any vacancy, however
caused, occurring in the Board, and any newly created directorships resulting
from an increase in the authorized number of directors may be filled by the
affirmative vote of a majority of the remaining Directors, even though less than
a quorum of the Board, or by a sole remaining Director, and each Director so
chosen shall hold office until the next annual meeting of the shareholders and
until his successor shall have been elected and qualified.
Any directorship not filled by the Board may be filled by the
shareholders at an annual or special meeting of the shareholders called for that
purpose.
When one or more Directors shall resign from the Board of Directors
effective at a future date, a majority of the Directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each Director so chosen shall hold
office until the next annual meeting of the shareholders and until his successor
shall have been elected and qualified.
If for any reason the Corporation has no Directors in office, any
shareholder or the executor or administrator of a deceased shareholder may call
a special meeting of shareholders for the election of Directors, and, over his
own signature shall give notice of said meeting in accordance with these By-Laws
and the laws of the State of New Jersey.
Section 4. Executive Committee and Other Committees
(a) The Board of Directors, by resolution adopted by a majority of
the entire Board, may appoint from among its members an executive committee and
one or more other committees, each consisting of one or more Directors and the
composition of which will comply with applicable laws and governmental
regulations, and each of which, to the extent provided in said resolution, the
Certificate of Incorporation or these By-Laws, and except as limited by law or
the Certificate of Incorporation or these By-Laws, shall have and may exercise
all the authority of the Board of Directors, except that no such committee shall
(i) make, alter, or repeal any by-law
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of the corporation; (ii) elect or appoint any director, or remove any officer or
director; (iii) submit to shareholders any action that requires shareholders'
approval; or (iv) amend or repeal any resolution theretofore adopted by the
Board of Directors which by its terms is amendable or repealable only by the
Board.
(b) The Board of Directors by resolution adopted by a majority of
the entire Board, may (i) fill any vacancy in any such committee; (ii) appoint
one or more Directors as alternate members of any such committee, to act in the
absence or disability of members of any such committee with all the powers of
such absent or disabled members; (iii) abolish any such committee at its
pleasure and (iv) remove any Director from membership or such committee at any
time, with or without cause. Each of such committees shall keep regular minutes
of its proceedings and shall report thereon to the Board of Directors at its
next meeting following such committee meeting; except that, when the meeting of
the Board is held within two days after the committee meeting, such report may
be made at the second meeting of the Board following such committee meeting.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. Place
The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of New Jersey.
Section 2. Regular Meetings; Executive Sessions
Regular meetings of the Board of Directors may be held without notice at
such time and at such place as shall be determined from time to time by the
Board of Directors. The Independent Directors shall hold regularly scheduled
meetings at which only Independent Directors are present.
Section 3. Special Meetings
Special meetings of the Board of Directors may be called by the Chairman
of the Board, if any, or by the President, on five days' notice to each Director
as provided in Article V of these By-Laws; special meetings shall be called by
the Chairman of the Board, President or Secretary in like manner and on like
notice on the written request of two Directors.
Section 4. Quorum
Except as provided in Section 3 of Article III of these By-Laws, (i) at
all meetings of the Board of Directors a majority of the entire Board of
Directors shall be necessary to constitute a quorum for the transaction of
business, and (ii) at all meetings of any committee, a majority of
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the members thereof shall be necessary to constitute a quorum for the
transaction of business. Except as may be otherwise specifically provided by law
or by the Certificate of Incorporation, the act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors or any committee thereof. If a quorum shall not be present at any
meeting of the Board of Directors, a majority of the Directors present thereat
may adjourn the meeting from time to time until a quorum shall be present.
Notice of any such adjournment need not be given if the time and place are fixed
at the meeting at which the adjournment is taken and if the period of
adjournment does not exceed 10 days in any one adjournment; in the event that
notice is given, it shall be given to each Director as provided in Article V of
these By-Laws.
Section 5. Action in Lieu of Meeting
Any action required or permitted to be taken pursuant to authorization
voted at a meeting of the Board of Directors or any committee thereof may be
taken without a meeting if, prior or subsequent to such action, all members of
the Board of Directors or the committee, as the case may be, consent thereto in
writing and such written consents are filed with the minutes of the proceedings
of the Board of Directors or committee.
Section 6. Compensation
Directors who are not officers or employees of the Corporation shall
receive such fees and expense reimbursements as shall be determined from time to
time by resolution of the Board of Directors. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 7. Participation at Meetings by Means of Communications Equipment
Unless otherwise provided in the Certificate of Incorporation or these
By-Laws, where appropriate communication facilities are reasonably available,
any or all members of the Board of Directors may participate in a meeting of the
Board of Directors or any committee thereof by means of a conference telephone
or any means of communication by which all persons participating in the meeting
are able to hear each other.
ARTICLE V
NOTICES
Section 1. Form; Delivery
Whenever under the provisions of any applicable law, the Certificate of
Incorporation or these By-Laws, notice is required to be given to any director
or shareholder, such notice shall be prepared in writing and personally
delivered or mailed, postage prepaid, to such director or shareholder at his
address as it appears on the records of the Corporation, and shall be deemed
given when personally delivered or deposited in the United States mail, as the
case may be;
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provided, that such notice may also be given by telegram and in such case shall
be deemed given when ordered or, if a delayed delivery is ordered, as of such
delayed delivery time.
Section 2. Waiver of Notice or of Lapse of Time
Whenever a notice is required to be given by law, the Certificate of
Incorporation or these By-Laws, such notice need not be given to any shareholder
who signs a waiver of such notice, in person or by proxy, whether before or
after the meeting. In addition, any shareholder attending a meeting of
shareholders in person or by proxy without protesting prior to the conclusion of
the meeting the lack of notice thereof to him, and any Director attending a
meeting of the Board of Directors without protesting such lack of notice prior
to the conclusion of the meeting, shall be conclusively deemed to have waived
notice of such meeting.
Whenever the shareholders of the Corporation are authorized to take any
action after the lapse of a prescribed period of time, the action may be taken
without such lapse if such requirement is waived in writing, in person or by
proxy, before or after the taking of such action, by every shareholder entitled
to vote thereon as at the date of the taking of such action.
ARTICLE VI
OFFICERS
Section 1. Officers
The officers of the Corporation shall be a President, one or more Vice
Presidents, a Secretary, one or more Assistant Secretaries, a Treasurer, one or
more Assistant Treasurers, and such other officers, including a Chairman of the
Board, a Chief Executive Officer and a Chief Operating Officer, as the Board of
Directors or the Chairman and Chief Executive Officer may deem appropriate. 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 by law or by these By-Laws to be executed, acknowledged,
or verified by two or more officers. No officer except the Chairman of the Board
need be a member of the Board of Directors.
Section 2. Authority and Duties
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 these By-Laws, or, as may be determined by resolution of the Board
of Directors not inconsistent with these By-Laws, or, as to all other officers
except the Chairman of the Board, by the Chief Executive Officer not
inconsistent with these By-Laws.
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Section 3. Term of Office; Removal
The Chairman of the Board of Directors, the Chief Executive Officer and
all other senior officers who are "officers" of the Corporation for purposes of
Section 16 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), shall be elected by the Board of Directors and shall hold office for such
time as may be prescribed by the Board of Directors. All other officers shall be
appointed by the Chief Executive Officer of the Corporation and shall hold
office for such time as may be prescribed by the Chief Executive Officer. The
Chief Executive Officer may be removed with or without cause at any time by the
Board of Directors. Any other officer may be removed with or without cause at
any time by the Chief Executive Officer or the Board of Directors. The removal
of an officer without cause shall be without prejudice to his contractual
rights, if any. The election or appointment of an officer shall not in and of
itself create any contractual rights.
Section 4. Compensation
Compensation of the Chief Executive Officer of the Corporation and any
officer, employee or agent of the Corporation having a familial relationship to
the Chief Executive Officer shall be determined, or recommended to the Board of
Directors for determination, either by a majority of the Independent Directors,
or by a Compensation Committee of the Board of Directors comprised solely of
Independent Directors (the "Compensation Committee"), and the Chief Executive
Officer may not be present during such voting or deliberations. Unless otherwise
determined by the Board of Directors, the compensation of all other senior
officers who are "officers" of the Corporation for purposes of Section 16 of the
Exchange Act shall be determined by the Compensation Committee. The compensation
of all other officers, employees and agents of the Corporation shall be
determined by the Chief Executive Officer of the Corporation.
Section 5. Vacancies
If an office becomes vacant for any reason, the Board of Directors, or,
with respect to offices authorized to be filled by the Chief Executive Officer,
the Chief Executive Officer, may fill the vacancy, and any officer so appointed
or elected by the Board shall serve only until the expiration of the term of his
predecessor unless reelected by the Board of Directors.
Section 6. The Chairman of the Board and Chief Executive Officer
The Chairman of the Board of Directors and Chief Executive Officer, if
there be any, shall preside at all meetings of the shareholders and Board of
Directors at which he is present, and shall have overall planning and policy
making powers and duties with respect to the Corporation, including the
selection of all independent contractors (including professionals) except for
the Corporation's independent auditor (and any other accounting firm engaged by
the Corporation to perform audit related services) which shall be selected by
the Audit Committee of the Board of Directors, and such other duties as may from
time to time be assigned by the Board of Directors. He shall possess the same
power as the President to sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board of Directors, except
where, by law, the signature of the President is required. During the absence
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or disability of the President, the Chairman of the Board and Chief Executive
Officer shall exercise all the powers and discharge all the duties of the
President.
Section 7. The President
The President shall have general and active management and control of
the day-to-day business and affairs of the Corporation, subject to the control
of the Board of Directors and the Chief Executive Officer, and shall see that
all orders and resolutions of the Board and of the Chairman and Chief Executive
Officer are carried into effect; in the absence of the Chairman of the Board and
the Chief Executive Officer, or if there be no Chairman or Chief Executive
Officer, he shall preside at all meetings of the shareholders or Board of
Directors at which he is present, and shall have such other powers and duties as
may from time to time be assigned by the Board of Directors.
Section 8. The Vice President
The Vice President or, if there be more than one, the Vice Presidents in
the order or priority determined by the Board of Directors, shall, in the
absence or disability of the Chairman and Chief Executive Officer and the
President, perform the duties and exercise the powers of the President, and
shall generally assist the Chairman and Chief Executive Officer and the
President and perform such other duties as the Board of Directors shall
prescribe.
Section 9. The Secretary
The Secretary, whenever a secretary of a particular meeting has not been
appointed at such meeting, shall record, or cause to be recorded, all votes at
meetings of the Board of Directors or for the shareholders, and shall keep or
cause to be kept minutes of all corporate proceedings, and shall perform like
duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the shareholder, and special meetings of the
Board, and shall perform such other duties as may be prescribed by the Board of
Directors or by the Chairman and Chief Executive Officer or, in his absence, the
President. He shall keep in safe custody the seal of the Corporation and, when
authorized by the Board, affix the same to any instrument requiring it and, when
so affixed, it shall, if required, be attested by his signature or by the
signature of the Treasurer or an Assistant Secretary or Assistant Treasurer. He
shall keep in safe custody the certificate books and shareholder records and
such other books and records as the Board may direct and shall perform all other
duties incident to the office of the Secretary.
Section 10. The Assistant Secretary
During the absence or disability of the Secretary, the Assistant
Secretary, or, if there be more than one, the one so designated by the Secretary
or by the Board of Directors, shall have all the powers and functions of the
Secretary.
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Section 11. The Treasurer
The Treasurer shall have the care and custody of the corporate funds and
other valuable effects, including securities, shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board, taking proper vouchers for such disbursements, and
shall render to the President and Directors, at the regular meeting of the
Board, or whenever they may require it, an accounting of all his transactions as
Treasurer and of the financial condition of the Corporation.
Section 12. The Assistant Treasurer
During the absence or disability of the Treasurer, the Assistant
Treasurer, or, if there be more than one, the one so designated by the Treasurer
or by the Board of Directors, shall have all the powers and functions of the
Treasurer.
Section 13. Bonds
If the Board of Directors or the Chairman and Chief Executive Officer
shall so require, any officer or agent of the Corporation shall give the
Corporation a bond for such term, in such sum and with such surety or sureties
as shall be satisfactory to the Board, for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
ARTICLE VII
SHARE CERTIFICATES
Section 1. Form; Signature
The certificate for shares of the Corporation shall be in such form as
shall be determined by the Board of Directors and shall be numbered
consecutively and entered in the books of the Corporation as they are issued.
Each certificate shall state: (i) that the Corporation has been organized under
the laws of the State of New Jersey, and (ii) the registered holder's name and
the number and class of shares, and the designation of the series, if any, which
such certificate represents, and shall be signed by the Chairman or
Vice-Chairman of the Board, or the President or a Vice-President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
and may bear the seal of the Corporation or a facsimile thereof. Where any such
certificate is countersigned by a transfer agent or registrar, who is not an
officer or employee of the Corporation, any and all other signatures may be
facsimiles. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon any such certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is
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issued, it may nevertheless be issued by the Corporation with the same effect as
if he were such officer, transfer agent or registrar at the date of its issue.
Section 2. Lost Certificates
The Board of Directors, or any officer of the Corporation designated by
the Board of Directors or the Chief Executive Officer, may direct that a new
share certificate or certificates be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the furnishing to the Corporation of an affidavit to that effect
by the person claiming the certificate has been lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board, or any
officer of the Corporation designated by the Board of Directors or the Chief
Executive Officer, may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to give the Corporation and its
transfer agent(s) and registrar(s) a bond in such sum as it may direct
(including a bond without limit as to amount) as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
Section 3. Registration of Transfer
Upon surrender to the Corporation or any transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation or such transfer agent, upon receipt of payment of any
applicable transfer taxes, to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 4. Registered Shareholders
Except as otherwise provided by law, the Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends or other distributions and to vote as such
owner, and the Corporation shall be entitled to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or legal claim to or interest in such
share or shares on the part of any other person, whether or not it has actual or
other notice thereof.
Section 5. Record Date
For the purpose of determining the shareholders entitled to notice of or
to vote at any meeting of shareholders or any adjournment thereof, or to give a
written consent to or dissent from any proposals without a meeting, or for the
purpose of determining shareholders entitled to receive payment of any dividend
or the allotment of any rights, or for the purpose of any other action affecting
the interest of shareholders, the Board of Directors may fix, in advance, a
record date. Such date shall not be more than 60 days prior to the shareholders'
meeting or other corporate action or event to which it relates. The record date
for a shareholders' meeting may not be less than 10 days before the date of the
meeting. The record date to determine shareholders
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entitled to give a written consent may not be more than 60 days before the date
fixed for the tabulation of the consents or, if no date has been fixed for
tabulation, more than 60 days before the last day on which consents received may
be counted.
If no record date is fixed: (a) the record date for a shareholders'
meeting shall be the close of business on the day next preceding the day on
which notice is given or, if no notice is given, the day next preceding the day
on which the meeting is held; (b) the record date for determining shareholders
for any other purpose shall be at the close of business on the day on which the
resolution of the Board of Directors relating thereto is adopted; and (c) the
record date for determining shareholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by these By-Laws or by applicable law, 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 Corporation by delivery to its registered office in New
Jersey, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
shareholders are recorded.
Except as otherwise provided by law, only such persons as shall be
shareholders 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 give such written
consent, or to receive payment of such dividend or such allotment of rights, or
otherwise to be recognized as shareholders for the related purpose,
notwithstanding any registration of transfer of shares on the books of the
Corporation after any such record date so fixed.
When a determination of shareholders of record for a shareholders'
meeting has been made, such determination shall apply to any adjournment
thereof, unless the Board of Directors fixes a new record date for the adjourned
meeting in accordance with these By-Laws.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Fiscal Year
The fiscal year of the Corporation shall be fixed by the Board of
Directors.
Section 2. Dividends
Subject to the provisions of the Certificate of Incorporation and the
laws of the State of New Jersey, dividends on the outstanding shares of the
Corporation may be declared by the Board of Directors at any regular or special
meeting and may be paid in cash, in shares of the capital stock of the
Corporation, in bonds of the Corporation, or in other property, including shares
or bonds of other corporations.
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Section 3. Reserves
Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors may from time to time, in their absolute discretion, deem proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation.
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