UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
April 14, 2004
FOODARAMA SUPERMARKETS, INC.
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(Exact name of registrant as specified in charter)
New Jersey 1-5745-1 21-0717108
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
922 Highway 33, Building 6, Suite 1, Freehold, New Jersey 07728
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (732) 462-4700
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Not Applicable
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(Former name or former address, if changed since last report)
Item 5. Other Events and Regulation FD Disclosure.
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(Item 5.03 Amendments to Articles of Incorporation or By-laws; Changes in Fiscal
Year.)
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On April 14, 2004, the Board of Directors of Foodarama Supermarkets, Inc.
unanimously adopted and approved Amended and Restated By-laws. Certain
provisions of the Company's existing By-laws, as amended, were either revised or
reordered within the Amended and Restated By-laws to better reflect current
factual circumstances and other provisions were added, including, advance notice
provisions regarding shareholder proposals for consideration at an annual
meeting of shareholders of the Company and shareholder nominations for director
of the Company. The Amended and Restated By-laws became effective immediately
upon their adoption by the Board of Directors. A copy of the Amended and
Restated By-laws has been included as exhibit 3.1 to this current report on Form
8-K.
* * * * *
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
FOODARAMA SUPERMARKETS, INC.
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(Registrant)
By: /s/ Michael Shapiro
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Michael Shapiro
Senior Vice President and Chief Financial
Officer
Date: April 20, 2004
EXHIBIT 3.1
AMENDED AND RESTATED
BY-LAWS
OF
FOODARAMA SUPERMARKETS, INC.
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ARTICLE I
IDENTIFICATION AND OFFICES
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Section 1.01. Name. The name of the Corporation is Foodarama
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Supermarkets, Inc. (the"Corporation").
Section 1.02. Principal Office and Agent. The principal office of the
Corporation shall be located at 922 Highway 33, Building 6, Suite 1, Howell, New
Jersey. The Corporation shall maintain in such principal office a registered
agent upon whom process against the Corporation may be served.
Section 1.03. Other Places of Business. The Corporation may also establish
and have offices at such other place or places, within or without the State of
New Jersey, as may from time to time be designated by the Board of Directors
(the "Board").
ARTICLE II
SHAREHOLDERS
------------
Section 2.01. Annual Meeting. The annual meeting of the shareholders of
the Corporation for the election of directors and for the transaction of such
other business as may properly come before the meeting shall be held on such
date in March or April of each year and at such time and place, either within or
without the State of New Jersey, as shall be designated by the Board and stated
in the notice of such meeting. If the annual meeting for the election of
directors is not held on the date designated therefor, the directors shall cause
the meeting to be held as soon thereafter as convenient.
Section 2.02. Special Meetings. Special meetings of the shareholders shall
be held on such date and at such time and place, either within or without the
State of New Jersey, as shall be designated by the Board and stated in the
notice of such meeting. Such meetings, other than those regulated by statute,
may be called at any time by the Chairman of the Board (the "Chairman"), the
President of the Corporation (the "President"), the Secretary of the Corporation
(the "Secretary") or by the affirmative vote of a majority of the directors
present at any meeting of the Board at which a quorum is present. Business
transacted at any special meeting of shareholders shall be limited to the
purpose or purposes stated in the notice for such special meeting.
Section 2.03. Notice of Meetings. Except as otherwise provided by law,
written notice, signed by the President, one or more Vice Presidents of the
Corporation (each a "Vice President") or the Secretary, of the time, place and
purpose or purposes of every meeting of shareholders, including, in the case of
the election of directors, the number of directors to be elected, shall be
given not less than ten (10) and not more than sixty (60) days before the date
of the meeting, either personally or by first class mail, to each shareholder
of record entitled to vote at the meeting. When a meeting is adjourned to
another time or place, it shall not be necessary to give notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the
adjourned meeting, only such business is transacted as might have been
transacted at the original meeting. If after the adjournment the Board fixes a
new record date for the adjourned meeting, a notice of the adjourned meeting
shall be given to each shareholder of record on the new record date and
entitled to vote at such meeting. If mailed, the notice shall be directed to
the shareholder's address as it appears on the records of the Corporation,
unless the shareholder shall have filed with the Secretary a written request
that notice be mailed to some other address, in which case, the notice shall be
mailed to the address designated in such request. Any shareholder may in
writing waive notice of any meeting, and such waiver may be signed before or
after the meeting.
Section 2.04. Quorum. Except as otherwise provided in the Certificate of
Incorporation of the Corporation, as may be amended and/or restated from time
to time (the "Certificate of Incorporation"), or by statute, the holders of the
outstanding shares of common stock of the Corporation entitled to cast a
majority of the votes at a meeting, whether present in person or represented by
proxy, shall constitute a quorum at such meeting. Whenever the holders of any
class or series of shares are entitled to vote separately on a specified item
of business, the holders of such class or series of shares entitled to cast a
majority of the votes at a meeting shall constitute a quorum at such meeting
for the transaction of such specified item of business. If less than a quorum
shall be in attendance at the time for which the meeting shall have been
called, the meeting may be adjourned from time to time by a majority vote of
the shareholders present or represented, without any notice other than by
announcement at the meeting, until a quorum shall attend. At any adjourned
meeting at which a quorum shall attend, any business may be transacted which
might have been transacted if the meeting had been held as originally called.
Section 2.05. Voting. Each shareholder shall be entitled, on each matter
submitted to a vote at a meeting of the shareholders, to one vote in person or
by proxy for each share of stock of the Corporation having voting rights
registered in his or her name on the books of the Corporation as of the record
date, unless otherwise provided in the Certificate of Incorporation. Whenever
any action, other than the election of directors, is to be taken by vote of the
shareholders, it shall be authorized by a majority of the votes cast at a
meeting of the shareholders by the holders of the shares entitled to vote
thereon, unless a greater plurality is required by the Certificate of
Incorporation or by statute. At each election of directors, every shareholder
entitled to vote at such election shall have the right to vote the number of
shares owned by such shareholder for as many persons as there are directors to
be elected and for whose election the shareholder has a right to vote. The
directors shall be elected by a plurality of the votes cast at an election.
Section 2.06. Proxies. Every shareholder entitled to vote at a meeting of
shareholders or to express consent without a meeting may authorize another
person or persons to act for him, her or it by proxy. Every proxy shall be
executed in writing by the shareholder or the shareholder's agent, except that a
proxy may be given by a shareholder or his or her agent by telegram, cable,
facsimile or other telephonic transmission or by any other means of electronic
communication so long as that telegram, cable, facsimile, telephonic
transmission or other means of electronic communication either sets forth or is
submitted with information from which it can be determined that the proxy was
authorized by the shareholder or his or her agent. No proxy shall be valid for
more than eleven (11) months, unless a longer time is expressly provided
therein. Unless it is irrevocable as provided in subsection 14A:5-19(3) of the
New Jersey Business Corporation Act (the "Act"), a proxy shall be revocable at
will. The grant of a later proxy revokes any earlier proxy unless the earlier
proxy is irrevocable. A proxy shall not be revoked by the death or incapacity of
the shareholder, but the proxy shall continue to be in force until revoked by
the personal representative or guardian of the shareholder. The presence at any
meeting of any shareholder who has given a proxy does not revoke the proxy
unless the shareholder files written notice of the revocation with the secretary
of the meeting prior to the voting of the proxy or votes the shares subject to
the proxy by written ballot. A person named in a proxy as the attorney or agent
of a shareholder may, if the proxy so provides, substitute another person to act
in his or her place, including any other person named as an attorney or agent in
the same proxy. The substitution shall not be effective until an instrument
effecting it is filed with the Secretary. At the request of any shareholder, the
proxies shall be examined by the inspector or inspectors of election as
appointed pursuant to these By-laws.
Section 2.07. Organization. Meetings of the shareholders shall be presided
over by the Chairman, or in the absence of the Chairman, by the President, or in
the absence of the President, by a chairman designated by the Board, or in the
absence of such designation, by a chairman chosen at the meeting by a majority
vote of those shareholders present in person or represented by proxy and
entitled to vote thereat. Notwithstanding any provision herein contained to the
contrary, the Board, by the affirmative vote of a majority of the directors
present at any meeting of the Board at which a quorum is present, may appoint
any officer or director of the Corporation or such other person or persons as it
may designate to preside over any meeting of the shareholders of the
Corporation. The Secretary, or in his or her absence, or if the Secretary is
unavailable as a result of the Secretary acting in another corporate capacity,
an Assistant Secretary of the Corporation ("Assistant Secretary"), shall act as
the secretary of the meeting, but in the absence of such Secretary or Assistant
Secretary, the chairman of the meeting may appoint any person to act as
secretary of the meeting. The Board shall be entitled to make such rules or
regulations for the conduct of the meetings of shareholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations, the
chairman of the meeting shall have the authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are necessary, appropriate or convenient for the proper conduct of the
meeting. The order of business at each such meeting shall be as determined by
the chairman of the meeting. The chairman of the meeting may adjourn any meeting
of the shareholders without a vote of the shareholders for any period he or she
deems necessary if he or she rules that orderly procedures cannot be maintained
at the meeting.
Section 2.08. Business. To be properly brought before an annual meeting of
shareholders, business must be either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board; (b) otherwise
properly brought before the meeting by or at the direction of the Board; or (c)
otherwise properly brought before the meeting by a shareholder. In addition to
any other applicable requirements, for business to be properly brought before an
annual meeting by a shareholder, the shareholder must have given timely notice
thereof in writing, either by personal delivery or by first class mail, postage
prepaid, to the Secretary not later than ninety (90) days prior to the meeting
anniversary date of the immediately preceding annual meeting. A shareholder's
notice to the Secretary shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (a) a detailed description of the
business desired to be brought before the annual meeting, (b) the name and
record address of the shareholder proposing such business, (c) the class and
number of shares of the Corporation which are beneficially owned by the
shareholder, and (d) any material interest of the shareholder in such business.
The Corporation may require any proposing shareholder to furnish such other
information as may reasonably be required by the Corporation to properly
complete any proxy or information statements used for the solicitation of
proxies in connection with such business.
Notwithstanding anything in the By-laws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Section 2.08 of Article II and any other applicable requirements,
provided, however, that nothing in this Section 2.08 shall be deemed to preclude
discussion by any shareholder of any business properly brought before the annual
meeting. The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 2.08 and
any other applicable requirements and if he or she should so determine, which
determination shall be conclusive, he or she shall so declare to the meeting and
any such business not properly brought before the meeting shall not be
transacted.
Section 2.09. Inspectors. The Board, in advance of any meeting of the
shareholders, or the chairman of the meeting, at such meeting, shall appoint
one or more inspectors of election to act at the meeting or any adjournment
thereof.
Section 2.10. List of Shareholders. The officer or agent having charge of
the stock transfer books for shares of the Corporation shall make and certify a
complete list of the shareholders entitled to vote at a meeting of the
shareholders or any adjournment thereof. Such list shall be arranged
alphabetically within each class, series or group of shareholders maintained by
the Corporation, with the address of, and the number of shares held by, each
shareholder. Such list shall be produced at the time and place of the meeting
and be available for the inspection of any shareholder for a reasonable period
of time during such meeting.
Section 2.11. Record Date. The Board shall fix a date as the record date
for purposes of determining the shareholders entitled to (a) notice of or to
vote at any meeting of shareholders or any adjournment thereof; (b) give a
written consent to any action without a meeting; or (c) receive payment of any
dividend or allotment of any right. The record date may in no case be more than
sixty (60) days prior to the shareholders' meeting or other corporate action or
event to which it relates. The record date for a shareholders' meeting may not
be less than ten (10) days before the date of the meeting. The record date to
determine shareholders entitled to give a written consent may not be more than
sixty (60) days before the date fixed for tabulation of the consents or, if no
date has been fixed for tabulation, more than sixty (60) days before the last
day on which consents received may be counted.
Section 2.12. Written Consent of Shareholders. Any action required or
permitted to be taken at a meeting of shareholders by the Act, the Certificate
of Incorporation or these By-laws, may be taken without a meeting if all the
shareholders entitled to vote thereon consent thereto in writing, except that in
the case of any action to be taken pursuant to Chapter 10 of the Act, such
action may be taken without a meeting only if all shareholders consent thereto
in writing or if all shareholders entitled to vote thereon consent thereto in
writing and the Corporation provides to all other shareholders the advance
notification required by subsection 14A:5-6(2)(b) of the Act. Any removal of a
director by the Corporation's shareholders shall be undertaken by a vote of the
shareholders at a meeting thereof and shall not be effected by written consent.
Except as otherwise provided in the Certificate of Incorporation and
subject to the provisions of subsection 14A:5-6(2) of the Act, any action
required or permitted to be taken at a meeting of shareholders by the Act, the
Certificate of Incorporation or these By-laws, other than the annual election of
directors, may be taken without a meeting, without prior notice and without a
vote, upon the written consent of shareholders who would have been entitled to
cast the minimum number of votes which would be necessary to authorize such
action at a meeting at which all shareholders entitled to vote thereon were
present and voting.
ARTICLE III
DIRECTORS
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Section 3.01. Number, Election, Term of Office and Removal. The number of
directors of the Corporation shall be a minimum of three (3) and a maximum of
eleven (11), fixed from time to time by the Board. The directors shall be
elected at the annual meeting of the shareholders of the Corporation by a
plurality vote of the shareholders. The directors need not be residents of the
State of New Jersey and the directors need not be shareholders of the
Corporation. Each director shall be elected to serve until the next annual
meeting of shareholders, and in all cases as to each director until his
successor shall be elected and shall qualify (except in cases where no successor
is elected due to a reduction in the size of the Board) or until his or her
earlier resignation, removal from office, death or incapacity. Any director may
be removed for cause at any time by a unanimous vote of the remaining directors
although less than a quorum. Shareholders shall not be entitled to remove
directors without cause. Any election or removal of a director by the
Corporation's shareholders shall be undertaken by a vote of the shareholders at
a meeting thereof and shall not be effected by written consent. Any director may
resign at any time by giving written notice of resignation to the Corporation.
Section 3.02. Nominations. Nominations for the election of directors may
be made by the Board or a committee appointed by the Board or by any shareholder
entitled to vote in the election of directors generally. However, any
shareholder entitled to vote in the election of directors generally may nominate
one or more persons for election as directors at a meeting only if written
notice of such shareholder's intent to make such nomination or nominations has
been given either by personal delivery or by first class mail, postage prepaid,
to the Secretary not later than (i) with respect to an election to be held at an
annual meeting of shareholders, ninety (90) days prior to the anniversary date
of the immediately preceding annual meeting; and (ii) with respect to an
election to be held at a special meeting of shareholders for the election of
directors, the close of business on the tenth day following the date on which
notice of such meeting is first given to shareholders. Each such notice shall
set forth: (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the shareholder 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 shareholder 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
shareholder; (d) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement or
information statement filed pursuant to the proxy rules and regulations of the
Securities and Exchange Commission; and (e) the signed consent of each nominee
to serve as a director of the Corporation if so elected. The Corporation may
require any proposed nominee or shareholder proposing a nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a director of the
Corporation or to properly complete any proxy or information statements used for
the solicitation of proxies in connection with the meeting at which directors
are to be elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
Section 3.03. Duties and Powers. The Board shall manage the property,
affairs and business of the Corporation and shall exercise all such powers of
the Corporation, and do all such lawful acts and things necessary or expedient
in the control and management thereof, as are not required to be exercised or
done by the shareholders. The directors may adopt such rules and regulations for
the management of the Corporation as they may deem proper and that are not
inconsistent with the Certificate of Incorporation, these By-laws or any
statute.
Section 3.04. Regular and Special Meetings. Meetings of the Board, whether
regular or special, shall be held at the principal office of the Corporation or
at any other place, within or without the State of New Jersey, which the
Chairman or the Board, by the affirmative vote of a majority of the directors
present at any meeting of the Board at which a quorum is present, may from time
to time designate. Meetings of the Board shall be held whenever called for by
the Chairman or the President. The Secretary shall call a meeting of the Board
whenever requested in writing by any two or more of the directors. Immediately
after the annual meeting of the shareholders, the Board shall meet and elect or
appoint the officers of the Corporation. The directors may adopt such rules and
regulations for the conduct of their meetings as they may deem proper and that
are not inconsistent with the Certificate of Incorporation, these By-laws or any
statute.
Section 3.05. Notice of Meetings. Notice shall be given to each director
by the Secretary, of the time and place of each meeting of the Board. Neither
the business to be transacted at nor the purpose of the meeting need be
specified in the notice. Such notice may be given by first class mail, confirmed
facsimile, overnight courier service, telephone or in person; at least two (2)
days' notice shall be given to each director; provided, that if notice is given
by first class mail, such notice must be posted at least five (5) days before
the scheduled meeting. The Board may meet to transact business at any time and
place without notice, provided that all members of the Board shall be present,
or if any member or members not present shall waive notice of such meeting in
writing either before or after the meeting.
Section 3.06. Quorum. A majority of the Board shall constitute a quorum
for the transaction of business at any meeting. The act of a majority of the
directors present at any meeting while a quorum is present shall be the act of
the Board. In the absence of a quorum, a majority of the directors present may
adjourn any meeting from time to time until such quorum shall be present. Notice
of any adjourned meeting shall be given in the same manner as described herein.
In the absence of a quorum, any question coming before the Board shall be
determined and decided as provided in the Certificate of Incorporation, these
By-laws or the Act.
Section 3.07. Organization. The Board shall elect or appoint from among
its members a Chairman. Meetings of the Board shall be presided over by the
Chairman, or in his or her absence, by the President, or in his or her absence,
by a chairman chosen by the affirmative vote of a majority of the directors
present at any meeting of the Board at which a quorum is present. The Secretary
or Assistant Secretary, or, in the absence of either the Secretary or Assistant
Secretary, a secretary appointed by the chairman, shall take the minutes of each
meeting of the Board. At all meetings of the Board, business may be transacted
in such order as the Board may from time to time determine.
Section 3.08. Telephonic Attendance. Where appropriate communication
facilities are reasonably available, any or all of the directors shall have the
right to participate in all or any part of a meeting of the Board or a committee
of the Board by means of conference telephone or any means of communication by
which all persons participating in the meeting are able to hear each other.
Section 3.09. Action Without a Meeting. Any action required or permitted
to be taken by the Board or by a committee thereof may be taken without a
meeting if, prior to such action, all of the members of the Board or committee
consent in writing to a resolution authorizing the action. Such written consents
may be executed in counterparts and shall be filed with the minutes of the
Corporation. Such consent shall have the same effect as a unanimous vote of the
Board or committee for all purposes and may be stated as such in any certificate
or other document filed with the Secretary or Treasurer of the State of New
Jersey or any similar public official.
Section 3.10. Vacancies. Any vacancy in the Board, whether caused by
death, resignation, removal, disqualification, an increase in the size of the
Board or any other cause, shall be filled by the affirmative vote of a majority
of the remaining Board, though less than a quorum, and any such director so
elected shall hold office until the next annual meeting of shareholders.
Section 3.11. Expenses and Compensation. Members of the Board shall be
reimbursed for all reasonable expenses incurred by them in connection with
attending Board or committee meetings. The Board may determine from time to time
fees to be paid to each member for service on the Board and any committee of the
Board. The fees may be based upon a specified amount per annum or a specified
amount per meeting attended, a combination of both, or any other reasonable
method. Except as otherwise determined by the Board, directors who are
compensated officers of the Corporation shall not be paid director's fees.
Section 3.12. Committees. The Board by resolution adopted by a majority of
the entire Board may appoint from among its members an Executive Committee and
one or more other committees, each of which shall have one or more members. To
the extent provided by such resolution, each such committee shall have and may
exercise all the authority of the Board, except that no such committee shall (a)
make, alter or repeal any by-law of the Corporation; (b) elect or appoint any
director, or remove any officer or director; (c) submit to shareholders any
action that requires shareholders' approval; or (d) amend or repeal any
resolution theretofore adopted by the Board which by its terms is amendable or
repealable only by the Board. The Board by resolution adopted by the affirmative
vote of a majority of the directors present at any meeting of the Board at which
a quorum is present may (a) fill any vacancy on any such committee; (b) appoint
one or more directors to serve as alternate members of any such committee, to
act in the absence or disability of members of any such committee with all the
powers of such absent or disabled members; (c) abolish any such committee at its
pleasure; and (d) remove any director from membership on such committee at any
time, with or without cause. Any actions taken at a meeting of any such
committee shall be reported to the Board at its next meeting following such
committee meeting, except that when the meeting of the Board is held within two
(2) days after the committee meeting, the report shall, if not made at the first
meeting, be made to the Board at the second meeting following the committee
meeting. If the committee establishes regular meeting dates, it shall not be
necessary to give notice of a regular meeting. Notice of every special meeting
shall be given in the manner and within the time periods specified in these
By-laws with respect to notices of special meetings of the Board. Notice of any
special meeting may be waived in writing by all absent members of the committee
either before or after the meeting.
ARTICLE IV
OFFICERS
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Section 4.01. Election and Term of Office. Immediately after the annual
meeting of the shareholders, the Board shall meet and elect or appoint, by the
affirmative vote of a majority of the directors present at such meeting of the
Board at which a quorum is present, a Chairman, a President, one or more Vice
Presidents, a Secretary, an Assistant Secretary, a Treasurer, an Assistant
Treasurer of the Corporation ("Assistant Treasurer") and such other officers as
the Board may from time to time determine as necessary. The Board shall also
have the authority, but shall not be required, to designate officers as the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or
similar such titles. Any two or more offices may be held by the same person. All
officers shall serve for a term of one (1) year, or until the election and
qualification of their successors, subject to the power of the Board to remove
any officer, with or without cause, by the affirmative vote of a majority of the
directors present at any meeting of the Board at which a quorum is present. Any
officer may resign by delivering his or her written resignation to the
Corporation at its principal office or to the Chairman, President or Secretary.
Section 4.02. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term by the affirmative vote of a majority of the
directors present at any meeting of the Board at which a quorum is present.
Section 4.03. Compensation. Officers of the Corporation shall be entitled
to such salaries, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board or officers of the Corporation to whom the
authority to fix or allow such salaries, compensation or reimbursement has been
delegated. No officer shall be prevented from receiving such salary,
compensation or reimbursement by reason of the fact that he or she is also a
director of the Corporation.
Section 4.04. Chairman of the Board. The Chairman shall be chosen from
among the members of the Board. The Chairman shall preside at all meetings of
the Board, except in his or her absence, the President of the Corporation shall
do so, and shall see that all orders and resolutions of the Board are carried
into effect. The Chairman shall also perform such other duties as may be
prescribed by the Board.
Section 4.05. President. The President shall be chosen from among the
members of the Board and shall be responsible for the general supervision of the
affairs of the Corporation. The President shall have the authority to execute
contracts on behalf of the Corporation. All other officers of the Corporation
shall be subject to the authority and supervision of the President. He or she
shall preside at all meetings, other than those of the Board, and shall act as
temporary chairman at and call to order all meetings of the shareholders in the
absence of the Chairman. The Board may direct the President to act as chairman
of or participate in or conduct meetings of the shareholders.
Section 4.06. Vice President. Each Vice President shall perform such
duties and have the authority as shall be delegated to him or her by the
Chairman, the President or the Board. In the absence of the President and the
Chairman, or in the event of the President's death, inability or refusal to act,
unless the Board determines otherwise, the Vice President designated as
successor for these purposes by the Board or, if there is none, the most senior
Vice President, shall perform the duties and be vested with the authority of the
President. The Board may designate, at its discretion, one or more Executive or
Senior Vice Presidents.
Section 4.07. Secretary. The Secretary shall give or cause to be given
notice of all meetings of the shareholders and the Board as prescribed in these
By-laws. The Secretary shall attend all meetings of the Board and of the
shareholders, and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose. He or she shall have charge of the
Corporation's seal, the stock certificate book and ledger and such other books
and papers as the Board may prescribe. The Secretary shall keep records of the
number of uncertificated shares of the Corporation's stock, if any, and the
holders thereof. He or she shall make such reports to the Board as they may
request and shall prepare and cause to be filed such reports and statements as
may be required by statute. The Secretary shall perform whatever other duties
and possess whatever other powers as are incident to the office or as are
assigned by the Chairman, the President or the Board.
Section 4.08. Assistant Secretary. The Assistant Secretary shall, or if
there shall be more than one, the Assistant Secretaries, in the order determined
by the Board, in the absence or disability of the Secretary, perform the duties
and exercise the powers of the Secretary set forth herein and as the Board may
from time to time prescribe.
Section 4.09. Treasurer. The Treasurer shall have the care and custody of
all the funds and securities of the Corporation, and shall deposit the same in
the name of the Corporation in such bank or banks as the Board may designate,
and shall disburse the same under such rules and regulations as may be made by
the Board, and shall perform such other duties as the Board may from time to
time prescribe. The Treasurer shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation, and shall see that all
expenditures are duly authorized and are evidenced by proper receipts and
vouchers. The Treasurer shall render to the Chairman, the President and the
members of the Board, whenever they may require it, an account of all his or her
transactions as Treasurer, and of the financial condition of the Corporation.
The Treasurer shall perform whatever other duties and possess whatever other
powers as are incident to the office or as are assigned by the Chairman, the
President or the Board.
Section 4.10. Assistant Treasurer. The Assistant Treasurer shall, or if
there shall be more than one, the Assistant Treasurers, in the order determined
by the Board, in the absence or disability of the Treasurer, perform the duties
and exercise the powers of the Treasurer set forth herein and as the Board may
from time to time prescribe.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
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Section 5.01. Certificates. The shares of capital stock of the Corporation
shall be represented by certificates, provided that the Board may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board,
every holder of stock represented by certificates, and upon request, every
holder of uncertificated shares, shall be entitled to have a certificate signed
by, or in the name of the Corporation by, the Chairman, or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary, representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue. Every certificate
exchanged or returned to the Corporation shall be marked "cancelled," with the
date of cancellation.
Section 5.02. Lost, Stolen or Destroyed Certificates. The holder of any
shares shall immediately notify the Corporation of any lost, stolen or destroyed
certificate representing such shares. The Board, in its discretion, or any
officer or officers thereunto duly authorized by the Board, may authorize the
issuance of a substitute certificate in place of the certificate so lost, stolen
or destroyed; provided, however, that, in each such case, the applicant for a
substitute certificate shall furnish evidence to the Corporation which the
Board, or any authorized officer or officers, determines is satisfactory of the
loss, theft or destruction of such certificate and of the ownership thereof, and
also such security or indemnity as may be required by the Board.
Section 5.03. Stock Record Books. The stock record books and the blank
stock certificate books shall be kept by the Secretary or by any other officer
or agent designated by the Board.
Section 5.04. Transfers of Shares. Except as otherwise established by
rules and regulations adopted by the Board, and subject to applicable law,
shares of stock may be transferred on the books of the Corporation by the
surrender to the Corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or the authenticity of signature as the Corporation or its transfer
agent may reasonably require. Except as may be otherwise required by law, by the
Certificate of Incorporation or by these By-laws, the Corporation shall be
entitled to treat the record holder of stock as shown in its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of
the Corporation in accordance with the requirements of these By-laws.
Section 5.05. Restrictions on Transfers. Each certificate for shares of
stock which is subject to any restriction on transfer pursuant to the
Certificate of Incorporation, these By-laws, applicable securities laws or any
agreement among any number of shareholders or among such holders and the
Corporation shall have conspicuously noted on the face or back of the
certificate either the full text of the restriction or a statement of the
existence of such restriction. Notwithstanding anything to the contrary
contained in these By-laws, the Corporation shall not be required or permitted
to make any transfer of shares of the Corporation which violate the terms and
provisions of any agreement restricting the transfer of shares of the
Corporation to which the Corporation shall be a party; provided, that the
restriction upon the transfer of the shares represented by any stock certificate
shall be set forth or referred to upon the certificate. Subject to the
provisions of these By-laws, the Board may make such rules and regulations as it
may deem expedient concerning the issuance, transfer and registration of
certificates for shares of the Corporation.
Section 5.06. Issuance of Stock. Unless otherwise voted by the
shareholders and subject to the provisions of the Certificate of Incorporation,
the whole or any part of any unissued balance of the authorized capital stock of
the Corporation, or the whole or any part of any unissued balance of the
authorized capital stock of the Corporation held in its treasury, may from time
to time be issued, sold, transferred or otherwise disposed of by vote of the
Board in such manner, for such consideration and on such terms as the Board may
determine.
ARTICLE VI
INDEMNIFICATION
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Section 6.01. Third Party Claims. The Corporation shall indemnify
each Corporate Agent (as defined below) against his or her expenses and
liabilities actually and reasonably incurred in connection with any proceeding
involving the Corporate Agent by reason of his or her being or having been such
a Corporate Agent, other than a proceeding by or in the right of the
Corporation, if (a) such Corporate Agent acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation, and (b) with respect to any criminal proceeding, such Corporate
Agent had no reasonable cause to believe his or her conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that such Corporate Agent did not meet the applicable standards of
conduct set forth in subparts (a) and (b) herein. For purposes of this Article
VI, a "Corporate Agent" shall mean any person who is or was a director, officer,
employee or agent of the Corporation or of any constituent corporation absorbed
by the Corporation in consolidation or merger and any person who is or was a
director, officer, trustee, employee or agent of any other enterprise (any
domestic or foreign corporation other than the Corporation, and any partnership,
joint venture, sole proprietorship, trust or other enterprise, whether or not
for profit, served by such person), serving as such at the request of the
Corporation, or of any such constituent corporation, or the legal representative
of any such director, officer, trustee, employee or agent.
Section 6.02. Claims by Corporation. The Corporation shall indemnify a
Corporate Agent against his or her liabilities and expenses, actually or
reasonably incurred by him or her in connection with any proceeding by or in the
right of the Corporation to procure a judgment in its favor which involves the
Corporate Agent by reason of his or her being or having been such Corporate
Agent, if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation.
However, in such proceeding no indemnification shall be provided in respect of
any claim, issue or matter as to which such Corporate Agent shall have been
adjudged liable to the Corporation, unless and only to the extent that the New
Jersey Superior Court or the court in which such proceeding was brought shall
determine upon application that despite the adjudication of liability, but in
view of all circumstances of the case, such Corporate Agent is fairly and
reasonably entitled to indemnity for such expenses or liabilities as the New
Jersey Superior Court or such other court shall deem proper.
Section 6.03. Expenses. The Corporation shall indemnify a Corporate Agent
against expenses, including attorneys fees, to the extent that such Corporate
Agent has been successful on the merits or otherwise in any proceeding referred
to in Sections 6.01 and 6.02 of this Article VI or in defense of any claim,
issue or matter therein.
Section 6.04. Determination of Indemnification Obligation. Any
indemnification under Section 6.01 of this Article and, unless ordered by a
court, under Section 6.02 of this Article, may be made by the Corporation only
as authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the Corporate Agent met the applicable
standard of conduct set forth in Sections 6.01 or 6.02 of this Article. Such
determination shall be made: (a) by the Board by a majority vote of a quorum
consisting of directors who were not parties to or otherwise involved in the
proceeding; (b) if such a quorum is not obtainable, or, even if obtainable and
such quorum of the Board by a majority vote of the disinterested directors so
directs, by independent legal counsel in a written opinion, such counsel to be
designated by the Board; or (c) by the shareholders.
Section 6.05. Payment of Expenses in Advance. Expenses incurred by a
Corporate Agent in connection with a proceeding may be paid by the Corporation
in advance of the final disposition of the proceeding, as authorized by the
Board, upon receipt of an undertaking by or on behalf of the Corporate Agent to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified as provided in this Article.
Section 6.06. Other Rights. The indemnification and advancement of
expenses provided by or granted pursuant to the other sections of this Article
VI shall not exclude any other rights to which a Corporate Agent may be entitled
under the Certificate of Incorporation, a by-law, agreement, vote of
shareholders, or otherwise; provided that no indemnification shall be made to or
on behalf of a Corporate Agent if a judgment or other final adjudication adverse
to the Corporate Agent establishes that his or her acts or omissions (a) were in
breach of his or her duty of loyalty to the Corporation or its shareholders; (b)
were not in good faith or involved a knowing violation of law; or (c) resulted
in receipt by the Corporate Agent of an improper personal benefit.
Section 6.07. Insurance. The Corporation shall have the power to purchase
and maintain insurance on behalf of any Corporate Agent against any expenses
incurred in any proceeding and any liabilities asserted against him or her by
reason of his or her being or having been a Corporate Agent, whether or not the
Corporation would have the power to indemnify him or her against such expenses
and liabilities under the provisions of this Article. The Corporation may
purchase such insurance from, or such insurance may be reinsured in whole or in
part by, an insurer owned by or otherwise affiliated with the Corporation,
whether or not such insurer does business with other insureds.
ARTICLE VII
MISCELLANEOUS
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Section 7.01. Loans. No loans or advances shall be contracted on behalf of
the Corporation and no negotiable paper shall be issued in its name, unless and
except as authorized by the Board and in accordance with the laws of New Jersey
and of the United States. Such authorization may be general or confined to
specific instances. An officer or agent of the Corporation so authorized may do
every act and thing necessary or proper in connection with effecting such loans
or advances as authorized by the Board.
Section 7.02. Corporate Seal. The Corporation shall have a seal with the
name of the Corporation, the year of its organization, the words "Corporate
Seal" and the state of incorporation thereon.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall end on
the Saturday nearest to the 31st of October of each year.
Section 7.04. Interested Parties. No contract or transaction between the
Corporation and one or more of the Corporation's directors or officers, or
between the Corporation any other corporation, partnership, association or other
organization in which one or more of the Corporation's directors or officers are
directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at
or participates in the meeting of the Board or a committee of the Board which
authorizes the contract or transaction or solely because his, her or their votes
are counted for such purpose, if any one of the following is true: (a) the
contract or other transaction is fair and reasonable as to the Corporation at
the time it is authorized, approved or ratified; (b) the fact of the common
directorship or interest is disclosed or known to the Board or committee and the
Board or committee authorizes, approves or ratifies the contract or transaction
by unanimous written consent, provided at least one director so consenting is
disinterested, or by affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (c)
the fact of the common directorship or interest is disclosed or known to the
shareholders, and they authorize, approve or ratify the contract or transaction.
Common or interested directors may be counted in determining the presence of a
quorum at a Board or committee meeting at which such contract or transaction is
authorized, approved or ratified.
Section 7.05. Amendments. These By-laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of a majority of
the directors present at any regular or special meeting of the Board at which a
quorum is present. These By-laws may also be altered, amended or repealed or new
by-laws may be adopted by the affirmative vote of the holders of a majority of
the shares of the issued and outstanding Common Stock of the Corporation and
entitled to vote at any regular meeting of shareholders or at any special
meeting of shareholders, provided notice of such alteration, amendment, repeal
or adoption of new by-laws shall have been stated in the notice of such special
meeting. The shareholders may prescribe in the by-laws that any by-law made by
them shall not be altered or repealed by the Board.
Section 7.06. Force and Effect of By-laws. These By-laws are subject to
the provisions of the law of the State of New Jersey and the Certificate of
Incorporation, as it may be amended from time to time. If any provision of these
By-laws is inconsistent with a provision of any statute or of the Certificate of
Incorporation, the provision of the statute or the Certificate of Incorporation
shall govern. Any determination that any provision of these By-laws is for any
reason inapplicable, illegal or ineffective shall not affect or invalidate any
other provision of these By-laws.
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Amended and Restated on April 14, 2004