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Exhibit 3.2
BY-LAWS
OF
SPIEGEL CREDIT CORPORATION III
ARTICLE I
Offices
SECTION (i) The principal office in the State of Delaware shall be
located in the City of Wilmington, County of New Castle.
SECTION (ii) 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 (i) Annual Meetings. An annual meeting of the stockholders
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entitled to vote, for the election of directors and for the transaction of any
other business as to which notice was given in the notice of such meeting, shall
be held in each year commencing in 1995, either (i) at 10:00 a.m. on the last
Tuesday in April, unless such day is a legal holiday, in which event the meeting
shall be held at the same time on the next business day, or (ii) at such other
time and date, not more than thirteen months after the last preceding annual
meeting, as the Board of Directors shall designate.
SECTION (ii) Special Meetings. Special meetings of the stockholders may
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be called at any time by the President or the Board of Directors, and shall be
called by the President or Vice President or the Secretary upon the written
request of the stockholders holding of record in the aggregate forty percent
(40%) or more of the outstanding shares of stock of the Corporation entitled to
vote, such written request to state the purpose or purposes of the meeting and
to be delivered to the President or any Vice President or the Secretary.
SECTION (iii) Place of Meeting. All meetings of the stockholders shall be
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held at such places, within or without the State of Delaware, as shall be
specified in the respective notices or waiver of notice thereof, except as
otherwise required by statute.
SECTION (iv) Notice of Meetings. Except as otherwise required by
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statute, the Secretary or an Assistant Secretary shall cause notice of the time,
place and purpose or purposes of each meeting of the stockholders to be mailed
at least fourteen (but not more than sixty) days prior to the meeting, to each
stockholder of record entitled to vote at his post office address as the same
appears on the books of the Corporation at the time of such mailing. Notice of
any meeting of stockholders
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shall not be required to be given to any person who may become a stockholder of
record after such mailing of such notice and prior to the meeting, or to any
stockholder who shall sign a waiver of such notice in writing, whether before or
after the time of such meeting. Notice of any adjourned meeting of the
stockholders of the Corporation shall not be required to be given, unless
otherwise required by statute.
SECTION (v) Quorum. At all meetings of the stockholders the presence in
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person or by proxy of stockholders holding of record in the aggregate fifty
percent (50%) or more of the outstanding shares of stock entitled to vote shall
be necessary and sufficient to constitute a quorum for the transaction of
business. In the absence of a quorum at any meeting of the stockholders, a
majority in interest of the stockholders of record entitled to vote present in
person or by proxy, or, if no stockholder entitled to vote is present in person
or by proxy, any officer entitled to preside at or act as Secretary of such
meeting, may adjourn such meeting from time to time, until a quorum shall be
present. At any such adjourned meeting at which a quorum may be present any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION (vi) Voting. Each stockholder entitled to vote shall, at every
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meeting of the stockholders, be entitled to one vote in person or by proxy, in
writing and duly executed, for each share of the capital stock 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. Except where the transfer books
of the Corporation have been closed or a date has been fixed as a record date
for the determination of its stockholders entitled to vote, no share of stock
shall be voted on at any election for directors which has been transferred on
the books of the Corporation within twenty days next preceding such election of
directors. At all meetings of the stockholders, all matters, other than those
the manner of deciding which is expressly regulated by statute or by the
Certificate of Incorporation, shall be decided by the vote of a majority in
interest of the stockholders entitled to vote who are present at such meeting in
person or by proxy.
ARTICLE III
Board of Directors
SECTION (i) General Powers. The property, affairs and business of the
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Corporation shall be managed by the Board of Directors.
SECTION (ii) Number, Term of Office and Qualifications. The number of
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directors which shall constitute the whole Board of Directors shall be five,
which number may be increased or diminished by amendment of these By-Laws, but
shall not be diminished to less than five. There shall be at least two
"Independent Directors" (as defined in the following paragraph). The directors
shall be elected annually at the annual meeting of the stockholders, and each
director (whether elected at an annual meeting or to fill a vacancy or
otherwise) shall hold office until his successor shall have been elected, or
until his death or until he shall resign in the manner provided in Section 7 of
this Article III or shall have been removed in the manner provided in Section 8
of this Article III. No person who has attained the age of 70 years shall be
eligible for election as a director of the
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Corporation, but any such person may continue to serve for the unexpired term
for which he was elected. In case of any increase in the number of directors,
additional directors to fill the vacancies in the Board of Directors caused by
such increase may be elected by a majority of the directors then in office,
though less than a quorum. No director need be a stockholder of the Corporation.
The Corporation shall at all times have at least two directors (each, an
"Independent Director") neither of whom is (i) a director, officer or employee
of any affiliate of the Corporation; (ii) a direct or indirect beneficial owner
of more than 10% of the voting securities of any affiliate of the Corporation;
(iii) a significant creditor, or a director, officer or employee of a
significant creditor, of the Corporation or of any affiliate of the Corporation,
provided, that no law firm (or attorney therein) which renders legal services to
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the Corporation or to any of its affiliates shall be deemed to be a "significant
creditor" as a result of fees owed for such legal services; or (iv) a person who
is a spouse, parent, sibling or child of any person disqualified pursuant to
clause (i), (ii) or (iii) above. In the event of the death, incapacity,
resignation, removal or disqualification of any Independent Director which
results in there being less than two Independent Directors serving on the Board
of Directors, a replacement Independent Director shall promptly be elected or
appointed in accordance with the applicable provisions of the By-Laws, and the
Board of Directors shall not vote on any matter until such time as at least two
Independent Directors are serving on the Board of Directors.
SECTION (iii) Election of Directors. At each meeting of the stockholders
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for the election of directors, the directors shall be chosen by a plurality of
the votes given at such election.
SECTION (iv) Annual and Regular Meetings; Notice. The annual meeting of
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the Board of Directors shall be held immediately following the annual meeting of
stockholders. Regular meetings of the Board of Directors shall be held at such
time and place as shall from time to time be determined by the Board of
Directors. Notice of regular meetings shall not be required to be given;
provided, however, that whenever the time or place of regular meetings shall be
fixed or changed, notice of such action shall be delivered personally or by
telephone, telegram, telex or telephone facsimile or mailed promptly to each
member who shall not have been present at the meeting at which such action was
taken, addressed to him at his residence or usual place of business. Notice of
any regular meeting need not be given to any director who shall attend such
meeting in person, or to any director who shall waive notice thereof in writing
or by telegram, telex or telephone facsimile, whether before or after the time
of such meeting and any such meeting shall be a legal meeting without any notice
thereof having been given if all the directors shall be present thereat. No
notice of any adjourned meeting need be given.
SECTION (v) Special Meetings; Notice. Special meetings of the Board of
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Directors shall be held whenever called by any director or the President at such
time and place (within or outside of the State of Delaware) as may be specified
in the respective notices or waivers of notice thereof. Notice of each special
meeting shall be delivered personally to each director or by telephone,
telegram, telex or telephone facsimile addressed to him at his residence or
usual place of business at least ten days before the day on which the meeting is
to be held. Notice of any special meeting need not be given to any director who
shall attend such meeting in person, or to any director
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who shall waive notice thereof in writing or by telegram, telex or telephone
facsimile, whether before or after the time of such meeting; and any such
meeting shall be a legal meeting without any notice thereof having been given if
all the directors shall be present thereat. No notice of any adjourned meeting
need be given.
SECTION (vi) Quorum and Manner of Acting. At all meetings of the Board
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of Directors the presence of a majority of the total number of directors
constituting the whole Board shall be necessary and sufficient to constitute a
quorum for the transaction of business. Except as otherwise required by
provisions in these By-Laws (including but not by limitation, Sections 1, 3, 7
and 8 of Article IV hereof, Section 5 of Article V hereof, and subsection (2) of
Article X hereof), or as may otherwise be required by statute, the act of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. In the absence of a quorum, a
majority of the directors present may adjourn the meeting from time to time
until a quorum shall be present. Any action required or permitted to be taken at
a meeting of the Board of Directors or 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. Members of the Board of
Directors, or of any committee thereof, may participate in any meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.
SECTION (vii) Resignation. Any director may resign at any time by giving
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written notice of such resignation to the Board of Directors, the President or
the Secretary of the Corporation. Unless otherwise specified in such written
notice, such resignation shall take effect upon receipt thereof by the Board of
Directors or any such officer.
SECTION (viii) Removal of Directors. Any director may be removed at any
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time, either for or without cause, by the affirmative vote of a majority in
interest of the stockholders of record of the Corporation entitled to vote,
given at a special meeting of such stockholders called for the purpose or as
otherwise provided by law. Any vacancy in the Board of Directors caused by any
such removal may be filled by such stockholders at such meeting, provided,
however, that in case the stockholders do not fill such vacancy at such meeting,
such vacancy may be filled in the manner provided in Section 9 of this Article
III.
SECTION (ix) Vacancies. If any vacancy shall occur in the Board of
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Directors by reason of death, resignation or removal, the remaining directors
shall continue to act and such vacancy may be filled (subject to the provisions
of Section 8 of this Article III) by a majority of the remaining directors,
though less than a quorum.
SECTION (x) Compensation. The Board of Directors may, by resolution,
fix an annual salary for all or some of the directors for their services as such
and/or may allow directors a fixed sum and traveling expenses for attendance at
each regular or special meeting; provided, however,
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that nothing herein contained shall be construed as prohibiting the payment to
any person who is a director of compensation for services rendered to the
Corporation in any other capacity.
ARTICLE IV
Committees
SECTION (i) Designation. The Board of Directors, by resolution or
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resolutions passed by a majority of the whole Board, may designate one or more
committees, each such committee to consist of two or more of the directors,
which to the extent provided in said resolution or resolutions and to the extent
consistent with the Corporation's Certificate of Incorporation, 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 have power to authorize the seal
of the Corporation to be affixed to all papers which may require it and may
adopt its own rules of procedure. 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, by resolution or resolutions
passed by a majority of the whole board, may designate in addition, one or more
committees which may consist of one or more directors and one or more non-
directors which shall have such duties, responsibilities and powers provided in
the resolution creating such committee. Thereafter, so long as the Board of
Directors shall maintain the existence of such committee or committees, members
thereof shall be designated annually in like manner at the annual meeting of the
Board of Directors. Each member of any such committee shall remain a member of
said committee and shall hold office until his successor shall have been
designated, or until his death, resignation or removal.
SECTION (ii) Designation of Alternate Members. The Board of Directors
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may designate one or more directors as alternate members of each committee who
may replace any absent or disqualified member at any meeting of each committee.
In the resolution designating the committee the Board may also determine that
resolutions can be passed only by unanimous vote of all members of the committee
(including or excluding alternate members).
SECTION (iii) Meetings; Notices; Records. Any committee may hold regular
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and special meetings at such place or places (within or outside the State of
Delaware) and at such time or times at it shall determine from time to time.
Notice of regular meetings shall not be required to be given; provided, however,
that whenever the time or place of regular meetings shall be fixed or changed,
notice of such action shall be delivered personally or by telephone, telegram,
telex or telephone facsimile or mailed promptly to each member who shall not
have been present at the meeting at which such action was taken, addressed to
him at his residence or usual place of business. Notice of any regular meeting
need not be given to any director who shall attend such meeting in person, or to
any director who shall waive notice thereof in writing or by telegram, telex or
telephone facsimile, whether before or after the time of such meeting and any
such meeting shall be a legal meeting without any notice thereof having been
given if all the directors shall be present thereat. No notice of any adjourned
meeting need be given. Notice of each special meeting shall be delivered
personally to each member or by telephone, telegram, telex or telephone
facsimile addressed to him at his residence or usual place of business at least
ten days before the day on which the meeting is
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to be held. Notice of any special meeting need not be given to any member who
shall attend such meeting in person, or who shall waive notice thereof in
writing or by telegram, telex or telephone facsimile, whether before or after
the time of such meeting and any such meeting shall be a legal meeting without
any notice thereof having been given if all the directors shall be present
thereat. No notice of any adjourned meeting need be given. Notice of each
special meeting shall be delivered personally to each member or by telephone,
telegram telex or telephone facsimile addressed to him at his residence or usual
place of business at least ten days before the day on which the meeting is to be
held. Notice of any special meeting need not be given to any member who shall
attend such meeting in person, or who shall waive notice thereof in writing or
by telegram, telex or telephone facsimile, whether before or after the time of
such meeting; and any such meeting shall be a legal meeting without any notice
thereof having been given if all the members shall be present thereat. No notice
of any adjourned meeting need be given. Each committee shall keep a record of
its proceedings.
SECTION (iv) Quorum and Manner of Acting. Except as otherwise provided
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in this Article IV or in the Board resolution creating a committee, the presence
of directors constituting a majority of the membership of the whole committee at
any meeting of any committee shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority of such
directors present at any meeting at which a quorum is present shall be the act
of such committee.
SECTION (v) Resignation. Any member of any committee may resign at any
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time by giving written notice of such resignation to the Board of Directors, the
President or the Secretary of the Corporation. Unless otherwise specified in
such written notice, such resignation shall take effect upon receipt thereof by
the Board of Directors or any such officer.
SECTION (vi) Removal. Any member of any committee may be removed at any
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time, either for or without cause, by a vote of a majority of the directors then
in office passed at any meeting of the Board of Directors.
SECTION (vii) Vacancies. If any vacancy shall occur in any committee by
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reason of disqualification, death, resignation, removal or otherwise, the
remaining members shall continue to act and such vacancy may be filled at any
meeting of the Board of Directors by resolution passed by a majority of the
whole Board.
SECTION (viii) Compensation. The members of any standing committee shall
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not be paid any fixed annual salary for their services as such, but, by
resolution of the Board of Directors, may be allowed a fixed sum and traveling
expenses for attendance at each meeting of such committee; provided, however,
that nothing herein contained shall be construed as prohibiting the payment to
any person who is a member of any such committee of compensation for services
rendered to the Corporation in any other capacity.
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ARTICLE V
Officers
SECTION (i) Number and Qualifications. The officers of the Corporation
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shall be a President, one or more Vice Presidents, a Secretary, a Treasurer, and
such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article V.
SECTION (ii) Elections; Term of Office, Qualification. Each officer
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(except such officers as may be appointed in accordance with the provisions of
Section 3 of this Article V) shall be chosen by the Board of Directors at its
first meeting and thereafter annually at its annual meetings. Each such officer
(whether chosen at an annual meeting of the Board of Directors or to fill in
vacancy or otherwise) shall hold his office until his successor is chosen and
qualified, or until his death, or until he shall resign in the manner provided
in Section 4 of this Article V, or shall be removed in the manner provided in
Section 5 of this Article V. Any officer may but need not be a Director of the
Corporation. Any two or more offices may be held by the same person.
SECTION (iii) Subordinate Officers; Appointment. The Board of Directors
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from time to time may appoint such other officers or agents as it may deem
necessary or advisable, to hold office for such period, have such authority and
perform such duties as the Board of Directors from time to time may determine.
The Board of Directors may delegate to any officer or agent the power to appoint
any such subordinate officers or agents and to prescribe their respective terms
of office, authorities and duties.
SECTION (iv) Resignations. Any officer may resign at any time by giving
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written notice of such resignation to the Board of Directors, the President or
the Secretary of the Corporation. Unless otherwise specified in such written
notice, such resignation shall take effect upon receipt thereof.
SECTION (v) Removal. The officers specifically designated in Section 1
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of this Article V may be removed, either for or without cause, at any meeting of
the Board of Directors, by the vote of a majority of the whole Board, or by any
superior officer or agent upon whom such power of removal shall have been
conferred by a majority of the whole Board of Directors.
SECTION (vi) Vacancies. A vacancy in any office by reason of death,
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resignation, removal, disqualification or any other cause, shall be filled in
the manner provided in this Article V for regular election or appointment to
such office.
SECTION (vii) The President. The President shall be the chief executive
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officer of the Corporation; shall have general supervision over its affairs,
shall sign such contracts, bonds and other instruments of the Corporation as may
be necessary, from time to time, in the conduct of the business of the
Corporation; shall have general authority to make lease contracts and employ
management agents and employees as may be needed to operate the business of the
Corporation; and,
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in the absence of the Chairman of the Board of Directors, shall preside at all
meetings of stockholders and directors; provided, however, that the acts of the
President shall be subject to review by the Board of Directors.
SECTION (viii) The Vice Presidents. During the absence or disability of
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the President and the Chairman of the Board of Directors, the Vice Presidents,
in the order designated by the Board of Directors, shall exercise all the
functions of the President. Each Vice President shall have such powers and
discharge such duties as may be assigned to him from time to time by the Board
of Directors.
SECTION (ix) The Secretary. The Secretary shall:
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(a) record all the proceedings of the meetings of the stockholders,
Board of Directors, Board Committee and other standing committees in a book
to be kept for that purpose;
(b) cause all notices to be duly given in accordance with the
provisions of these By-Laws and as required by statute;
(c) whenever any Committee shall be appointed in pursuance of a
resolution of the Board of Directors, furnish the Chairman of such
Committee with a copy of such resolution;
(d) be the custodian of the records and of the seal of the
Corporation, and cause such seal to be affixed to all certificates
representing stock of the Corporation prior to the issuance thereof and to
all instruments the execution of which on behalf of the Corporation under
the seal shall have been duly authorized in accordance with these By-Laws;
(e) see that the lists, books, reports, statements, certificates and
other documents and records required by statute are properly prepared, kept
and filed;
(f) have charge of the stock books of the Corporation and cause the
stock and transfer books to be kept in such manner as to show at any time
the amount of stock of the Corporation of each class issued and
outstanding, the manner in which and the time when such stock was paid for,
the names alphabetically arranged and the addresses of the holders of
record thereof, the number of shares held by each and the time when each
became such holder of record;
(g) sign (unless the Treasurer, an Assistant Treasurer or an
Assistant Secretary shall sign) certificates representing stock of the
Corporation the issuance of which shall have been authorized by the Board
of Directors; and,
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(h) in general, perform all duties incident to the office of
Secretary and such other duties as are given to him by these By-Laws or as
from time to time may be assigned to him by the Board of Directors or the
President.
SECTION (x) The Treasurer. The Treasurer shall:
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(a) have charge of and supervision over and be responsible for the
funds, securities, receipts and disbursements of the Corporation;
(b) cause the moneys and other valuable effects of the Corporation to
be deposited in the name and to the credit of the Corporation in such banks
or trust companies or with such bankers or other depositories as shall be
selected by him;
(c) cause the funds of the Corporation to be disbursed by checks or
drafts upon the authorized depositories of the Corporation, and cause to be
taken and preserved proper vouchers for all moneys disbursed;
(d) render to the proper officers or the Board of Directors or any
standing committee whenever requested, a statement of the financial
condition of the Corporation and of all his transactions as Treasurer, and
render a full financial report at the annual meeting of the stockholders,
if called upon to do so;
(e) cause to be kept at the principal business offices of the
Corporation correct books of account of all its business and transactions;
(f) sign (unless the Secretary, an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been authorized by the Board
of Directors; and,
(g) in general, perform all duties incident to the office of
Treasurer, including the day-to-day coordination of collection, segregation
and payment of corporate funds by the servicer under any Pooling and
Servicing Agreement between the Corporation and such servicer, and such
other duties as are given to him by these By-Laws or as from time to time
may be assigned to him by the Board of Directors or the President.
SECTION (xi) Surety Bonds. In case the Board of Directors shall so
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require, any officer or agent of the Corporation shall execute to the
Corporation a bond in such sum and with such surety or sureties as the Board of
Directors may direct, conditioned upon the faithful performance of his duties to
the Corporation, including responsibility for negligence and for the accounting
for all property, funds or securities of the Corporation which may come into his
hands.
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ARTICLE VI
Execution of Instruments, Borrowing of Money
and Deposit of Corporate Funds
SECTION (i) Execution of Instruments. The President and any Vice
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President, subject to the approval of the Board of Directors, may enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation. The Board of Directors may authorize any officer or officers, or
agent or agents, to enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation, and such authorization
may be general or confined to specific instances.
SECTION (ii) Loans. No loans or advances shall be contracted on behalf
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of the Corporation and no negotiable paper shall be issued in its name, unless
and except as authorized by the Board of Directors. Such authorization may be
general or confined to special instances. Any officer or agent of the
Corporation thereunto so authorized may effect loans and advances for the
Corporation, and for such loans and advances may make, execute and deliver
promissory notes, bonds or other evidences of indebtedness of the Corporation.
Any officer or agent of the Corporation thereunto so authorized may pledge,
hypothecate or transfer as security for the payment of any and all loans,
advances, indebtedness and liabilities of the Corporation, any and all stocks,
bonds, other securities and other personal property at any time held by the
Corporation, and to that end may endorse, assign and deliver the same and do
every act and thing necessary or proper in connection therewith.
SECTION (iii) Notes; Checks; Other Instruments. All notes, drafts,
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acceptances, checks, endorsements and all evidences of indebtedness of the
Corporation whatsoever, shall be signed by such officer or officers or such
agent or agents of the Corporation and in such manner as the Board of Directors
from time to time may determine. Endorsements for deposit to the credit of the
Corporation in any of its duly authorized depositories shall be made in such
manner as the Board of Directors from time to time may determine.
SECTION (iv) Proxies. Proxies to vote with respect to shares of stock of
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other corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
President or a Vice President and the Secretary or an Assistant Secretary of the
Corporation or by any other person or persons thereunto authorized by the Board
of Directors.
ARTICLE VII
Shares of Stock
SECTION (i) Certificates of Stock. Every holder of stock in the
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Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by the President or a Vice President, and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary,
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certifying the number of shares owned by him in the Corporation; provided,
however, that, where such certificate is signed by a transfer agent or an
assistant transfer agent or by a transfer clerk acting on behalf of the
Corporation and a registrar, the signature of any such President, Vice
President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary, if
the Board of Directors so directs, may be facsimile. In case any such
certificates shall be for shares only a part of the consideration to be paid for
which shall have been paid, such certificate shall state that it represents
partly paid shares, and shall show on the face or back thereof the amount of the
consideration that shall have been paid in on the shares represented thereby and
when the remainder of the consideration for such shares shall be payable.
Certificates representing shares of stock of the Corporation shall be in such
form as shall be approved by the Board of Directors and the seal of the
Corporation shall be affixed thereto. There shall be entered upon the stock
books of the Corporation at the time of issuance of each share the number of the
certificate issued, the name of the person owning the shares represented
thereby, the number and class of such shares and the date of issuance thereof.
Every certificate exchanged or returned to the Corporation shall be marked
"cancelled," with the date of cancellation.
SECTION (ii) Transfer of Stock. Transfers of shares of the stock of the
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Corporation shall be made on the books of the Corporation by the holder of
record thereof, or by his attorney thereunto duly authorized by a power of
attorney duly executed in writing and filed with the Secretary of the
Corporation or any of its transfer agents, and on surrender of the certificate
or certificates representing such shares. The Corporation and transfer agents
and registrars, if any, shall be entitled to treat the holder of record of any
share or shares of stock as the absolute owner thereof for all purposes, and
accordingly shall not be bound to recognize any legal, equitable or other claim
to or interest in such share or shares on the part of any other person whether
or not it or they shall have express or other notice thereof, except as
otherwise expressly provided by the statutes of the State of Delaware.
SECTION (iii) Regulations. Subject to the provisions of this Article VII
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the Board of Directors may make such rules and regulations as they may deem
expedient concerning the issuance, transfer and registration of certificates for
shares of the stock of the Corporation.
SECTION (iv) Transfer Agents and Registrars. The Board of Directors may
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appoint one or more transfer agents and one or more registrars with respect to
the certificates representing shares of stock of the Corporation, and may
require all such certificates to bear the signature of either or both.
SECTION (v) Closing of Transfer Books and Fixing of Record Date. The
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Board of Directors shall have power to close the stock transfer books of the
Corporation for a period not exceeding fifty days preceding the date of any
meeting of stockholders, or the date for payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect. In lieu of closing the stock
transfer books as aforesaid, the Board of Directors may fix in advance a date,
not exceeding fifty days preceding the date of any meeting of stockholders, or
the date for payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall go
into effect,
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as a record date for the determination of the stockholders entitled to notice
of, and to vote at, any such meeting, or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, and in such
case such stockholders and only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting, or to receive payment of such dividend or to receive such
allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
SECTION (vi) Lost or Destroyed Certificates. The holder of any shares of
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stock of the Corporation shall immediately notify the Corporation and its
transfer agents and registrars, if any, of any loss or destruction of the
certificate representing the same. The Corporation may issue a new certificate
in the place of any certificate theretofore issued by it alleged to have been
lost or destroyed, and the Board of Directors may require the owner of the lost
or destroyed certificate or his legal representatives to give the Corporation a
bond in such sum as the Board of Directors may direct, and with such surety or
sureties as may be satisfactory to the Board of Directors to indemnify the
Corporation and its transfer agents and registrars, if any, against any claim
that may be made against it or any such transfer agent or registrar on account
of the alleged loss or destruction of any such certificate. A new certificate
may be issued without requiring any bond when, in the judgment of the Board of
Directors, it is proper to do so.
ARTICLE VII
Corporate Seal
The corporate seal shall be circular in form and shall bear the name of the
Corporation and words denoting its organization under the Laws of the State of
Delaware and otherwise shall be in such form as shall be approved from time to
time by the Board of Directors.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of January
in each year and shall end on the thirty-first day of the following December.
ARTICLE X
Amendments
All By-Laws of the Corporation shall be subject to alteration or repeal,
and new By-Laws may be made in accordance with the provisions of the Certificate
of Incorporation, either (1) by the affirmative vote of stockholders holding of
record in the aggregate at least a majority of the outstanding shares of stock
of the Corporation entitled to vote given at any annual or special meeting, or
(2) by the affirmative vote of at least a majority of the whole Board of
Directors given at any regular or special meeting, provided, however, that all
such modifications are expressly
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subject to the provisions of the Certificate of Incorporation including, but not
in limitation, paragraph Ninth thereof.
ARTICLE XI
Indemnification of Officers, Directors,
Employees and Agents; Insurance
(a) The Corporation shall indemnify subject to the requirements of
Subsection (d) any 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,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including attorneys' fees),
judgments, fines, penalties, taxes and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) The Corporation shall indemnify subject to the requirements of
Subsection (d) any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Corporation, or a director, officer, employee, fiduciary or agent of any other
enterprise serving at the request of the Corporation, has been successful on the
merits or otherwise in defense of any action, suit
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or proceeding referred to in Subsections (a) and (b), or in defense of any
claim, issue or matter therein, the Corporation shall indemnify him against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under Subsections (a) and (b) (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee,
fiduciary or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Subsections (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred by a director, officer, employee, fiduciary or agent
in defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer, employee,
fiduciary or agent to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Section.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other Subsections of this Section shall not limit the
Corporation from providing any other indemnification permitted by law nor shall
it be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
(g) The provisions of this Section shall be applicable to all actions,
suits or proceedings pending at the time or commenced after the adoption of this
Section, whether arising from acts or omissions to act occurring, or based on
claims asserted, before or after the adoption of this Section. A finding that
any provision of this Section is invalid or of limited application shall not
affect any other provision of this Section nor shall a finding that any portion
of any provision of this Section is invalid or of limited application affect the
balance of such provision.
(h) The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Section.
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(i) All terms contained in this Section shall have the meaning given to
them by Section 145 of the Delaware General Corporation Law.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
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