Exhibit 3(b)
BY-LAWS
OF
DILLARD'S, INC.
AMENDED AS OF
MAY 21, 2005
BOARD MEETING
BY-LAWS
OF
DILLARD'S, INC.
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of Directors
shall be held in the City of Little Rock, State of Arkansas, at such place as
may be fixed from time to time by the Board of Directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the third
Saturday in May if not a legal holiday, and if a legal holiday, then on the next
secular day following at 10:00 a.m., or at such other date and time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, at which meeting the stockholders shall elect by written ballot
a Board of Directors and transact such other business as may properly be brought
before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) nor more than fifty (50) days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the City where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the Chairman of the Board or the President and
shall be called by the Chairman of the Board, the President, or the Secretary at
the request in writing of a majority of the Board of Directors. Such request
shall state the purpose or purposes for the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the special meeting is
called, shall be given not less than ten (10) nor more than fifty (50) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Notice to Stockholder Business.
(a) Annual Meetings of Stockholders. (1) The proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders
only (i) pursuant to the Corporation's notice of meeting (or any supplement
thereto), (ii) by or at the direction of the Board of Directors or (iii) by any
stockholder of the Corporation who was a stockholder of record of the
Corporation at the time the notice provided for in this Section 7 is delivered
to the Secretary of the Corporation, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 7.
(2) For business to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 7,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and any such proposed business must constitute
a proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the
ninetieth day nor earlier than the close of business on the one hundred
twentieth day prior to the first anniversary of the preceding year's annual
meeting (provided, however, that in the event that the date of the annual
meeting is more than thirty days before or more than seventy days after
such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth day prior
to such annual meeting and not later than the close of business on the
later of the ninetieth day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting
is first made by the Corporation). In no event shall the public
announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above. Such stockholder's notice shall
set forth: (A) a brief description of the business desired to be brought
before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that
such business includes a proposal to amend the By-laws of the Corporation,
the language of the proposed amendment), the reasons for conducting such
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business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal
is made; and (B) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and
of such beneficial owner, (ii) the class and number of shares of capital
stock of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (iii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, and (iv) a representation
whether the stockholder or the beneficial owner, if any, intends or is part
of a group which intends (x) to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporation's
outstanding capital stock required to approve or adopt the proposal and/or
(y) otherwise to solicit proxies from stockholders in support of such
proposal. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the Corporation of his or her
intention to present a proposal at an annual meeting in compliance with
Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act
and such stockholder's proposal has been included in a proxy statement that
has been prepared by the Corporation to solicit proxies for such annual
meeting.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting.
(c) General. (1) Only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 7. Except as otherwise provided by law,
the chairman of the meeting shall have the power and duty (i) to determine
whether any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 7 (including whether the stockholder or beneficial owner, if any,
on whose behalf the proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support of such
stockholder's proposal in compliance with such stockholder's representation as
required by clause (a)(2)(B)(iv) of this Section 7) and (ii) if any proposed
business was not made or proposed in compliance with this Section 7, to declare
that such proposed business shall not be transacted. Notwithstanding the
foregoing provisions of this Section 7, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the Corporation to present such proposed business,
such proposed business shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the Corporation.
(2) For purposes of this Section 7, "public announcement" shall include
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
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(3) Notwithstanding the foregoing provisions of this Section 7, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 7. Nothing in this Section 7 shall be
deemed to affect any rights (i) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act or (ii) of the holders of any series of Preferred Stock to
elect directors pursuant to any applicable provisions of the Certificate of
Incorporation.
Section 8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than 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 9. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provisions of the statutes, the
Certificate of Incorporation, or these By-Laws, a different vote is required or
permitted, in which case such express provision shall govern and control the
decision of such question.
Section 10. Unless otherwise provided in the Certificate of Incorporation
with respect to the election of Directors, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of the Capital Stock having voting power held by such stockholder,
but no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period.
Section 11. The Corporation may, and to the extent required by law shall,
in advance of any meeting of stockholders, appoint one or more inspectors to act
at the meeting and make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting may, and to the extent
required by law shall, appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability. Every vote taken by
ballots shall be counted by an inspector or inspectors appointed by the chairman
of the meeting.
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ARTICLE III
DIRECTORS
Section 1. The number of Directors which shall constitute the whole Board
shall be not less than nine and not more than twenty-one, as may be determined
from time to time by the Board of Directors. The Directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 3 of this
Article, and each Director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. If, at the time of the annual meeting, the Certificate of
Incorporation shall provide for the election of Directors by a particular class
of the Capital Stock of the Corporation, then persons shall be placed in
nomination for election as Directors to represent such class of Capital Stock. A
majority of the shares of the respective class of the Capital Stock outstanding
and eligible to vote in the election shall elect each Director for such class.
"Majority" as used in the preceding sentence with respect to any nominee for
Director is defined to mean that the affirmative vote of more than one half
(1/2) of the shares of the respective class outstanding and eligible to vote in
the election has been cast for such Director. Nominations to represent the Class
`A' shareholders shall be of independent persons only. For these purposes,
`independent' shall mean a person who:
o has not been employed by the Company or an affiliate in any executive
capacity within the last five years;
o was not, and is not a member of a corporation or firm that is one of
the Company's paid advisers or consultants;
o is not employed by a significant customer, supplier or provider of
professional services;
o has no personal services contract with the Company;
o is not employed by a foundation or university that receives
significant grants or endowments from the Company;
o is not a relative of the management of the Company;
o is not a shareholder who has signed shareholder agreements legally
binding him to vote with management; and
o is not the chairman of a company on which Dillard's, Inc. Chairman or
Chief Executive Officer is also a board member.
Section 3. Vacancies and newly created Directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors then in office, though less than a quorum, or by a sole remaining
Director, and the Directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
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sooner displaced. If there are no Directors in office, then an election of
Directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created Directorship, the Directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to such increase), the Court of Chancery may, upon application
of any stockholder or stockholders holding at least ten per cent (10%) of the
total number of the shares at the time outstanding having the right to vote for
such Directors, summarily order an election to be held to fill any such
vacancies or newly created Directorships, or to replace the Directors chosen by
the Directors then in office.
Section 4. At any special meeting of the stockholders, duly called as
provided in these By-Laws, any Director or Directors may be removed from office;
provided, however, that no Director shall be removed for cause without the
affirmative vote of the holders of four-fifths of the outstanding shares of the
stock entitled to vote for the election of Directors; and provided, further,
that no Director shall be removed without cause unless such removal is approved
by the affirmative vote of the holders of a majority of the outstanding shares
of the particular class that elected such Director in the first instance.
Section 5. (a) Each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in an action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another Corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemniteer's heirs,
executors and administrators; provided, however, that, except as provided in
paragraph (c) hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
(b) The right to indemnification conferred in paragraph (a) of this Section
shall include the right to be paid by the Corporation the expenses incurred in
defending any proceeding for which such right to indemnification is applicable
in advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
Director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right of appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expense under this Section or otherwise.
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(c) The rights to indemnification and to the advancement of expenses
conferred in paragraphs 5(a) and (b) of this Section shall be contract rights.
If a claim under paragraph (a) or (b) of this Section is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by an indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advance of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. 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
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct or, in the case of such a suit brought by the indemnitee, be a defense
to such suit. In any suit brought by the indemnitee to enforce a right of
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not to be indemnified,
or to such advancement of expenses, under this Section or otherwise shall be the
Corporation.
(d) The rights to indemnification and to the advancement of expenses
conferred in this Section shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested Directors or otherwise.
(e) The Corporation may maintain insurance, at its expense, to protect
itself and any Director, officer, employee or agent of the Corporation or any
Corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
(f) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and to the advancement of
expenses (i) to any employee or agent of the Corporation or to any person
serving at the request of the Corporation as an employee or agent of another
Corporation to the fullest extent of the provisions of this Section with respect
to indemnification and advancement of expenses of Directors and officers of the
Corporation and (ii) Directors, officers, employees and agents of any
Corporation absorbed in a consolidation or merger with the Corporation which, if
its separate existence had continued, would have had power and authority to
indemnify its Directors, officers and employees or agents.
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Section 6. The business of the Corporation shall be managed by its Board of
Directors which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the stockholders,
MEETINGS OF THE BOARD OF DIRECTORS
Section 7. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 8. The first meeting of each newly elected Board of Directors shall
be held as soon as is practicable after each annual election of Directors at the
same place at which regular meetings of the Board are held, and no notice of
such meeting shall be necessary to the newly elected Directors in order legally
to constitute the meeting, provided a quorum shall be present. Such meeting,
however, may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or
as shall be specified in a written waiver signed by all of the Directors.
Section 9. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board.
Section 10. Special meetings of the Board may be called by the Chairman of
the Board, the President, or the Secretary on two days' notice to each Director,
either personally or by mail or by telegram; special meetings shall be called by
the Chairman of the Board, the President or the Secretary in like manner and on
like notice on the written request of two Directors.
Section 11. At all meetings of the Board of Directors, two-thirds of the
Directors shall constitute a quorum for the transaction of business at such
meeting and the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors except as may
be otherwise specifically provided by statute or by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 12. Unless otherwise restricted by the Certificate of Incorporation
or these By-Laws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the Minutes of
proceedings of the Board or committee.
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COMMITTEES OF DIRECTORS
Section 13. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of two or more of the Directors of the Corporation. The Board may designate one
or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution, shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; provided, however, that in the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors.
Section 14. A majority of all the members of any such committee may
determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board of Directors shall have
power to change the members of any committee at any time, to fill vacancies, and
to discharge any committee, either with or without cause, at any time.
COMPENSATION OF DIRECTORS
Section 15. The Directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
NOMINATION OF DIRECTORS
Section 16. Only persons who were nominated in accordance with the
procedures set forth in this Section 16 shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors may be
made at a meeting of stockholders by or at the direction of the Executive
Committee of the Board of Directors (or, in the absence of an Executive
Committee, the Board of Directors) or by any stockholder of the Corporation
entitled to vote for the election of Directors at the meeting who complies with
the notice procedure set forth in this Section 16. Such nominations, other than
those made by or at the direction of the Executive Committee of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the meeting; provided, however,
that in the event that less than 70 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a Director, (i) the name, age, business
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address and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of the
Corporation which are beneficially owned by such person and (iv) any other
information relating to such person that is required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
without limitation such persons' written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); and (b) as to
the stockholder giving the notice (i) the name and address, as they appear on
the Corporation's books, of such stockholder and (ii) the class and number of
shares of the Corporation which are beneficially owned by such stockholder. At
the request of the Executive Committee or the Board of Directors any person
nominated by the Executive Committee or the Board of Directors for election as a
Director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth in
Section 16. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the By-Laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
Nomination by stockholders holding a particular class of stock may be made only
for Directors to be elected by such class.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be given
to any Director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
Director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to Directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation or of these By-Laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board of
Directors and shall be a Chairman of the Board, a President, a Vice-President, a
Secretary and a Treasurer. The Board of Directors may also choose additional
Vice-Presidents, one or more Vice-Chairmen of the Board, and one or more
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person, unless the Certificate of Incorporation or these
By-Laws otherwise provide.
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Section 2. The Board of Directors at its first meeting after each annual
meeting of stockholders shall choose a President, one or more Vice-Presidents, a
Secretary and a Treasurer.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
Section 4. The salaries of all officers and agents of the Corporation shall
be fixed by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until their
successors are chosen and qualified. Any officer elected or appointed by the
Board of Directors may be removed with or without cause at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors.
THE CHAIRMAN OF THE BOARD
Section 6. The principal executive officer of the Corporation shall be the
Chairman of the Board, and subject to the control of the Board of Directors, he
shall supervise all affairs of the Corporation. He shall, when present, preside
at all meetings of the shareholders and of the Board of Directors.
THE PRESIDENT
Section 7. The principal administrative officer of the Corporation shall be
the President, who shall supervise the operations of the Corporation, with such
duties as shall be assigned by the Board of Directors and by the Chairman of the
Board. In the absence of the Chairman of the Board, or in the event of his
death, inability or refusal to act, the President shall perform the duties of
the Chairman of the Board, subject to the control of the Board of Directors. The
President shall execute bonds, mortgages and other contracts requiring the seal,
under the seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the President or in the event of his inability
or refusal to act, the Vice-President (or in the event there be more than one
Vice-President, the Vice-Presidents in the order designated, or in the absence
of any designation, then in the order of their election) shall perform the
duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. The Vice-Presidents shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
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THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the Corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision he shall be. He shall have custody of the
corporate seal of the Corporation and he, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature.
Section 10. The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
Section 12. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 13. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 14. The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order designated by the Board of Directors (or
if there be no such designation, then in the order of their election), shall, in
the absence of the Treasurer or in the event of his inability or refusal to act,
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.
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ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled to
have a certificate, signed by, or in the name of the Corporation by, the
Chairman or Vice-Chairman of the Board of Directors or the President or a
Vice-President, and the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary of the Corporation, certifying the number of shares owned
by him in the Corporation. If the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation shall issue to represent such class or
series of stock, a statement that the Corporation will furnish without charge to
each stockholder who so requests the designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 2. If a certificate is countersigned (1) by a Transfer Agent other
than the Corporation or its employee, or, (2) by a Registrar other than the
Corporation or its employee, any other signature on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers of shares of the Capital Stock of the Corporation
shall be made only on the books of the Corporation by the holder thereof, or by
his attorney thereunto authorized by a power of attorney duly executed and filed
with the Secretary of the Corporation or a transfer agent of the Corporation, if
any, and on surrender of the certificate or certificates for such shares
properly endorsed.
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FIXING RECORD DATE
Section 5. 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, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. 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.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the Capital Stock of the Corporation, subject to
the provisions of applicable law and of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the Capital Stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. 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
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserve to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
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CHECKS
Section 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall be fixed by resolution
of the Board of Directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed or new By-laws
may be adopted by the stockholders or by the Board of Directors, when such power
is conferred upon the Board of Directors by the Certificate of Incorporation, at
any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors, if notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting; provided, however, that By-Laws shall not be
adopted, altered, amended or repealed by the stockholders except, in addition to
any other vote required by law, by the vote of the holders of not less than
four-fifths of all classes of stock entitled to vote in the election of
Directors; provided, further, that nothing in this section shall affect the
right of stockholders to set qualifications for Directors as provided in Section
1 of Article NINTH of the Certificate of Incorporation.
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