Exhibit 3.6
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TRAPPEY'S FINE FOODS, INC.
formerly BFT ACQUISITION CORPORATION
Incorporated under the laws
of the State of Delaware
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BY-LAWS
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As adopted on November 15, 1988
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BFT ACQUISITION CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of BFT
Acquisition Corporation (the "Corporation") in the State of Delaware shall be at
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of New
Castle, and the registered agent in charge thereof shall be The Corporation
Trust Company.
SECTION 2. OTHER OFFICES. The Corporation may also have an office or
offices at other place or places within or outside the State of Delaware.
ARTICLE II
MEETING OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
SECTION 1. ANNUAL MEETINGS. The annual meeting of the stockholders
for the election of directors, and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, date
and hour as shall be fixed by the Board of Directors (the "Board") and
designated in the notice or waiver of notice thereof; except that no annual
meeting need be held if all actions, including the election of directors,
required by the General Corporation Law of the State of Delaware (the
"Delaware Statute") to be taken at a stockholders' annual meeting are taken
by written consent in lieu of meeting pursuant to Section 10 of this Article
II.
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SECTION 2. SPECIAL MEETINGS. A special meeting of the stockholders
for any purpose or purposes may be called by the Board, the Chairman, the
President or the Secretary or the record holders of at least a majority of the
issued and outstanding shares of Common Stock of the Corporation, to be held at
such place, date and hour as shall be designated in the notice or waiver of
notice thereof.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise required by
statute or by the Certificate of Incorporation (the "Certificate") or these
By-laws, notice of each annual or special meeting of the stockholders shall be
given to each stockholder of record entitled to vote at such meeting not less
than ten or more than sixty days before the day on which the meeting is to be
held, by delivering written notice thereof to him personally, or by mailing a
copy of such notice, postage prepaid, directly to him at his address as it
appears in the records of the Corporation, or by transmitting such notice
thereof to him at such address by telegraph, cable or other telephonic
transmission. Every such notice shall state the place, the date and hour of the
meeting, and, in case of a special meeting, the purpose or purposes for which
the meeting is called. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy, or who shall, in person or by attorney thereunto authorized, waive
such notice in writing, either before or after such meeting.
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Except as otherwise provided in these By-laws, neither the business to be
transacted at, nor the purpose of, any meeting of the stockholders need be
specified in any such notice or waiver of notice. Notice of any adjourned
meeting of stockholders shall not be required to be given, except when expressly
required by law.
SECTION 4. QUORUM. At each meeting of the stockholders, except where
otherwise provided by the Certificate or these By-laws, the holders of a
majority of the issued and outstanding shares of stock of the Corporation
entitled to vote at such meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. In the absence of a
quorum a majority in interest of the stockholders present in person or
represented by proxy and entitled to vote, or, in the absence of all the
stockholders entitled to vote, any officer entitled to preside at, or act as
secretary of, such meeting, shall have the power to adjourn the meeting from
time to time, until stockholders holding the requisite amount of stock shall be
present or represented. At any such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally called.
SECTION 5. ORGANIZATION. At each meeting of the stockholders, one of
the following shall act as chairman of the meeting and preside thereat, in the
following order of precedence:
(a) the Chairman;
(b) the President;
(c) any other officer of the Corporation designated by the Board
to act as chairman of such
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meeting and to preside thereat if the Chairman or the President shall be
absent from such meeting; or
(d) a stockholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat.
The Secretary or, if he shall be presiding over such meeting in
accordance with the provisions of this Section 5 or absent from such meeting,
the person (who shall be an Assistant Secretary, if an Assistant Secretary has
been appointed and is present) whom the chairman of such meeting shall appoint,
shall act as secretary of such meeting and keep the minutes thereof.
SECTION 6. ORDER OF BUSINESS. The order of business at each meeting
of the stockholders shall be determined by the chairman of such meeting, but
such order of business may be changed by a majority in voting interest of those
present in person or by proxy at such meeting and entitled to vote thereat.
SECTION 7. VOTING. Except as otherwise provided by law or by the
Certificate or these By-laws, at each meeting of the stockholders, every
stockholder of the Corporation shall be entitled to one vote in person or by
proxy for each share of Common Stock of the Corporation held by him and
registered in his name on the books of the Corporation on the date fixed
pursuant to Section 7 of Article VI as the record date for the determination
of stockholders entitled to vote at such meeting. Persons holding stock in a
fiduciary capacity shall be
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entitled to vote the shares so held. A person whose stock is pledged shall be
entitled to vote, unless, in the transfer by the pledgor on the books of the
Corporation, he has expressly empowered the pledgee to vote thereon, in which
case only the pledgee or his proxy may represent such stock and vote thereon. If
shares or other securities having voting power stand in the record of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same shares, unless
the Secretary shall be given written notice to the contrary and furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting
binds all; and
(c) if more than one votes, but the vote is evenly split on any
particular matter, such shares shall be voted in the manner provided by
law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section 7 shall be
a majority or even-split in interest. The Corporation shall not vote directly or
indirectly any share of its own capital stock. Any vote of stock may be given by
the stockholder entitled thereto in person or by his proxy appointed
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by an instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; PROVIDED,
HOWEVER, that no proxy shall be voted after three years from its date, unless
said proxy provides for a longer period. At all meetings of the stockholders,
all matters (except where other provision is made by law, the Certificate or
these By-laws) shall be decided by the vote of a majority in interest of the
stockholders present in person or by proxy at such meeting and entitled to vote
thereon, a quorum being present. Unless demanded by a stockholder present in
person or by proxy at any meeting and entitled to vote thereon, the vote on any
question need not be by ballot. Upon a demand by any such stockholder for a vote
by ballot upon any question, such vote by ballot shall be taken. on a vote by
ballot, each ballot shall be signed by the stockholder voting, or by his proxy,
if there be such proxy, and shall state the number of shares voted.
SECTION 8. INSPECTION. The chairman of the meeting may at any time
appoint two or more inspectors to serve at any meeting of the stockholders.
Any inspector may be removed, and a new inspector or inspectors appointed, by
the Board at any time. Such inspectors shall decide upon the qualifications
of voters, accept and count votes, declare the results of such vote, and
subscribe and deliver to the secretary of the meeting a certificate stating
the number of shares of stock issued and outstanding and entitled to vote
thereon and the number of shares voted for and against the question,
respectively. The inspectors need not be stockholders of the Corporation,
and any director or officer of the Corporation may be an inspector on any
question other than a vote for or against his election to any position with
the
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Corporation or on any other matter in which he may be directly interested.
Before acting as herein provided, each inspector shall subscribe an oath
faithfully to execute the duties of an inspector with strict impartiality and
according to the best of his ability.
SECTION 9. LIST OF STOCKHOLDERS. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its stock
ledger to prepare and make, at least ten days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to any
such meeting, during ordinary business hours, for a period of at least ten days
prior to such meeting, either at a place within the city where such xxxxxxx.xx
to be held, which place shall be specified in the notice of the meeting or, if
not so specified, at the place where the meeting is to be held. Such list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and ray be inspected by any stockholder who is present.
SECTION 10. STOCKHOLDERS' CONSENT IN LIEU OF MEETING. Any action
required by the Delaware Statute to be taken at any annual or special meeting
of the stockholders of the Corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without
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prior notice and without a vote, by a consent in writing, as permitted by the
Delaware Statute.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business, property and affairs of the
Corporation shall be managed by the Board, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law or by
the Certificate directed or required to be exercised or done by the
stockholders.
SECTION 2. NUMBER AND TERM OF OFFICE. The number of directors shall
be fixed from tine to time by the Whole Board. The term "Whole Board" is used
to herein to refer to the number of directors from time to time authorized to be
on the Board regardless of the number of directors then in office. Directors
need not be stockholders. Each director shall hold office until his successor
is elected and qualified, or until his earlier death or resignation or removal
in the manner hereinafter provided.
SECTION 3. ELECTION OF DIRECTORS. At each meeting of the
stockholders for the election of directors at which a quorum is present, the
persons receiving the greatest number of votes, up to the number of directors
to be elected, of the stockholders present in person or by proxy and entitled
to vote thereon, shall be the directors; provided that for purposes of such
vote no stockholder shall be allowed to cumulate his votes. Unless an
election by ballot shall be demanded as provided in Section 7 of
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Article II, election of directors may be conducted in any manner approved at
such meeting.
SECTION 4. RESIGNATION, REMOVAL AND VACANCIES. Any director may
resign at any time by giving written notice to the Board, the Chairman, the
President or the Secretary. Such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Any director or the entire Board may be removed, with or without
cause, at any time by vote of the holders of a majority of the shares then
entitled to vote at an election of directors, or by written consent of the
stockholders pursuant to Section 10 of Article 11.
Vacancies occurring in the Board for any reason may be filled by vote
of the stockholders or by the stockholders' written consent pursuant to Section
10 of Article II, or by vote of the Board or by the directors' written consent
pursuant to Section 6 of this Article III. If the number of directors then in
office is less than a quorum, such vacancies may be filled by a vote of a
majority of the directors then in office.
SECTION 5. MEETINGS.
(a) ANNUAL MEETINGS. As soon as practicable after. each annual
election of directors, the Board shall meet for the purpose of organization
and the transaction of other business, unless it shall have transacted all
such business by written consent pursuant to Section 6 of this Article III.
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(b) OTHER MEETINGS. Other meetings of the Board shall be held at
such times and places as the Board, the Chairman, the President shall from time
to time determine.
(c) NOTICE OF MEETINGS. The Secretary shall give notice to each
director of each meeting, including the time, place and purpose of such meeting.
Notice of each such meeting shall be mailed to each director, addressed to him
at his residence or usual place of business, at least two days before the date
on which such meeting is to be held, or shall be sent to him at such place by
telegraph, cable, wireless or other form of recorded communication, or be
delivered personally or by telephone not later than the day before the day on
which such meeting is to be held, but notice need not be given to any director
who shall attend such meeting. A written waiver of notice, signed by the person
entitled thereto, whether before or after the time of the meeting stated
therein, shall be deemed equivalent to notice.
(d) PLACE OF MEETINGS. The Board may hold its meetings at such place
or places within or outside the State of Delaware as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
(e) QUORUM AND MANNER OF ACTING. A majority of the total number of
directors then in office shall be present in person at any meeting of the
Board in order to constitute a quorum for the transaction of business at such
meeting, and the vote of a majority of those directors present at any such
meeting at which a quorum is present shall be necessary for the passage of
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any resolution or act of the Board, except as otherwise expressly required by
law or these By-laws. in the absence of a quorum for any such meeting, a
majority of the directors present thereat may adjourn such meeting from time to
time until a quorum shall be present.
(f) ORGANIZATION. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside thereat, in the following order
of precedence:
(a) the Chairman;
(b) the President (if a director);
(c) any director chosen by a majority of the directors present.
The Secretary or, in the case of his absence, any person (who shall be
an Assistant Secretary, if an Assistant Secretary has been appointed and is
present) whom the chairman of the meeting shall appoint shall act as secretary
of such meeting and keep the minutes thereof.
SECTION 6. DIRECTORS' CONSENT IN LIEU OF MEETING. Any action
required or permitted to be taken at any meeting of the Board may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by all the directors
and such consent is filed with the minutes of the proceedings of the Board.
SECTION 7. ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT. Any one or more members of the
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Board may participate in a meeting of the Board by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting.
SECTION 8. COMMITTEES. The Board may, by resolution or resolutions
passed by a majority of the Whole Board, designate one or more committees, each
such committee to consist of one or more directors of the Corporation, which to
the extent provided in said resolution or resolutions shall have and may
exercise the powers of the Board in the management of the business and affairs
of the Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it, such committee or committees to have such
name or names as may be determined from time to time by resolution adopted by
the Board. A majority of all the members of any such committee may determine its
action and fix the time and place of its meetings, unless the Board shall
otherwise provide. The Board shall have power to change the members of any such
committee at any time, to fill vacancies and to discharge any such committee,
either with or without cause, at any time.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE OFFICERS. The principal officers of the
Corporation shall be a Chairman, a President, a Secretary and a Treasurer,
and may include such other officers as the Board nay appoint pursuant to
Section 3 of this Article IV. Any two or more offices may be held by the
same person.
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SECTION 2. AUTHORITY AND DUTIES. All officers, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-laws or, to the
extent so provided, by the Board.
SECTION 3. OTHER OFFICERS. The Corporation may have such other
officers, agents and employees as the Board may deem necessary, including one or
more Assistant Secretaries, one or more Assistant Treasurers and one or more
Vice-Presidents, each of whom shall hold office for such period, have such
authority, and perform such duties as the Board, the Chairman, or the President
may from time to tine determine. The Board may delegate to any principal
officer the power to appoint and define the authority and duties of, or remove,
any such officers, agents or employees.
SECTION 4. TERM OF OFFICE, RESIGNATION AND REMOVAL. All officers
shall be elected or appointed by the Board and shall hold office for such term
as may be prescribed by the Board. Each officer shall hold office until his
successor has been elected or appointed and qualified or until his earlier death
or resignation or removal in the manner hereinafter provided. The Board may
require any officer to give security for the faithful performance of his duties.
Any officer may resign at any time by giving written notice to the
Board, the Chairman, the President or the Secre-
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tary. Such resignation shall take effect at the time specified therein or, if
the time be not specified, at the time it is accepted by action of the Board.
Except as aforesaid, the acceptance of such resignation shall not be necessary
to make it effective.
All officers and agents elected or appointed by the Board shall be
subject to removal at any time by the Board or by the stockholders of the
Corporation with or without cause.
SECTION 5. VACANCIES. If the office of Chairman, President,
Secretary or Treasurer becomes vacant for any reason, the Board shall fill such
vacancy, and if any other office becomes vacant, the Board may fill such
vacancy. Any officer so appointed or elected by the Board shall serve only
until such time as the unexpired term of his predecessor shall have expired
unless reelected or reappointed by the Board.
SECTION 6. THE CHAIRMAN. The Chairman shall preside at meetings of
the Board and of the stockholders at which he is present, and shall give counsel
and advice to the Board and the officers of the Corporation on all subjects
concerning the welfare of the Corporation and the conduct of its business. He
shall perform such other duties as the Board may from time to time determine.
SECTION 7. THE PRESIDENT. The President shall be the chief executive
officer of the Corporation. He shall have general and active management and
control of the business and affairs
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of the Corporation subject to the control of the Board and to the Chairman,
under whose supervision he shall act, and shall see that all orders and
resolutions of the Board are carried into effect.
SECTION 8. THE SECRETARY. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of the
stockholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose. He may give, or cause to be given, notice of
all meetings of the stockholders and of the Board, and shall perform such other
duties as may be prescribed by the Board, the Chairman or the President, under
whose supervision he shall act. He shall keep in safe custody the seal of the
Corporation and affix the same to any duly authorized instrument requiring it
and, when so affixed, it shall be attested by his signature or by the signature
of the Treasurer or, if appointed, an Assistant Secretary or an Assistant
Treasurer. He shall keep in safe custody the certificate books and stockholder
records and such other books and records as the Board may direct, and shall
perform all other duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Board, the Chairman or
the President.
SECTION 9. THE TREASURER. The Treasurer shall have the care and
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate
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accounts of receipts and disbursements in books belonging to the Corporation,
and shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board. The Treasurer shall disburse the funds of the Corporation as nay be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the Chairman, President and directors, at the regular meetings of the
Board,or whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Corporation, and shall perform
all other duties incident to the office of Treasurer and such other duties as
from time to time may be assigned to him by the Board, the Chairman or the
President.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. EXECUTION OF DOCUMENTS. The Board shall designate the
officers, employees and agents of the Corporation who shall have the power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and in
the name of the Corporation, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; and,
unless so designated or expressly authorized by these By-laws, no officer,
employee or agent shall
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have any power or authority to bind the Corporation by any contract or
engagement, to pledge its credit or to render it liable pecuniarily for any
purpose or to any amount.
SECTION 2. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board or Treasurer,
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or any other officer of the Corporation to whom power in this respect shall have
been given by the Board, shall select.
SECTION 3. PROXIES IN RESPECT OF STOCK OR OTHER SECURITIES OF OTHER
CORPORATIONS. The Board shall designate the officers of the Corporation who
shall have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation nay have as the holder of stock or other
securities in any other corporation, and to vote or consent in respect of such
stock or securities. Such designated officers' may instruct the person or
persons so appointed as to the manner of exercising such powers and rights, and
such designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal or otherwise, such
written proxies, powers of attorney or other instruments as they nay deem
necessary or proper in order that the corporation may exercise its said powers
and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
SECTION 1. CERTIFICATES FOR SHARES. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number and
class of shares owned by him in the Corporation, which shall be in such form
as shall be prescribed by the Board. Certificates shall be numbered and
issued in consecutive order and shall be signed by, or in the name of, the
Corporation by the Chairman, the President or any Vice President
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and by the Treasurer (or an Assistant Treasurer, if appointed) or the Secretary
(or an Assistant Secretary, if appointed). In case any officer or officers who
shall have signed any such certificate or certificates shall cease to be such
officer or officers of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though the person or persons who
assigned such certificate had not ceased to be such officer or officers of the
Corporation.
SECTION 2. RECORD. A record in one or more counterparts shall be
kept of the name of the person, firm or corporation owning the shares
represented by each certificate for stock of the Corporation issued, the number
of shares represented by each such certificate, the date thereof and, in the
case of cancellation, the date of cancellation. Except as otherwise expressly
required by law, the person in whose name shares of stock stand on the stock
record of the Corporation shall be deemed the owner thereof for all purposes as
regards the Corporation.
SECTION 3. TRANSFER AND REGISTRATION OF STOCK.
(a) The transfer of stock and certificates of stock which
represent the stock of the Corporation shall be governed by Article 8 of
Subtitle 1 of Title 6 of the Delaware Code (the Uniform Commercial Code), as
amended from time to time.
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(b) Registration of transfers of shares of the Corporation shall
be made only on the books of the Corporation upon request of the registered
holder thereof, or of his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the Corporation, and upon the
surrender of the certificate or certificates for such shares properly endorsed
or accompanied by a stock power duly executed.
SECTION 4. ADDRESSES OF STOCKHOLDERS. Each stockholder shall
designate to the Secretary an address at which notices of meetings and all other
corporate notices may be served or mailed to him, and, if any stockholder shall
fail to designate such address, corporate notices may be served upon him by mail
directed to him at his post-office address, if any, as the same appears on the
share record books of the Corporation or at his last known post-office address.
SECTION 5. LOST, DESTROYED AND MUTILATED CERTIFICATES. The holder
of any shares of the Corporation shall immediately notify the Corporation of
any loss, destruction or mutilation of the certificate therefor, and the
Board may, in its discretion, cause to be issued to him a new certificate or
certificates for shares, upon the surrender of the mutilated certificates or,
in the case of loss or destruction of the certificate, upon satisfactory
proof of such loss or destruction, and the Board may, in its discretion,
require the owner of the lost or destroyed certificate or his legal
representative to give the Corporation a bond in such sum and with such
surety or sureties as it may direct to indemnify the Corporation against any
claim that nay be made against it on account of the alleged loss or
destruction of any such certificate.
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SECTION 6. REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates for stock of the
Corporation.
SECTION 7. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board 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, and which record date shall be not more than sixty nor less than
ten days before the date of such meeting. If no record date is fixed by the
Board, 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 notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board may fix a new record date for the adjourned
meeting.
(b) In order that the corporation may determine the stockholders
entitled to consent to corporate action in writ-
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ing without a meeting, the Board 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, and which date shall be not more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board. If no
record date has been fixed by the Board, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required by the Delaware Statute,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in this State, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board
and prior action by the Board is required by the Delaware Statute, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which
the Board adopts the resolution taking such prior action.
(c) 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
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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 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 days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto.
ARTICLE VII
SEAL
The Board may provide a corporate seal, which shall be in the form of
a circle and shall bear the full name of the Corporation and the words and
figures "Corporate Seal - 1988 Delaware."
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION 1. INDEMNIFICATION.
(a) As provided in the Certificate, to the fullest extent
permitted by the Delaware Statute as the same exists or may hereafter be
amended, a director of this Corporation shall not be liable to the
Corporation or its stockholders for breach of fiduciary duty as a director.
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(b) Without limitation of any right conferred by paragraph (a)
of this Section 1, any person made, or threatened to be made, a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he, his
testator or intestate is or was a director, officer, employee or agent of the
corporation, or is or was acting at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including, without limitation, as a
fiduciary of, or otherwise rendering services to, any employee benefit plan
of or relating to the Corporation, shall be indemnified by the Corporation
against expenses (including attorneys' fees), judgments, fines, excise taxes
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, or in connection with any
appeal therein; provided, that such person 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 a criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful; except that no
indemnification shall be made in the case of an action, suit or proceeding by
or in the right of the Corporation in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such director,
officer, employee or agent is liable to the Corporation, unless a court
having jurisdiction shall determine that, despite such
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adjudication, such person is fairly and reasonably entitled to indemnification.
(c) The foregoing rights of indemnification shall not be deemed
exclusive of any other rights to which any director, officer, employee or agent
may be entitled or of any power of the Corporation apart from the provisions of
this Section 1.
SECTION 2. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or any person who is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the full
extent and in the manner permitted by the applicable laws of the United States
and the State of Delaware from time to time in effect, whether or not the
Corporation would have the power to indemnify such person under Section 1 of
this Article IX.
ARTICLE X
AMENDMENT
Any by-law (including these By-laws) may be adopted, amended or
repealed by the vote of the holders of a majority of the shares then entitled to
vote or by the stockholders' written consent pursuant to Section 10 of Article
II, or by the vote of the Board or by the directors' written consent pursuant to
Section 6 of Article III.
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