SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 12,1997
NOODLE KIDOODLE, INC.
(Exact name of registrant as specified in its charter)
Commission File No. 01-06083
Delaware 11-1771705
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
6801 Jericho Turnpike, Suite 100, Syosset, NY 11791-4427
(Address of principal executive offices)
(Zip Code)
(516) 677-0500
(Registrant's telephone number, including area code)
105 Price Parkway, Farmingdale, NY 11735
(Registrant's Former Address)
<PAGE>
NOODLE KIDOODLE INC.
FORM 8-K
CURRENT REPORT
TABLE OF CONTENTS
Item 5. Other Event
Item 7. Exhibit
Signature
<PAGE>
ITEM 5. Other Event
On November 12, 1997, the Board of Directors voted unanimously to
amend and restate the by-laws of Noodle Kidoodle, Inc.
ITEM 7. Exhibit
3.1 Amended and Restated By-laws of Noodle Kidoodle, Inc.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
NOODLE KIDOODLE, INC.
Date: November 21, 1997 /S/ Kenneth S. Betuker
Kenneth S. Betuker
Vice President
Chief Financial Officer
Secretary
Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
NOODLE KIDOODLE, INC.
(A Delaware Corporation)
ARTICLE I
Stockholders
Section 1. Place of Meetings. Meetings of stockholders shall be held
at such place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The annual meeting of stockholders shall
be held at 10:00 o'clock A.M. on the first Tuesday in July in each year, or at
such other time as the Board of Directors, in its discretion, may determine,
which time and date may subsequently be changed at any time, subject to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), by vote of the Board of Directors. If no annual meeting has been held
for a period of thirteen months after the Corporation's last annual meeting of
stockholders, a special meeting in lieu thereof may be held if called as
provided in these By-laws, and such special meeting shall have, for the
purposes of these By-Laws or otherwise, all the force and effect of an annual
meeting.
Section 3. Matters to be Considered at Annual Meetings. At any annu-
al meeting of stockholders or any special meeting in lieu of the annual meeting
of stockholders (the "Annual Meeting"), only such business shall be conducted,
and only such proposals shall be acted upon as shall have been properly brought
before such Annual Meeting. To be considered as properly brought before an
Annual Meeting, business must be: (a) specified in the notice of meeting, (b)
otherwise properly brought before the meeting by, or at the direction of, the
Board of Directors, or (c) otherwise properly brought before the meeting by any
holder of record (both as of the time notice of such proposal is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of capital stock of the Corporation entitled to vote
on such business at such Annual Meeting (each a "Record Holder") and who
complies with the requirements set forth in this Section 3.
In addition to any other applicable requirements, for business to
be properly brought before an Annual Meeting by a Record Holder, such Record
Holder shall: (i) give timely notice as required by this Section 3 to the
Secretary of the Corporation, and (ii) be present at such meeting, either in
person or by a representative. A Record Holder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its principal
executive office not less than 75 days nor more than 120 days prior to the
anniversary date of the immediately preceding Annual Meeting (the "Anniversary
Date"); provided, however, that in the event the Annual Meeting is scheduled to
be held on a date more than 30 days before the Anniversary Date or more than 60
days after the Anniversary Date, a stockholder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its principal
executive office not later than the close of business on the later of (A) the
75th day prior to the scheduled date of such Annual Meeting, or (B) the 15th
day following the day on which public announcement of the date of such Annual
Meeting is first made by the Corporation.
For purposes of these By-laws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service, (ii) a report or other
document filed publicly with the Securities and Exchange Commission (including,
without limitation, a Form 8-K), or (iii) a letter or report sent to Record
Holders of the Corporation at the close of business on the day of the mailing
of such letter or report.
A Record Holder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an Annual Meeting: (i) a brief
description of the business the Record Holder desires to bring before such
Annual Meeting and the reasons for conducting such business at such Annual
Meeting, (ii) the name and address, as they appear on the Corporation's stock
transfer books, of the Record Holder proposing such business, (iii) the class
and number of shares of the Corporation's capital stock beneficially owned by
the Record Holder proposing such business, (iv) the names and addresses of the
beneficial owners, if any, of any capital stock of the Corporation registered
in such Record Holder's name on such books, and the class and number of shares
of the Corporation's capital stock beneficially owned by such beneficial
owners, (v) the names and addresses of other Record Holders known by the Record
Holder proposing such business to support such proposal, and the class and
number of shares of the Corporation's capital stock beneficially owned by such
other Record Holders, and (vi) any material interest of the Record Holder
proposing to bring such business before such meeting (or any other Record
Holders known to be supporting such proposal) in such proposal.
If the Board of Directors or a designated committee thereof deter-
mines that any Record Holder proposal was not made in a timely fashion in
accordance with the provisions of this Section 3 or that the information
provided in a Record Holder's notice does not satisfy the information
requirements of this Section 3 in any material respect, such proposal shall not
be presented for action at the Annual Meeting in question. If neither the
Board of Directors nor such committee makes a determination as to the validity
of any Record Holder proposal. notice of which is given to the Secretary in
the manner set forth in this Section 3, the presiding officer of the Annual
Meeting shall determine whether the Record Holder proposal was made in
accordance with the terms of this Section 3. If the presiding officer
determines that any Record Holder proposal was not made in a timely fashion in
accordance with the provisions of this Section 3 or that the information
provided in a Record Holder's notice does not satisfy the information
requirements of this Section 3 in any material respect, such proposal shall not
be presented for action at the Annual Meeting in question. If the Board of
Directors, a designated committee thereof or the presiding officer determines
that a Record Holder proposal was made in accordance with the requirements of
this Section 3, the presiding officer shall so declare at the Annual Meeting
and ballots shall be provided for use at the meeting with respect to such
proposal.
Notwithstanding the foregoing provisions of this By-Law, a Record
Holder 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 By-Law, and nothing in this By-Law shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation's proxy
statement, or the Corporation's right to refuse inclusion thereof, pursuant to
Rule 14a-8 under the Exchange Act.
Section 4. Special Meetings. Except as otherwise required by law and
subject to the rights, if any, of the holders of any one or more series of
preferred stock, special meetings of the stockholders of the Corporation may
be called only by the Chairman of the Board, the President of the Corporation,
the Vice Chairman of the Board or the Board of Directors pursuant to a
resolution approved by the affirmative vote of a majority of the Directors then
in office.
Section 5. Matters to be Considered at Special Meetings. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
Section 6. Notice of Meetings; Adjournments. A written notice of all
Annual Meetings stating the hour, date and place of such Annual Meetings shall
be given by the Secretary (or other person authorized by these By-Laws or by
law) not less than 10 days nor more than 60 days before the Annual Meeting, to
each stockholder entitled to vote thereat and to each stockholder who, by law
or under the Certificate of Incorporation of the Corporation or under these By-
Laws, is entitled to such notice, by delivering such notice to him or her or by
mailing it, postage prepaid, addressed to such stockholder at the address of
such stockholder as it appears on the Corporation's stock transfer books. Such
notice shall be deemed to be delivered when hand delivered to such address or
deposited in the mail so addressed, with postage prepaid.
Notice of all special meetings of stockholders shall be given in the
same manner as provided for Annual Meetings, except that the written notice of
all special meetings shall state in general terms the purpose or purposes for
which the meeting has been called.
Notice of an Annual Meeting or special meeting of stockholders need
not be given to a stockholder if a written waiver of notice is signed before or
after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance was for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any Annual Meeting or special meeting of stockholders need
be specified in any written waiver of notice.
The Board of Directors may postpone and reschedule any previously
scheduled Annual Meeting or special meeting of stockholders and any record date
with respect thereto, regardless of whether any notice or public disclosure
with respect to any such meeting has been sent or made pursuant to Section 3 of
this Article I or Section 3 of Article II of these By-laws or otherwise. In no
event shall the public announcement of an adjournment, postponement or
rescheduling of any previously scheduled meeting of stockholders commence a new
time period for the giving of a stockholder's notice under Section 3 of this
Article I or Section 3 of Article II of these By-laws.
When any meeting is convened, the presiding officer may adjourn the
meeting if (a) no quorum is present for the transaction of business, (b) the
Board of Directors determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available to
stockholders, or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any Annual Meeting or
special meeting of stockholders is adjourned to another hour, date or place,
notice need not be given of the adjourned meeting other than an announcement at
the meeting at which the adjournment is taken of the hour, date and place to
which the meeting is adjourned, provided, however, that if the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat and each stockholder who,
by law or under the Corporation's Certificate of Incorporation or these By-
Laws, is entitled to such notice.
Section 7. Quorum; Adjournments of Meetings. The holders of a major-
ity of the issued and outstanding shares of the capital stock of the Corpora-
tion entitled to vote at a meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at such meeting; but,
if there be less than a quorum, the holders of a majority of the stock so
present or represented may adjourn the meeting to another time or place, from
time to time, until a quorum shall be present, whereupon the meeting may be
held, as adjourned, without further notice, except as required by law.
Section 8. Voting and Proxies. Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record according to the
books of the Corporation, unless otherwise provided by law or by the
Certificate of Incorporation. Stockholders may vote either in person or by
written proxy, but no proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. Proxies shall be
filed with the Secretary of the meeting before being voted. Except as other-
wise limited therein or as otherwise provided by law, proxies shall entitle the
persons authorized thereby to vote at any adjournment of such meeting. A proxy
with respect to stock held in the name of two or more persons shall be valid if
executed by or on behalf of any one of them unless at or prior to the exercise
of the proxy the Corporation receives a specific written notice to the contrary
from any one of them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid, and the burden of proving invalidity shall
rest on the challenger.
Section 9. Action at Meeting. When a quorum is present, any matter
before any meeting of stockholders shall be decided by the vote of a majority
of the voting power of shares of voting stock, present in person or represented
by proxy at such meeting and entitled to vote on such matter, except where a
higher proportion of the voting power of shares of voting stock is required by
law, by the Certificate of Incorporation or by these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast, except where
a higher proportion of the voting power of shares of voting stock is required
by law, by the Certificate of Incorporation or by these By-Laws. The
Corporation shall not directly or indirectly vote any shares of its own stock;
provided, however, that the Corporation may vote shares which it holds in a
fiduciary capacity to the extent permitted by law.
Section 10. Stockholders' Action Without Meetings. Any action
that is required or permitted to be taken at any meeting of the stockholders
may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing 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 at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation
in accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware.
Section 11. Record Date. The Board of Directors may fix a record
date not more than sixty or less than ten days prior to the day of holding any
meeting of stockholders as the day as of which stockholders entitled to notice
of and to vote at such meeting shall be determined; and only stockholders of
record on such day shall be entitled to notice of or to vote at such meeting.
The Board of Directors may fix a record date not more than ten days after the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, determining the stockholders entitled to consent to corporate
action in writing without a meeting; and only stockholders of record on such
day shall be entitled to so consent.
Section 12.Presiding Officer. The Chairman of the Board or, in his or
her absence, the President shall preside at all meetings of the stockholders.
In the absence of both the Chairman of the Board and the President, a majority
of the members of the Board of Directors present in person at such meeting may
appoint any other officer or director to act as Chairman of the meeting. The
presiding officer shall have the power, among other things, to adjourn such
meeting at any time and from time to time, subject to Sections 6 and 7 of this
Article I. The order of business and all other matters of procedure at any
meeting of the stockholders shall be determined by the presiding officer.
Section 13. Secretary of Meetings. The Secretary or an Assistant
Secretary of the Corporation shall act as secretary of all meetings of the
stockholders. In the absence of the Secretary or an Assistant Secretary, the
presiding officer shall appoint any other person to act as secretary of the
meeting.
Section 14. Voting Procedures and Inspectors of Elections. The
Corporation shall, in advance of, or at, 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 presiding officer shall appoint one or
more inspectors to act at the meeting. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. No candidate for the office of
director shall be appointed as an inspector at any meeting for the election of
directors. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall perform such duties as are required by the
General Corporation Law of the State of Delaware, as amended from time to time,
including the counting of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors. The presiding officer may review all
determinations made by the inspector(s), and in so doing the presiding officer
shall be entitled to exercise his or her sole judgment and discretion and he or
she shall not be bound by any determinations made by the inspector(s). All
determinations by the inspector(s) and, if applicable, the presiding officer
shall be subject to further review by any court of competent jurisdiction.
ARTICLE II
Board of Directors
Section 1. Powers. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors except as
otherwise provided by the Certificate of Incorporation or required by law.
Section 2. Number and Terms. Subject to such number of Directors, if
any, who may be elected by the holders of any series of preferred stock, as
provided in, or pursuant to, the Certificate of Incorporation, the Board of
Directors shall consist of eight (8) members which, as provided in the
certificate of incorporation shall be divided into three classes. Class 1
shall consist of three (3) directors, Class 2 shall consist of three (3)
directors, and Class 3 shall consist of two (2) directors. At each annual
meeting directors to replace those whose terms expire at such annual meeting
shall be elected to hold office until the third succeeding annual meeting and
until their successors are duly elected and qualified or until their earlier
death, disqualification, resignation or removal.
Section 3. Director Nominations. Nominations of candidates for
election as Directors of the Corporation at any Annual Meeting may be made only
(a) by, or at the direction of, the Board of Directors or (b) by any Record
Holder (both as of the time notice of such nomination is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) who complies with the timing, informational and other requirements
set forth in this Section 3. Any stockholder who seeks to make such a
nomination or his or her representative must be present in person at the Annual
Meeting. Only persons nominated in accordance with the procedures set forth in
this Section 3 shall be eligible for election as Directors at an Annual
Meeting.
Nominations, other than those made by, or at the direction of, the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. A Record Holder's
notice shall be timely if delivered to, or mailed to and received by, the
Corporation at its principal executive office not less than 75 days nor more
than 120 days prior to the Anniversary Date; provided, however, that in the
event the Annual Meeting is scheduled to be held on a date more than 30 days
before the Anniversary Date or more than 60 days after the Anniversary Date, a
Record Holder's notice shall be timely if delivered to, or mailed and received
by, the Corporation at its principal executive office not later than the
close of business on the later of (i) the 75th day prior to the scheduled date
of such Annual Meeting or (ii) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
A Record Holder's notice to the Secretary shall set forth as to each
person whom the Record Holder proposes to nominate for election or re-election
as a Director: (i) the name, age, business 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's capital stock which are
beneficially owned by such person on the date of such Record Holder notice,
(iv) the consent of each nominee to serve as a Director if elected, and (v)
such information concerning such person as is required to be disclosed
concerning a nominee for election as Director of the Corporation pursuant to
the rules and regulations under the Exchange Act. A Record Holder's notice to
the Secretary shall further set forth as to the Record Holder giving such
notice: (i) the name and address, as they appear on the Corporation's stock
transfer books, of such Record Holder and of the beneficial owners (if any) of
the Corporation's capital stock registered in such Record Holder's name and the
name and address of other Record Holders known by such Record Holder to be
supporting such nominee(s), (ii) the class and number of shares of the
Corporation's capital stock which are held of record, beneficially owned or
represented by proxy by such Record Holder and by any other Record Holders
known by such Record Holder to be supporting such nominee(s) on the date of
such Record Holder's notice, and (iii) a description of all arrangements or
understandings between such Record Holder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such Record Holder or in connection therewith.
If the Board of Directors or a designated committee thereof determ-
ines that any stockholder nomination was not timely made in accordance with the
terms of this Section 3 or that the information provided in a stockholder's
notice does not satisfy the informational requirements of this Section 3 in any
material respect, then such nomination shall not be considered at the Annual
Meeting in question. If neither the Board of Directors nor such committee
makes a determination as to whether a nomination was made in accordance with
the provisions of this Section 3, the presiding officer of the Annual Meeting
shall determine whether a nomination was made in accordance with such
provisions. If the presiding officer determines that any stockholder nomina-
tion was not timely made in accordance with the terms of this Section 3 or that
the information provided in a stockholder's notice does not satisfy the
informational requirements of this Section 3 in any material respect, then such
nomination shall not be considered at the Annual Meeting in question. If the
Board of Directors, a designated committee thereof or the presiding officer
determines that a nomination was made in accordance with the terms of this
Section 3, the presiding officer shall so declare at the Annual Meeting and
such nominee shall be eligible for election at the meeting.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 3. Election of Directors at the Annual Meeting need not be by
written ballot, unless otherwise provided by the Board of Directors or the
presiding officer at such Annual Meeting. If written ballots are to be used,
ballots bearing the names of all the persons who have been nominated for
election as Directors at the Annual Meeting in accordance with the procedures
set forth in this Section shall be provided for use at the Annual Meeting.
Section 4. Qualification. No Director need be a stockholder of the
Corporation.
Section 5. Vacancies. Subject to the rights of the holders of any
one or more series of preferred stock to elect Directors, any and all vacancies
occurring on the Board of Directors, including, without limitation, any vacancy
created by reason of an increase in the number of Directors, or resulting from
death, resignation, disqualification, removal or other causes, may be filled by
the affirmative vote of a majority of the remaining Directors then in office,
even if such remaining Directors constitute less than a quorum of the Board of
Directors, or if such vacancy is not so filled by the remaining Directors, by
the stockholders of the Corporation. Any Director appointed or elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been duly elected and qualified or until his or her earlier death,
disqualification, resignation or removal. No decrease in the number of
Directors shall shorten the term of any incumbent Director unless such Director
is removed as permitted in the Certificate of Incorporation. In the event of a
vacancy in the Board of Directors, the remaining Directors, except as otherwise
provided by law, may exercise the powers of the full Board of Directors until
the vacancy is filled.
Section 6. First Meeting. The first meeting of each newly elected
Board of Directors, of which no notice shall be necessary, shall be held
immediately following the Annual Meeting or any adjournment thereof at the
place the Annual Meeting was held at which such directors were elected, or at
such other place as a majority of the members of the newly elected Board who
are then present shall determine, for the election or appointment of officers
for the ensuing year and the transaction of such other business as may be
brought before such meeting.
Section 7. Resignation. A Director may resign at any time by giving
written notice to the Chairman of the Board, the President or the Secretary. A
resignation shall be effective upon receipt, unless the resignation otherwise
provides. Acceptance of a resignation by the remaining members of the Board of
Directors is not required for the resignation to become effective.
Section 8. Regular Meetings. Regular meetings of the Board of
Directors, other than the first meeting, may be held without notice at such
times and places as the Board of Directors may from time to time determine.
Section 9. Special Meetings. Special meetings of the Board of
Directors may be called by order of the Chairman of the Board, the President or
any two directors. The person or persons calling any such special meeting of
the Board of Directors may fix the hour, date and place thereof. Except as
otherwise specified in the notice thereof, or as required by statute, the
Certificate of Incorporation or these By-Laws, any and all business may be
transacted at any special meeting.
Section 10. Notice of Meetings. Notice of the hour, date and place
of each special meeting of the Board of Directors or its committees, if any,
shall be given to each Director, or each Director who is a member of the
committee being called to meet, by the Secretary or the person or persons
calling the meeting. Notice of each special meeting of the Board of Directors
or its committees, if any, shall be given to each Director, or each Director
who is a member of the committee being called to meet, in person, by telephone,
or by telex, telecopy, telegram, or other written form of electronic
communication, sent to his or her business or home address (with receipt of
such electronic communication confirmed by telephone), at least 24 hours in
advance of the meeting, or by written notice sent by next-day delivery courier
service to his or her business or home address, at least 48 hours in advance of
the meeting. Such notice shall be deemed to be delivered when hand delivered
to such address, read to such Director by telephone, deposited in the mail so
addressed, with postage thereon prepaid if mailed, dispatched or transmitted if
telexed or telecopied, or when delivered to the telegraph company if sent by
telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given
as in the case of an original meeting. It shall not be necessary to give any
notice of the hour, date or place of any meeting adjourned for less than 30
days or of the business to be transacted thereat, other than an announcement at
the meeting at which such adjournment is taken of the hour, date and place to
which the meeting is adjourned.
A written waiver of notice signed before or after a meeting by a
Director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because such meeting is not lawfully
called or convened. Except as otherwise required by law, by the Certificate of
Incorporation or by these By-Laws, neither the business to be transacted at,
nor the purpose of, any meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting.
Section 11. Quorum. At any meeting of the Board of Directors, a
majority of the Directors then in office (but in no event less than one-third
of the total number of Directors) shall constitute a quorum for the transaction
of business, but if less than a quorum is present at a meeting, a majority of
the Directors present may adjourn the meeting from time to time, and the
meeting may be held as adjourned without further notice, except as otherwise
provided in Section 10 of this Article II. Any business which might have been
transacted at the meeting as originally noticed may be transacted at such
adjourned meeting at which a quorum is present.
Section 12. Action at Meeting. At any meeting of the Board of
Directors at which a quorum is present, a majority of the Directors present may
take any action on behalf of the Board of Directors, unless otherwise required
by law, by the Certificate of Incorporation or by these By-Laws.
Section 13. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board of Directors consent thereto in writing. Such
written consent shall be filed with the records of the meetings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
Section 14. Manner of Participation. Directors may participate in
meetings of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all Directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these By-Laws.
Section 15. Organization. Every meeting of the Board of Directors
shall be presided over by the Chairman of the Board, or, in his or her absence,
the President. In the absence of the Chairman of the Board and the President,
a presiding officer shall be chosen by a majority of the directors present.
The Secretary of the Corporation shall act as secretary of the meeting, or the
presiding officer may appoint any person to act as secretary of the meeting.
Section 16. Executive and Other Committees. The Board of Directors
by resolution adopted by a majority of the entire Board, may desig-nate from
among its members three or more directors to constitute an Executive Committee,
who shall serve during the pleasure of the Board of Directors. Except as
otherwise provided by law, by these by-laws, or by resolution adopted by a
majority of the entire Board of Directors, the Executive Committee shall
possess and may exercise during the intervals between the meetings of the
directors all of the powers of the Board of Directors in the management of the
business affairs and property of the Corporation, including, without limita-
tion, the power to cause the seal of the Corporation to be affixed to all
papers that may require it.
The Executive Committee may choose its own Chairman and its Secretary
and may adopt rules for its procedure. The Executive Committee shall keep a
record of its acts and proceedings and report the same from time to time to the
Board of Directors.
Meetings of the Executive Committee may be called by the Chairman of
the Committee and shall be called by him or her at the request of any member of
the Executive Committee; if there shall be no chairman, meetings may be called
by any member of the Executive Committee. Notice of each meeting of the
Executive Committee shall be sent to each member of the Executive Committee
according to the procedure set forth in Section 10 of this Article II.
A majority of the Executive Committee shall constitute a quorum for
the transaction of business, and the act of a majority of those present at the
meeting at which a quorum is present shall be the act of the Executive
Committee.
Any member of the Executive Committee may be removed, with or without
cause, at any time, by the Board of Directors.
Any vacancy in the Executive Committee shall be filled by the Board
of Directors.
The Board of Directors may, by resolution adopted by a majority of
the entire Board, provide for such other standing or special committees as it
deems desirable and discontinue the same at its pleasure. Each committee shall
have such powers and perform such duties, not inconsistent with law, as may be
assigned to it by the Board of Directors.
ARTICLE III
Officers
Section 1. General. The Board of Directors shall elect the officers
of the Corporation, which shall include a Chairman of the Board, a President, a
Secretary and a Treasurer and such other or additional officers (including,
without limitation, one or more Vice-Chairmen of the Board, Vice-Presidents,
Assistant Vice-Presidents, Assistant Secretaries and Assistant Treasurers) as
the Board of Directors may designate.
Section 2. Qualification. No officer need be a stockholder or a
Director. Any person may occupy more than one office of the Corporation at any
time. Any officer may be required by the Board of Directors to give bond for
the faithful performance of his or her duties in such amount and with such
sureties as the Board of Directors may determine.
Section 3. Tenure. Except as otherwise provided by the Certificate
of Incorporation or by these By-Laws, each of the officers of the Corporation
shall hold office until his or her successor is elected and qualified or until
his or her earlier death, disqualification, resignation or removal.
Section 4. Resignation. Any officer may resign by delivering his or
her written resignation to the Corporation addressed to the President or the
Secretary, and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other event.
Section 5. Removal. Except as otherwise provided by law, the Board
of Directors may remove any officer with or without cause by the affirmative
vote of a majority of the Directors then in office.
Section 6. Absence or Disability. In the event of the absence or
disability of any officer, the Board of Directors may designate another
officer to act temporarily in place of such absent or disabled officer.
Section 7. Vacancies. Any vacancy in any office may be filled for
the unexpired portion of the term by the Board of Directors.
Section 8. Powers and Duties. Each of the officers of the Corpora-
tion including, but not limited to the Chairman of the Board shall, unless
otherwise ordered by the Board of Directors, have such powers and duties as
generally pertain to his or her respective office as well as such powers and
duties as from time to time may be conferred upon him or her by the Board of
Directors. Unless otherwise ordered by the Board of Directors after the
adoption of these By-Laws, the Chairman of the Board, or, when the office of
Chairman of the Board is vacant, the President, shall be the chief executive
officer of the Corporation.
ARTICLE IV
Capital Stock
Section 1. Certificates of Stock. Certificates for stock of the
Corporation shall be in such form as the Board of Directors may from time to
time prescribe and shall be signed by the Chairman of the Board or a 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. The
corporate seal and the signatures by Corporation officers, the transfer agent
or the registrar may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed on such
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 or she were such officer, transfer agent or registrar at
the time of its issue. Every certificate for shares of stock which are subject
to any restriction on transfer and every certificate issued when the Corpora-
tion is authorized to issue more than one class or series of stock shall con-
tain such legend with respect thereto as is required by law.
Section 2. Transfer of Stock. Shares of capital stock of the
Corporation shall be transferable on the books of the Corporation only by the
holder of record thereof, in person or by duly authorized attorney, upon
surrender and cancellation of certificates for a like number of shares, with an
assignment or power of transfer endorsed thereon or delivered therewith, duly
executed, and with such proof of the authenticity of the signature and of
authority to transfer, and of payment of transfer taxes, as the Corporation or
its agents may require.
Section 3. Ownership of Stock. Except as may otherwise be required
by law, by the Certificate of Incorporation or by these By-Laws, the Corpora-
tion shall be entitled to treat the record holder of stock as shown on its books
as the owner of such stock for all purposes, including the payment of
dividends and the right to vote with respect thereto, regardless of any
transfer, pledge or other disposition of such stock, until the shares have been
transferred on the books of the Corporation in accordance with the requirements
of these By-Laws. The Corporation shall not be bound to recognize any equita-
ble or other claim to or interest in such shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise express-ly provided by law.
Section 4. Record Date. So that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof or entitled to receive payments 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 a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date: (1) in the case of determination of stockholders entitled to vote at any
meeting of stockholders, shall, unless otherwise required by law, not be more
than sixty nor less than ten days before the date of such meeting, and (2) in
the case of any other action, shall not be more than sixty days prior to such
other action. If no record date is fixed: (1) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which
the meeting is held, and (2) the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
ARTICLE V
Indemnification
All persons, including but not limited to each person who is or was a
director or officer of the Corporation or of any of its wholly-owned
subsidiaries, whom the Corporation is empowered to indemnify pursuant to the
provisions of Section 145 of the General Corporation Law of the State of
Delaware as currently in force or subsequently amended (but, in the case of any
amendment of the General Corporation Law of the State of Delaware, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) shall be indemnified by the Corporation to the full extent
permitted thereby. The foregoing right of indemnification shall include,
without limitation, indemnification for any such person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, or was or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), or, if not a party, if any such person is made to
respond as a custodian of documents or in any manner related thereto, by reason
of the fact that he or she is or was a director, officer, employee or agent of
the Corporation or of any of its subsidiaries, or is or was at any time on or
after such date serving, at the request of the Corporation, as a director,
officer, employee or agent of any other corporation, partnership, joint ven-
ture, trust, employee benefit plan or other enterprise in any capacity against
all expense, liability and loss (including, but not limited to, attorneys'
fees, judgments, fines, excise taxes or penalties (with respect to any employee
benefit plan or otherwise), and amounts paid or to be paid in settlement)
incurred or suffered by such director or officer in connection with such
proceeding.
The foregoing right of indemnification shall not be deemed to be exclusive
of any other such rights to which those seeking indemnification from the
Corporation may be entitled, including, but not limited to, any rights of
indemnification to which they may be entitled pursuant to any agreement,
insurance policy, other by-law or charter provision, vote of stockholders or
directors, or otherwise.
Subject to any provision of the Certificate of Incorporation or the law to
the contrary, expenses incurred by a Director or Officer of the Corporation in
any case in which he or she is entitled to be indemnified shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such Director or
Officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation. Such expenses incurred by
other employees or agents of the Corporation may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
No repeal or amendment of this Article V shall adversely affect any rights
of any person pursuant to this Article V which existed at the time of such
repeal or amendment with respect to acts or omissions occurring prior to such
repeal or amendment.
For purposes of this Article V, the term "Corporation" shall include, in
addition to the surviving corporation, any constituent corporation (including
any constituent of a constituent) absorbed by the Corporation in a consolida-
tion or merger; as used herein, the term "other enterprise" shall include any
corporation, partnership, limited liability company, joint venture, trust or
employee benefit plan;service "at the request of the Corporation" shall include
service as a Director, Officer or employee of the Corporation which imposes
duties on, or involves service by, such Director, Officer or employee with
respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan
shall be deemed to be indemnifiable expenses; and action by a person with
respect to any employee benefit plan which such person reasonably believes to
be in the interest of the participants and beneficiaries of such plan shall be
deemed to be action in or not opposed to the best interests of the Corporation.
ARTICLE VI
Miscellaneous
Section 1. Corporate Seal. The seal of the Corporation shall be
circular in form and shall contain the name of the Corporation and the year and
State of incorporation.
Section 2. Fiscal Year. The fiscal year of the Corporation shall end
on the Saturday closest to January 31.
Section 3. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Board of Directors
action may be executed on behalf of the Corporation by the Chairman of the
Board, the President, the Chief Financial Officer, any Executive Vice
President, or any other officer, employee or agent of the Corporation as the
Board of Directors may authorize.
Section 4. Power to Vote Stock. Unless otherwise ordered by the
Board of Directors, the Chairman of the Board and the President each shall have
full power and authority on behalf of the Corporation to attend and to vote at
any meeting of stockholders of any Corporation in which this Corporation may
hold stock, and may exercise on behalf of this Corporation any and all of the
rights and powers incident to the ownership of such stock at any such meeting
and shall have power and authority to execute and deliver proxies, waivers and
consents on behalf of the Corporation in connection with the exercise by the
Corporation of the rights and powers incident to the ownership of such stock.
The Board of Directors, from time to time, may confer like powers upon any
other person or persons.
Section 5. Corporate Records. The original or attested copies of the
Certificate of Incorporation, By-Laws and records of all meetings of the
incorporators, stockholders and the Board of Directors and the stock transfer
books, which shall contain the names of all stockholders, their record address-
es and the amount of stock held by each, may be kept outside the State of
Delaware and shall be kept at the principal office of the Corporation, at the
office of its counsel or at an office of its transfer agent or at such other
place or places as may be designated from time to time by the Board of
Directors.
Section 6. Amendment. The Board of Directors shall have the power to
make, alter or repeal the By-Laws of the Corporation subject to the power of
the stockholders to alter or repeal the By-Laws made or altered by the Board of
Directors.
