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EXHIBIT 3.2
BY-LAWS
OF
CENTRAL GARDEN DISTRIBUTION INC.
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ARTICLE I
OFFICES
Section 1. Registered Office.......................................... 1
Section 2. Other Offices.............................................. 1
ARTICLE II
STOCKHOLDERS
Section 1. Stockholder Meetings........................................ 1
Section 2. Determination of Stockholders Entitled to Notice and to Vote 2
Section 3. Voting...................................................... 2
Section 4. List of Stockholders........................................ 3
Section 5. Action By Consent of Stockholders........................... 3
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers.............................................. 4
Section 2. Election of Directors....................................... 4
Section 3. Meetings of the Board of Directors.......................... 5
Section 4. Action without Meeting...................................... 6
Section 5. Compensation of Directors................................... 6
Section 6. Committees of the Board..................................... 7
ARTICLE IV
OFFICERS
Section 1. Officers................................................... 8
Section 2. Chairman of the Board of Directors......................... 8
Section 3. President.................................................. 8
Section 4. Vice Presidents............................................ 9
Section 5. Secretary and Assistant Secretaries........................ 9
Section 6. Treasurer and Assistant Treasurers......................... 9
ARTICLE V
INDEMNIFICATION AND INSURANCE
Section 1. Actions Against Directors and Officers..................... 10
Section 2. Contract................................................... 10
Section 3. Nonexclusivity............................................. 10
Section 4. Indemnification of Employee and Agents..................... 11
Section 5. Insurance.................................................. 11
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ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares.................................... 11
Section 2. Transfer................................................... 11
Section 3. Record Owner............................................... 12
Section 4. Lost Certificates.......................................... 12
ARTICLE VII
MISCELLANEOUS
Section 1. Record Date................................................ 12
Section 2. Execution of Instruments................................... 13
Section 3. Voting of Securities Owned by the Corporation.............. 13
Section 4. Corporate Seal............................................. 13
Section 5. Construction and Definitions............................... 13
Section 6. Amendments................................................. 13
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BY-LAWS
OF
CENTRAL GARDEN DISTRIBUTION INC.
ARTICLE I
OFFICES
Section 1. Registered Office.
The registered office of the Corporation in the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, State of Delaware. The name of the registered agent is
The Corporation Trust Company. Such registered agent has a business office
identical with such registered office.
Section 2. Other Offices.
The Corporation also may 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
STOCKHOLDERS
Section 1. Stockholder Meetings.
(a) Time and Place of Meetings. Meetings of the stockholders shall be
held at such times and places, either within or without the State of Delaware,
as may from time to time be fixed by the Board of Directors and stated in the
notices or waivers of notice of such meetings.
(b) Annual Meeting. The annual meeting of the stockholders shall be
held on such date and at such time as may be designated by the Board of
Directors, for the election of directors and the transaction of such other
business properly brought before such annual meeting of the stockholders and
within the powers of the stockholders.
(c) Special Meetings. Special meetings of the stockholders of the
Corporation, for any purpose or purposes, may be called at any time by the
Chairman of the Board of Directors, the President of the Corporation, or the
Board of Directors, or at the request in writing of stockholders owning not less
than ten percent (10%) of the voting power of the Corporation. Business
transacted at any special meeting of the stockholders shall be limited to the
purposes stated in the notice of such meeting.
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(d) Notice of Meetings. Except as otherwise provided by law, the
Certificate of Incorporation or these By-laws, written notice of each meeting of
the stockholders shall be given not less than ten (10) days nor more than sixty
(60) calendar days before the date of such meeting to each stockholder entitled
to vote thereat, directed to such stockholder's address as it appears upon the
books of the Corporation, such notice to specify the place, date, hour and, in
the case of a special meeting, the purpose or purposes of such meeting. When a
meeting of the stockholders is adjourned to another time and/or place, notice
need not be given of such adjourned meeting if the time and place thereof are
announced at the meeting of the stockholders at which the adjournment is taken,
unless the adjournment is for more than thirty (30) days or unless after the
adjournment a new record date is fixed for such adjourned meeting, in which
event a notice of such adjourned meeting shall be given to each stockholder of
record entitled to vote thereat. Notice of the time, place and purpose of any
meeting of the stockholders may be waived in writing either before or after such
meeting and will be waived by any stockholder by such stockholder's attendance
thereat in person or by proxy. Any stockholder so waiving notice of such a
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
(e) Quorum. Except as otherwise required by law, the Certificate of
Incorporation or these By-laws, the holders of not less than a majority of the
shares entitled to vote at any meeting of the stockholders, present in person or
by proxy, shall constitute a quorum and the affirmative vote of the majority of
such quorum shall be deemed the act of the stockholders. If a quorum shall fail
to attend any meeting of the stockholders, the presiding officer of such meeting
may adjourn such meeting from time to time to another place, date or time,
without notice other than announcement at such meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting of the stockholders as originally noticed. The foregoing
notwithstanding, if a notice of any adjourned special meeting of the
stockholders is sent to all stockholders entitled to vote thereat which states
that such adjourned special meeting will be held with those present in person or
by proxy constituting a quorum, then, except as otherwise required by law, those
present at such adjourned special meeting of the stockholders shall constitute a
quorum and all matters shall be determined by a majority of the votes cast at
such special meeting.
Section 2. Determination of Stockholders Entitled to Notice and to
Vote.
To determine the stockholders entitled to notice of any meeting of the
stockholders or to vote thereat, the Board of Directors may fix in advance a
record date as provided in Article VII, Section 1 of these By-laws, or if no
record date is fixed by the Board of Directors, a record date shall be
determined as provided by law.
Section 3. Voting.
(a) Except as otherwise required by law, the Certificate of
Incorporation or these By-laws, each stockholder present in person or by proxy
at a meeting of the stockholders shall be entitled to one vote for each full
share of stock registered in the name of such
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stockholder at the time fixed by the Board of Directors or by law as the record
date for the determination of stockholders entitled to vote at such meeting.
(b) Every stockholder entitled to vote at a meeting of the
stockholders may do so either in person or by one or more agents authorized by a
written proxy executed by the person or such stockholder's duly authorized agent
whether by manual signature, typewriting, telegraphic transmission or otherwise.
(c) Voting may be by voice or by ballot as the presiding officer of
the meeting of the stockholders shall determine. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by such stockholder's
proxy, and shall state the number of shares voted.
(d) In advance of any meeting of the stockholders, the Board of
Directors may appoint one or more persons as inspectors of election
("Inspectors") to act at such meeting. If Inspectors are not so appointed, or if
an appointed Inspector fails to appear or fails or refuses to act at a meeting
of the stockholders, the presiding officer of any such meeting may, and at the
request of any stockholder or such stockholder's proxy shall, appoint Inspectors
at such meeting. Such Inspectors shall take charge of the ballots at such
meeting. After the balloting thereat on any question, the Inspectors shall count
the ballots cast thereon and make a written report to the secretary of such
meeting of the results thereof. An Inspector need not be a stockholder of the
Corporation and any officer of the Corporation may be an Inspector on any
question other than a vote for or against such officer's election to any
position with the Corporation or of any other questions in which such officer
may be directly interested. If there are three Inspectors, the determination
report or certificate of two such Inspectors shall be effective as if
unanimously made by all Inspectors.
Section 4. List of Stockholders.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make available, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, showing the address of and the number of shares
registered in the name of each such stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to such meeting, during
ordinary business hours, for a period of at least ten (10) days prior to such
meeting, either at a place within the city where such meeting is to be held and
which place shall be specified in the notice of such meeting, or, if not so
specified, at the place where such meeting is to be held. The list also shall
be produced and kept at the time and place of the meeting of the stockholders
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Action By Consent of Stockholders.
Except as otherwise restricted by law or the Certificate of
Incorporation, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action
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at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers.
Unless otherwise provided by law, the Certificate of Incorporation or
these By-laws, all corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation shall be managed by, the
Board of Directors.
Section 2. Election of Directors.
(a) Number, Qualification and Term of Office. The authorized number
of directors of the Corporation shall be fixed from time to time by the Board of
Directors. The exact number of directors shall be determined from time to time,
either by a resolution or By-law provision duly adopted by the Board of
Directors. Except as otherwise required by law, the Certificate of Incorporation
or these By-laws, each of the directors of the Corporation shall be elected at
the annual meeting of the stockholders and each director so elected shall hold
office until such director's successor is elected or until such director's
death, resignation or removal. Directors need not be stockholders.
(b) Vacancies. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent director. Unless
otherwise restricted by law or by the certificate of Incorporation, newly
created directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from death, resignation
removal or other cause may be filled by the affirmative vote of a majority of
the remaining directors then in office, even though less than a quorum of the
Board of Directors, or by the stockholders. Any director elected in accordance
with the preceding sentence shall hold office until the next annual meeting of
the stockholders and until such director's successor shall have been elected, or
until such director's death, resignation or removal.
(c) Resignation. Any director may resign from the Board of Directors
at any time by giving written notice thereof to the Chairman of the Board, the
President or the Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein, or, if the time when such resignation
shall become effective shall not be so specified, then such resignation shall
take effect immediately upon its receipt by the Secretary; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
(d) Removal. Except as provided in the Certificate of Incorporation,
any director of the Corporation may be removed from office with or without
cause, but only by the affirmative vote of the holders of not less than a
majority of the outstanding capital stock of the
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Corporation entitled to vote generally in the election of directors, voting
together as a single class.
Section 3. Meetings of the Board of Directors.
(a) Regular Meetings. Regular meetings of the Board of Directors
shall be held without call at the following times :
(i) at such times as the Board of Directors shall from time to
time by resolution determine; and
(ii) immediately following the adjournment of any annual or
special meeting of the stockholders.
Notice of all such regular meetings hereby is dispensed with.
(b) Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board of Directors, by the President, by any
Vice President, by the Board of Directors or by any two (2) directors. Notice of
the time and place of special meetings of the Board of Directors shall be given
by the Secretary or an Assistant Secretary of the Corporation, or by any other
officer authorized by the Board of Directors. Such notice shall be given to each
director personally or by mail, messenger, telephone, telecopy, telegraph or any
other form of recorded communication at such director's business or residence
address. Notice by mail shall be deposited in the United States mail postage
prepaid, not later than the third day prior to the date filed for such special
meeting. Notice by telephone, telecopy or telegraph shall be sent, and notice
given personally or by messenger or any other form of recorded communication
shall be delivered, at least twenty-four (24) hours prior to the time set for
such special meeting. Notice of a special meeting of the Board of Directors need
not contain a statement of the purpose of such special meeting.
(c) Adjourned Meetings. A majority of directors present at any
regular or special meeting of the Board of Directors or any committee thereof,
whether or not constituting a quorum, may adjourn any meeting from time to time
until a quorum is present or otherwise. Notice of the time and place of holding
any adjourned meeting shall not be required if the time and place are fixed at
the meeting adjourned.
(d) Place of Meetings. Meetings of the Board of Directors, both
regular and special, may be held at any place within or without the state of
Delaware which has been designated in the notice of the meeting or, if not
stated in the notice or if there is no notice, designated by resolution of the
Board of Directors. In the absence of any such designation, meetings of the
Board of Directors shall be held at the Corporation's principal executive
office.
(e) Participation by Telephone. Members of the Board of Directors or
any committee thereof may participate in any meeting of the Board of Directors
or committee through the use of conference telephone or similar communications
equipment, so long as all
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members participating in such meeting can hear one another, and such
participation shall constitute presence in person at such meeting.
(f) Quorum. At all meetings of the Board of Directors or any
committee thereof, a majority of the total number of directors then in office or
such committee, shall constitute a quorum for the transaction of business and
the act of a majority of the directors present at any such meeting at which
there is a quorum shall be the act of the Board of Directors or any committee
thereof, except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these By-laws. A meeting of the Board of
Directors or any committee thereof at which a quorum initially is present may
continue to transact business notwithstanding the withdrawal of directors so
long as any action is approved by at least a majority of the required quorum for
such meeting.
(g) Waiver of Notice. The transactions of any meeting of the Board of
Directors or any committee thereof, however called and noticed or wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice, if a quorum be present and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, or a consent to
hold such meeting, or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting. Notice of a special meeting will be automatically
waived by any director's attendance or participation at such meeting.
Section 4. Action without Meeting.
Any action required or permitted to be taken by the Board of Directors
at any meeting thereof or at any meeting of a committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee
thereof consent thereto in writing and the writing or writings are filed with
the minutes of the proceedings of the Board of Directors or such committee
thereof.
Section 5. Compensation of Directors.
Unless otherwise restricted by law, the Certificate of Incorporation
or these By-laws, the Board of Directors shall have the authority to fix the
compensation of directors. 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 committees of the Board of Directors may be allowed like compensation for
attending committee meetings.
Section 6. Committees of the Board.
(a) Committees. The Board of Directors may, by resolution adopted by
a majority of the Board of Directors, designate one or more committees of the
Board of Directors, each committee to consist of one or more directors. Each
such committee, to the extent permitted by law, the Certificate of Incorporation
and these By-laws, shall have and may exercise such of
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the powers of the Board of Directors in the management and affairs of the
Corporation as may be prescribed by the resolutions creating such committee.
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. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. The Board of Directors shall have the
power, at any time for any such reason, to change the members of any such
committee, to fill vacancies, and to discontinue any such committee.
(b) Minutes of Meetings. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
(c) Limits on Authority of Committees. No committee shall have the
power or authority in reference to amending the Certificate of Incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board
of Directors as provided in Section 151(a) of the General Corporation Law of the
State of Delaware, fix the designations and any of the preferences or rights of
such shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation, or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of stock or
authorize the increase or decrease of the shares of any series), adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending any provision of these By-laws; nor,
unless the resolutions establishing such committee or the Certificate of
Incorporation expressly so provide, shall have the power or authority to declare
a dividend, to authorize the issuance of stock, to adopt a certificate of
ownership and merger, or to fill vacancies in the Board of Directors.
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ARTICLE IV
OFFICERS
Section 1. Officers.
(a) Number. The officers of the Corporation shall be chosen by the
Board of Directors and shall include a Chairman of the Board of Directors, a
President, Vice Presidents (including any Executive, Senior and/or First Vice
President as the Board of Directors may determine from time to time), a
Secretary and a Treasurer. The Board of Directors also may appoint one or more
Assistant Secretaries or Assistant Treasurers and such other officers and agents
with such powers and duties as it shall deem necessary. Any Vice President may
be given such specific designation as may be determined from time to time by the
Board of Directors. Any number of offices may be held by the same person, unless
otherwise required by law, the Certificate of Incorporation or these By-laws.
(b) Election and Term Office. The officers shall be elected annually
by the Board of Directors at its regular meeting following the annual meeting of
the stockholders and each officer shall hold office until the next annual
election of officers and until such officer's successor is elected, or until
such Officer's death, resignation or removal. Any officer may be removed at any
time, with or without cause, by a vote of the majority of the Board of
Directors. Any vacancy occurring in any office may be filled by the Board of
Directors.
(c) Delegation of Authority. The Board of Directors may from time to
time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Section 2. Chairman of the Board of Directors.
The Chairman of the Board of Directors shall preside at meetings of
the stockholders and the Board of Directors. Unless otherwise designated by the
Board of Directors, the Chairman of the Board shall be the chief executive
officer of the Corporation. Subject to the provisions of these By-laws and to
the direction of the Board of Directors, he or she shall have the responsibility
for the general management and control of the business and affairs of the
Corporation and shall perform all duties and have all powers that are commonly
incident to the office of chief executive or that are delegated to him or her by
the Board of Directors. He or she shall have power to sign all stock
certificates, contracts and other instruments of the Corporation that are
authorized and shall have general supervision and direction of all of the
duties, employees and agents of the Corporation.
Section 3. President.
In the absence of the Chairman of the Board, or if there is none, the
President shall preside at meetings of the stockholders and the Board of
Directors. The President shall assume and perform the duties of the Chairman of
the Board in the absence or disability of the Chairman of the Board or whenever
the office of the Chairman of the Board is vacant. Subject to
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the provisions of these By-laws and to the direction of the Board of Directors
and the Chairman of the Board, he or she shall have responsibility for the day-
to-day operations of the Corporation and shall perform all duties and have all
powers that are commonly incident to the office of chief operating officer or
that are delegated to him or her by the Board of Directors or the Chairman of
the Board.
Section 4. Vice Presidents.
The Vice Presidents shall have such powers and perform such duties as
from time to time may be prescribed for them, respectively, by the Board of
Directors or by the President.
Section 5. Secretary and Assistant Secretaries.
The Secretary shall record or cause to be recorded, in books provided
for the purpose, minutes of the meetings of the stockholders, the Board of
Directors and all committees of the Board of Directors; see that all notices are
duly given in accordance with the provisions of these By-laws as required by
law; be custodian of all corporate records (other than financial) and of the
seal of the Corporation, and have authority to affix the seal to all documents
requiring it and attest to the same; give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors;
and, in general, shall perform all duties incident to the office of Secretary
and such other duties as may, from time to time, be assigned to him by the Board
of Directors or by the President. At the request of the Secretary, or in the
Secretary's absence or disability, any Assistant Secretary shall perform any of
the duties of the Secretary and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Secretary.
Section 6. Treasurer and Assistant Treasurers.
The Treasurer shall keep or cause to be kept the books of account of
the Corporation and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board of Directors or
the President. The Treasurer shall perform all other duties commonly incident
to his office and shall perform such other duties and have such other powers as
the Board of Directors or the President shall designate from time to time. At
the request of the Treasurer, or in the Treasurer's absence or disability, any
Assistant Treasurer may perform any of the duties of the Treasurer and, when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the Treasurer. Except where by law the signature of the Treasurer is
required, each of the Assistant Treasurers shall possess the same power as the
Treasurer to sign all certificates, contracts, obligations and other instruments
of the Corporation.
ARTICLE V
INDEMNIFICATION AND INSURANCE
Section 1. Actions Against Directors and Officers.
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The Corporation shall indemnify to the fullest extent permitted by,
and in the manner permissible under, the laws of the State of Delaware any
person made, or threatened to be made, a party to an action or proceeding,
whether criminal, civil, administrative or investigative (a "Proceeding"), by
reason of the fact that such person or such person's testator or intestate is or
was a director or officer of the Corporation or any predecessor of the
Corporation, or served any other enterprise as a director or officer at the
request of the Corporation or any predecessor of the Corporation (the
"Indemnitee"), including without limitation, all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the Indemnitee in connection with such Proceeding.
In furtherance and not in limitation of the foregoing provisions, all
reasonable expenses incurred by or on behalf of the Indemnitee in connection
with any Proceeding shall be advanced to the Indemnitee by the Corporation
within 20 calendar days after the receipt by the Corporation of a statement or
statements from the Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred by the
Indemnitee and, if required by law at the time of such advance, shall include or
be accompanied by an undertaking by or on behalf of the Indemnitee to repay the
amounts advanced if it should ultimately be determined that the Indemnitee is
not entitled to be indemnified against such expenses pursuant to this Article V.
Section 2. Contract.
The provisions of Section 1 of this Article V shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while such By-law is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts.
Section 3. Nonexclusivity.
The rights of indemnification provided by this Article V shall not be
deemed exclusive of any other rights to which any director or officer of the
Corporation may be entitled apart from the provisions of this Article V.
Section 4. Indemnification of Employee and Agents.
The Board of Directors in its discretion shall have the power on
behalf of the Corporation to indemnify any person, other than a director or
officer, made a party to any action, suit or proceeding-by reason of the fact
that such person or such person's testator or intestate, is or was an employee
or agent of the Corporation.
Section 5. Insurance.
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Upon a resolution or resolutions duly adopted by the Board of
Directors of the Corporation, the Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation against any liability asserted against such person and
incurred by him in any capacity, or arising out of his capacity as such, whether
or not the Corporation would have the power to indemnify such person against
such liability under the provisions of applicable law, the Certificate of
Incorporation or these By-laws.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares.
Unless otherwise provided by a resolution of the Board of Directors,
the shares of the Corporation shall be represented by a certificate. The
certificates of stock of the Corporation shall be numbered and shall be entered
in the books of the Corporation as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by or in the name of the
Corporation by (a) the Chairman of the Board of Directors, the President or any
Vice President and (b) the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimile. In case any officer of the Corporation, transfer agent or registrar
who has signed, or whose facsimile signature has been placed upon such
certificate, shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate 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 issuance.
Section 2. Transfer.
Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 3. Record Owner.
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof, and, accordingly, shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of the State of
Delaware.
Section 4. Lost Certificates.
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
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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 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.
ARTICLE VII
MISCELLANEOUS
Section 1. Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, 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 prior to the
date of such meeting nor more than sixty (60) days prior to any other action. If
not fixed by the Board of Directors, the record date shall be determined as
provided by law.
(b) A determination of stockholders of record entitled to notice of
or to vote at a meeting of the stockholders shall apply to any adjournments of
the meeting, unless the Board of Directors fixes a new record date for the
adjourned meeting.
(c) Holders of stock on the record date are entitled to notice and to
vote or to receive the dividend, distribution or allotment of rights or to
exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by law, the Certificate of Incorporation or
these By-laws.
Section 2. Execution of Instruments.
The Board of Directors may, in its discretion, determine the method
and designate the signatory officer of officers, or other persons, to execute
any corporate instrument or document or to sign the corporate name without
limitation, except where otherwise provided by law, the Certificate of
Incorporation or these By-laws. Such designation may be general or confined to
specific instances.
Section 3. Voting of Securities Owned by the Corporation.
All stock and other securities of other corporations held by the
Corporation shall be voted, and all proxies with respect thereto shall be
executed, by the person so authorized by resolution of the Board of Directors,
or, in the absence of such authorization, by the President.
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Section 4. Corporate Seal.
The Corporation shall have a corporate seal in such form as shall be
prescribed and adopted by the Board of Directors.
Section 5. Construction and Definitions.
Unless the context requires otherwise, the general provisions, rules
of construction and definitions in the General Corporation Law of the State of
Delaware shall govern the construction of these By-laws.
Section 6. Amendments.
These By-laws may be altered, amended or repealed or new By-laws may
be adopted by the stockholders at any meeting or by the Board of Directors.
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