WGM DRAFT 06/16/97
FORM OF
EDISON BROTHERS STORES, INC.
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AMENDED AND RESTATED BY-LAWS
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ARTICLE I.
OFFICES
SECTION 1. Registered office in Delaware. The registered
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office of the Corporation in the State of Delaware shall be in the City of
Dover, County of Kent.
SECTION 2. Other Offices. The principal executive offices of
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the Corporation shall be in St. Louis, Missouri. The Corporation may also have
offices in such other places as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of the stockholders
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shall be held at the executive offices of the Corporation in St. Louis,
Missouri, or at such other place as may be designated by the Board of Directors
or, in the case of a special meeting called by the Chairman of the Board or the
President, by the person calling the meeting.
SECTION 2. Annual Meetings. An annual meeting of the
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stockholders, for the election of directors and for the transaction of such
other business as may properly come before the meeting, shall be held on the
second Wednesday in June of each year at 11:00 A.M., Central Time, or on such
other date or at such other time as the Board of Directors may designate.
Written notice of an annual meeting of stockholders, stating
the place, date and hour of the meeting, shall be mailed to each stockholder
entitled to
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vote thereat, at such address as appears on the records of the Corporation, not
less than ten nor more than sixty (60) days prior to the date of the meeting.
At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (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 a stockholder. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not later than ninety (90) days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the date of the annual
meeting is advanced by more than thirty (30) days from such anniversary date,
then, to be considered timely, notice by the stockholder must be received not
later than the close of business on the tenth day following the date on which
notice of such meeting was mailed to stockholders. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (c) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder, and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the By-laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 2. The presiding officer of an annual meeting shall,
if the facts warrant, determine that business was not properly brought before
the meeting in accordance with the provisions of this Section 2, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
SECTION 3. Special Meetings. Except as otherwise required by
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law and subject to the rights of the
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holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, special meetings of the stockholders
may be called only by the Chairman of the Board, the President, or the Board of
Directors pursuant to a resolution approved by a majority of the entire Board of
Directors, and shall be called by the President or Secretary upon the written
request of the holders of at least 51% of the outstanding shares of Common
Stock.
Written notice of a special meeting of the stockholders,
stating the place, date and hour of the meeting, and the purpose or purposes for
which the meeting is called, shall be mailed to each stockholder entitled to
vote thereat, at such address as appears on the records of the Corporation, not
less than ten nor more than sixty (60) days prior to the date of the meeting.
The business transacted at any special meeting of the
stockholders shall be confined to the purpose or purposes stated in the call.
SECTION 4. Organization. Each meeting of the stockholders
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shall be presided over by the Chairman of the Board, or, in the absence of the
Chairman, by the President; if neither is present, the meeting shall be presided
over by a chairman to be chosen at the meeting. The Secretary of the Corporation
shall act as secretary of the meeting; if he is not present, the secretary of
the meeting shall be such person as the presiding officer appoints.
SECTION 5. Voting. At each meeting of the stockholders, each
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stockholder shall have one vote for each share of stock having voting power
registered in his name on the books of the Corporation. Each stockholder having
the right to vote may vote in person or by proxy appointed either by an
instrument in writing or by a transmission permitted by Section 212(c)(2) of the
Delaware General Corporation Law subscribed or transmitted, as the case may be,
by such stockholder or by his authorized agent, except that no proxy shall be
voted after three years from its date unless such proxy provides for a longer
period.
SECTION 6. Quorum. At all meetings of the stockholders, the
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presence, in person or by proxy, of the holders of record of a majority of the
shares issued and outstanding and entitled to vote thereat shall constitute a
quorum for the transaction of business, except as otherwise
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provided by law, by the Restated Certificate of
Incorporation or by these By-Laws.
In the absence of a quorum, the holders of record of a majority of the shares
present in person or by proxy and entitled to vote at the meeting may adjourn
the meeting from time to time until a quorum is present. No notice need be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken, unless the adjournment is for more
than thirty (30) days or a new record date is fixed for the adjourned meeting,
in which event a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote thereat. At any such adjourned meeting at
which a quorum is present, any business may be transacted that might have been
transacted at the meeting as originally called.
SECTION 7. Vote Required for Action. At each meeting of the
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stockholders, if a quorum is present, the affirmative vote of the holders of a
majority of the shares represented in person or by proxy and entitled to vote
shall decide all matters brought before the meeting, except as otherwise
provided by law, by the Restated Certificate of Incorporation or by these
By-Laws.
SECTION 8. List of Stockholders. A complete list of the
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stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in his name, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting at the place
where the meeting is to be held. The list shall also be kept at the place of the
meeting during the whole time thereof and shall be open to inspection by any
stockholder who is present.
ARTICLE III.
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the
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Corporation shall be managed by or under the direction of the Board of
Directors. Except as otherwise provided by law, by the Restated Certificate of
Incorporation or by these By-Laws, the Board of Directors
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may exercise all powers and do all such acts and things as may be exercised or
done by the Corporation.
SECTION 2. Number, Election, Term of Office and Qualification.
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Unless and until changed by amendment to this By-Law, the number of directors
constituting the Board of Directors shall be nine (9); provided, however, that
if and whenever by the terms and provisions of the Restated Certificate of
Incorporation the holders of any class of stock other than the common stock
shall be entitled to elect additional directors, the number of directors shall
be increased in accordance with the terms and provisions of the Restated
Certificate of Incorporation; and if and whenever the common stock shall become
revested with the exclusive voting right for the election of directors, the
number of directors shall be reduced by the number of additional directors
chosen by the holders of such other class of stock. Directors need not be
stockholders. All elections of directors by the holders of the common stock
shall be by a plurality of the votes cast. Except as otherwise provided in this
Article III, the directors to be chosen by the holders of the common stock shall
be elected at the annual meeting of the stockholders. Each such director shall
continue in office until the annual meeting of the stockholders held next after
his election and until his successor shall have been elected and shall qualify,
or until his earlier resignation or removal. The directors, if any, to be chosen
by the holders of any class of stock other than the common stock shall be
elected in the manner, and their tenure of office shall be limited, as set forth
in the Restated Certificate of Incorporation.
Subject to the rights of holders of any class or series of
stock having a preference over the common stock as to dividends or upon
liquidation, nominations for the election of directors may be made by the Board
of Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of directors generally. However,
any stockholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors at a meeting only if the
stockholder has given timely notice in writing to the Secretary of the
Corporation of such stockholder's intent to make such nomination or nominations.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not later than (i) with
respect to an election to be held at an annual meeting of stockholders, ninety
(90)
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days prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the date of the
annual meeting is advanced by more than thirty (30) days from such anniversary
date, then, to be considered timely, notice by the stockholder must be received
not later than the close of business on the tenth day following the date on
which notice of such meeting was mailed to stockholders, and (ii) with respect
to an election to be held at a special meeting of stockholders for the election
of directors, the close of business on the tenth day following the date on which
notice of such meeting was mailed to stockholders. Each such notice shall set
forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder 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 the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission had the
nominee been nominated by the Board of Directors; and (e) the consent of each
nominee to serve as a director of the Corporation, if so elected. The presiding
officer of the meeting shall refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure.
SECTION 3. Resignation. Any director may resign at any time by
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written notice to the Corporation, addressed to the attention of the Chairman of
the Board, the President or the Secretary. Unless otherwise specified therein,
such resignation shall take effect on receipt thereof.
SECTION 4. Vacancies. If the position of any director elected,
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or entitled to be elected, by the holders of the common stock becomes vacant by
reason of death, resignation, removal, increase in the number of directors or
otherwise, such vacancy may be filled by the vote of a majority of the remaining
directors elected, or entitled to be elected, by the holders of the common
stock, though less than a quorum. If the position of any director elected, or
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entitled to be elected, by the holders of stock other than the common stock
becomes vacant by reason of death, resignation, removal from office (otherwise
than by reason of the revesting in the common stock of the exclusive voting
right for the election of directors), or otherwise, such vacancy may be filled
by the vote of a majority of the remaining directors elected, or entitled to be
elected, by the holders of such stock other than the common stock, though less
than a quorum.
SECTION 5. Annual and Regular Meetings. As soon as practicable
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after the annual meeting of the stockholders in each year, an annual meeting of
the Board of Directors shall be held for the election of officers and for the
transaction of such other business as may properly come before the meeting.
Annual and regular meetings of the Board of Directors may be
held at such times and places (within or without the State of Delaware) as the
Board may from time to time determine. No notice of any such meeting need be
given.
SECTION 6. Special Meetings. A special meeting of the Board of
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Directors may be called at any time by the Chairman of the Board or by the
President, and shall be called by the Chairman, the President or the Secretary
upon the written request of two directors. The person calling such meeting shall
fix the time and place therefor. Notice of such meeting shall be given (a) by
written notice delivered personally, sent by telegram or mailed to each director
at his business or home address or (b) by verbal notice communicated personally
or by telephone to each director. Such notice shall be given at least six hours
prior to the meeting, except that if given by mail such notice shall be given at
least two (2) days prior to the meeting. If mailed, such notice shall be deemed
delivered when deposited in the United States mail. If given by telegram, such
notice shall be deemed delivered when the telegram is delivered to the telegraph
company. No such notice need be given to any director if waived by such director
in writing, whether before or after such meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of the Board need be
specified in the notice or waiver of notice of such meeting.
SECTION 7. Quorum and Vote Required for Action. At all
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meetings of the Board of Directors, the
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presence in person of a majority of the total number of directors shall
constitute a quorum for the transaction of business, and, except as otherwise
provided by law, by the Restated Certificate of Incorporation or by these
By-Laws, if a quorum is present, the act of a majority of the directors present
shall be the act of the Board of Directors. In the absence of a quorum, a
majority of the directors present, without notice other than by announcement at
the meeting, may adjourn the meeting to another date, time or place.
SECTION 8. Participation in a Meeting by Conference Telephone.
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A member of the Board of Directors, or of any committee thereof, may participate
in a 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. Participation in a meeting pursuant to this
section shall constitute presence at such meeting.
SECTION 9. Written Consent in Lieu of Meeting. Any action
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required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if all members of the Board
or of such 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.
SECTION 10. Compensation. Directors, as such, may receive such
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compensation for their services, including their services as members of
committees of the Board of Directors, as the Board of Directors may fix from
time to time.
ARTICLE IV.
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. Designation and Powers. The Board of Directors may,
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by resolution or resolutions adopted by a majority of the whole Board, designate
one or more committees, each committee to consist of two or more directors,
which, to the extent specified in such resolution or resolutions, and except as
otherwise provided by law, shall have and may exercise all of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation.
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The members of each committee shall be appointed by the Board
of Directors. Any member of a committee may resign at any time by written notice
addressed to the Chairman of the Board, the President or the Secretary. Unless
otherwise specified therein, such resignation shall take effect on receipt
thereof. Any member of a committee may be removed at any time, either with or
without cause, by a majority vote of the directors then in office. Any committee
designated pursuant to this Article IV may at any time thereafter be dissolved
by resolution of the Board of Directors.
SECTION 2. Meetings. Each committee may provide for the
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holding of regular meetings at such times and places (within or without the
State of Delaware) as it may from time to time determine. No notice of any such
meeting need be given. A special meeting of a committee may be called at any
time by the chairman of such committee (if one has been appointed) or by the
Chairman of the Board or by the President. The person calling such meeting shall
fix the time and place therefor. Notice of such meeting shall be given (a) by
written notice delivered personally, sent by telegram or mailed to each member
of the committee at his business or home address or (b) by verbal notice
communicated personally or by telephone to each member of the committee. Such
notice shall be given at least six hours prior to the meeting, except that if
given by mail such notice shall be given at least two (2) days prior to the
meeting. If mailed, such notice shall be deemed delivered when deposited in the
United States mail. If given by telegram, such notice shall be deemed delivered
when the telegram is delivered to the telegraph company. Such notice need not
state the purpose of the meeting. Each committee shall keep minutes of its
proceedings and shall report the same to the Board of Directors when so
requested by the Board. At any meeting of a committee, the presence in person of
a majority of the members of the committee shall constitute a quorum for the
transaction of business, and, except as otherwise provided by law, by the
Restated Certificate of Incorporation or by these By-Laws, if a quorum is
present, the act of a majority of the members present shall be the act of such
committee. In the absence of a quorum, a majority of the members present,
without notice other than by announcement at the meeting, may adjourn the
meeting to another date, time or place.
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ARTICLE V.
NOTICES
SECTION 1. Waiver of Notice. Whenever any notice is required
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to be given by law, by the Restated Certificate of Incorporation or by these
By-Laws, a written waiver thereof signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to such notice. Neither the business to be transacted at, nor the
purpose of, any meeting need be specified in such waiver.
SECTION 2. Attendance at Meeting. Attendance of a person at
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any meeting shall constitute a waiver of notice of such meeting, except when the
person attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
ARTICLE VI.
OFFICERS
SECTION 1. Number. The officers of the Corporation shall be a
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Chairman of the Board, a President, one or more Executive Vice Presidents, one
or more Vice Presidents, a Secretary, a Treasurer, and such other officers as
the Board of Directors may from time to time appoint. Any number of offices may
be held by the same person.
SECTION 2. Selection, Term of Office and Duties. All officers
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shall be elected by the Board of Directors. Each officer shall hold office until
his successor is elected and qualified or until his earlier resignation or
removal. Each officer shall have such authority and perform such duties as may
be prescribed by these By-Laws or by the Board of Directors.
SECTION 3. Resignation. Any officer may resign at any time by
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written notice to the Corporation, addressed to the attention of the Chairman of
the Board, the President or the Secretary. Unless otherwise specified therein,
such resignation shall take effect on receipt thereof.
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SECTION 4. Removal. Any officer may be removed at any time,
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either with or without cause, by the affirmative vote of a majority of the
directors then in office.
SECTION 5. Vacancies. If an office becomes vacant by reason of
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death, resignation, removal or otherwise, such vacancy may be filled by the
Board of Directors.
SECTION 6. Compensation. The compensation of all officers of
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the Corporation shall be fixed by the Board of Directors or such committee
thereof as the Board may designate.
SECTION 7. Chairman of the Board. The Chairman of the Board
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shall be chosen from among the directors and shall, if present, preside at all
meetings of the stockholders and of the Board of Directors. Except where by law
the signature of the President is required, the Chairman of the Board shall
possess the same power as the President to sign all certificates, contracts and
other instruments of the Corporation. The Chairman of the Board shall, subject
to the direction and control of the Board of Directors, have overall
responsibility for the management and supervision of the business and affairs of
the Corporation. He shall, in general, perform all duties incident to the office
of the Chairman of the Board and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 8. President. The President shall, subject to the
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direction and control of the Board of Directors, share with the Chairman of the
Board responsibility for the management and supervision of the business and
affairs of the Corporation. He shall have the power to sign all certificates,
contracts and other instruments of the Corporation. In general, the President
shall perform all duties incident to the office of President and shall have such
other duties as the Board of Directors may from time to time prescribe.
SECTION 9. Executive Vice Presidents and Vice Presidents. Each
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Executive Vice President and Vice President shall have such duties as may be
assigned to him from time to time by the Board of Directors. In the absence of
both the Chairman of the Board and the President, or in the event of their death
or disability, the Executive Vice
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President having the greatest seniority with the Corporation shall perform the
duties and exercise the powers of the Chairman of the Board and the President.
SECTION 10. Secretary and Assistant Secretaries. The Secretary
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shall give, or cause to be given, notice of all meetings of the stockholders and
of the Board of Directors in accordance with these By-Laws, shall attend all
meetings of the stockholders and of the Board of Directors, and shall record
their proceedings in a book to be kept for that purpose. The Secretary shall
have custody of the corporate seal and affix the seal to any instrument
requiring it. He shall perform such other duties as the Board of Directors may
from time to time prescribe.
The Assistant Secretary or Assistant Secretaries, if any,
shall, in the absence or disability of the Secretary, or at his request, perform
his duties and exercise his powers and authority.
SECTION 11. Treasurer and Assistant Treasurers. The Treasurer
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shall have custody of the funds and securities of the Corporation, shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the Corporation, and shall deposit all money and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be prescribed by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Board of Directors, at
meetings of the Board of Directors or whenever the Board may require it, an
account of all his transactions as Treasurer and of the financial condition of
the Corporation. The Treasurer shall perform such other duties as the Board of
Directors may from time to time prescribe.
The Assistant Treasurer or Assistant Treasurers, if any,
shall, in the absence or disability of the Treasurer, or at his request, perform
his duties and exercise his powers and authority.
SECTION 12. Delegation of Authority. Notwithstanding any
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provision hereof, the Board of Directors may from time to time delegate the
powers or duties of any officer to any other officer.
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SECTION 13. Surety Bonds. In the event that the Board of
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Directors shall so require, any officer 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 on the faithful performance of his duties to
the Corporation.
SECTION 14. Proxies. Subject to such limitations as the Board
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of Directors may from time to time prescribe, the Chairman of the Board, the
President and any other officer of the Corporation so authorized by the Chairman
of the Board or the President shall have full power and authority on behalf of
the Corporation to attend, to vote at, and to waive notice of, any meeting of
stockholders of any other corporation, shares of stock of which are owned by or
stand in the name of the Corporation, to execute and deliver proxies and actions
in writing, and otherwise to exercise on behalf of the Corporation any and all
rights and powers incident to the ownership of such shares.
ARTICLE VII.
STOCK
SECTION 1. Certificates of Stock. The interest of each
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stockholder shall be evidenced by a certificate or certificates representing
shares of stock of the Corporation which shall be in such form as the Board of
Directors may from time to time adopt. Each such certificate shall exhibit the
stockholder's name and the number of shares represented thereby, shall be signed
by the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, shall be sealed with the
seal of the Corporation, and shall be countersigned and registered in such
manner, if any, as the Board of Directors may prescribe. If such certificate is
signed by a transfer agent of the Corporation, the signature of any such officer
and the seal of the Corporation on such certificate may be facsimile. If any
officer who has signed, or whose facsimile signature has been used, on any such
certificate shall cease to be such officer of the Corporation before such
certificate is issued and delivered by the Corporation, such certificate may
nevertheless be issued and delivered with the same effect as if the person who
signed such certificate, or whose facsimile signature was used thereon, had not
ceased to be such officer. There shall be entered on the stock books of
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the Corporation the number of each certificate issued, the number of shares
represented thereby, the name of the person to whom such certificate was issued
and the date of issuance thereof.
SECTION 2. Transfer of Stock. Transfers of shares of the stock
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of the Corporation shall be made only on the books of the Corporation by the
holder of record thereof, or by his attorney thereunto duly authorized by a
power of attorney, upon the surrender of the certificate or certificates for
such shares properly endorsed, with such evidence of the authenticity of such
transfer, authorization and other matters as the Corporation or its agents may
reasonably require, and accompanied by all necessary federal and state stock
transfer stamps.
SECTION 3. Lost, Stolen or Destroyed Certificates. A
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certificate for shares of stock of the Corporation may be issued in place of any
certificate alleged to have been lost, stolen or destroyed, but only upon
delivery to the Corporation of such evidence of loss, theft or destruction as
the Board of Directors may require, and, if the Board of Directors so requires,
of a bond of indemnity, in form and amount and with one or more sureties
satisfactory to the Board.
SECTION 4. Regulations, Transfer Agents and Registrars. The
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Board of Directors may establish such other rules and regulations as it deems
appropriate concerning the issuance and transfer of certificates for shares of
the stock of the Corporation and may appoint one or more transfer agents or
registrars, or both.
SECTION 5. Record Date. (a) In order that the Corporation may
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determine the stockholders entitled to notice of and to vote at any meeting of
stockholders, 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, and which record date shall not be more than sixty (60) days nor less
than ten (10) days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining stockholders entitled
to notice of and to vote at a meeting of stockholders shall be the close of
business on the day next preceding the day on which notice of the meeting is
given. A determination of the stockholders of record entitled to notice of and
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting;
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provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
(b) In order that the Corporation may
determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights, or the stockholders 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, and which record date shall be not
more than sixty (60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be the close
of business on the date on which the Board of Directors adopts the resolution
relating thereto.
SECTION 6. Dividends and Reserves. Dividends shall be declared
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and paid at such times as the Board of Directors may determine, provided that no
dividends shall be paid or declared contrary to applicable provisions of law or
of the Restated Certificate of Incorporation. The Board of Directors may, from
time to time, set aside out of any funds of the Corporation available for
dividends such sum or sums as the Board, in its discretion, deems proper as a
reserve fund for working capital, or to meet contingencies, or for repairing or
maintaining the property of the Corporation, or for any other purpose that the
Board deems to be in the best interests of the Corporation. The Board of
Directors may modify or abolish any such reserve at any time.
SECTION 7. Record Ownership. The Corporation shall be entitled
----------------
to treat the holder of record of any shares of stock of the Corporation as the
holder in fact thereof and shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have express or other notice thereof,
except as otherwise provided by law.
ARTICLE VIII.
CORPORATE SEAL
The corporate seal of the Corporation shall be circular and
shall have inscribed thereon the name of the
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Corporation, the year of its organization, and the words "Corporate Seal,
Delaware." In all cases in which the corporate seal is authorized to be used, it
may be used by causing it or a facsimile of it to be impressed, affixed,
reproduced, engraved or printed.
ARTICLE IX.
FISCAL YEAR
The fiscal year of the Corporation shall be either a 52 or 53
week year which shall commence on the Sunday occurring on or nearest to February
1 and shall end on the Saturday occurring on or nearest to the following January
31.
ARTICLE X.
AMENDMENTS
Subject to the provisions of the Restated Certificate of
Incorporation, these By-Laws may be amended or repealed at any regular meeting
of the stockholders, or at any special meeting thereof duly called for that
purpose, at which a quorum is present, by a majority vote of the shares
represented and entitled to vote at such meeting. Subject to the laws of the
State of Delaware, the Restated Certificate of Incorporation and these By-Laws,
the Board of Directors may, by majority vote of those directors present at any
meeting of the Board at which a quorum is present, amend these By-Laws or adopt
such other By-Laws as in their judgment may be advisable for the regulation of
the conduct of the affairs of the Corporation.
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