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EX-3.1 - EX-3.1 - GENTEK INC | y80120exv3w1.htm |
8-K - FORM 8-K - GENTEK INC | y80120e8vk.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
GENTEK INC.
(a Delaware corporation)
BY-LAWS
OF
GENTEK INC.
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly come before the meeting
shall be held each year at such date and time, within or without the State of Delaware, as the
Board of Directors shall determine.
SECTION 2. Special Meetings. Special meetings of stockholders for the transaction of
such business as may properly come before the meeting may be called by order of the Board of
Directors or by stockholders holding together at least a majority of all the shares of the
Corporation entitled to vote at the meeting, and shall be held at such date and time, within or
without the State of Delaware, as may be specified by such order. Whenever the directors shall
fail to fix such place, the meeting shall be held at the principal executive office of the
Corporation.
SECTION 3. Notice of Meetings. Written notice of all meetings of the stockholders
shall be mailed or delivered to each stockholder not less than 10 nor more than 60 days prior to
the meeting. Notice of any special meeting shall state in general terms the purpose or purposes
for which the meeting is to be held.
SECTION 4. Stockholder Lists. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, 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 the meeting, either at a place within the city where the meeting is 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. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by this section or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
SECTION 5. Quorum. Except as otherwise provided by law or the Corporations
Certificate of Incorporation, a quorum for the transaction of business at any meeting of
stockholders shall consist of the holders of record of a majority of the issued and outstanding
shares of the capital stock of the Corporation entitled to vote at the meeting, present in person
or by proxy. At all meetings of the stockholders at which
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a quorum is present, all matters, except as otherwise provided by law or the Corporations
Certificate of Incorporation, shall be decided by the vote of the holders of a majority of the
shares entitled to vote thereat present in person or by proxy. If there be no such quorum, the
holders of a majority of such shares so present or represented may adjourn the meeting from time to
time, without further notice, until a quorum shall have been obtained. When a quorum is once
present it is not broken by the subsequent withdrawal of any stockholder.
SECTION 6. Organization. Meetings of stockholders shall be presided over by the
Chairman, if any, or if none or in the Chairmans absence the Vice-Chairman, if any, or if none or
in the Vice-Chairmans absence the President, if any, or if none or in the Presidents absence a
Vice-President, or, if none of the foregoing is present, by a chairman to be chosen by the
stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary
of the Corporation, or in the Secretarys absence an Assistant Secretary, shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall appoint any person present to act as secretary of the meeting.
SECTION 7. Voting; Proxies; Required Vote. (a) At each meeting of stockholders,
every stockholder shall be entitled to vote in person or by proxy appointed by instrument in
writing, subscribed by such stockholder or by such stockholders duly authorized attorney-in-fact,
and, unless the Corporations Certificate of Incorporation provides otherwise, shall have one vote
for each share of stock entitled to vote registered in the name of such stockholder on the books of
the Corporation on the applicable record date fixed pursuant to these By-laws. At all elections of
directors the voting may but need not be by ballot and a plurality of the votes cast there shall
elect. Except as otherwise required by law or the Corporations Certificate of Incorporation, any
other action shall be authorized by a majority of the votes cast.
(b) Any action required or permitted to be taken at any meeting of stockholders may, except as
otherwise required by law or the Corporations Certificate of Incorporation, 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 the holders of record of the issued and outstanding capital stock of
the Corporation having a majority of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted, and the writing
or writings are filed with the permanent records of the Corporation. Prompt notice of the taking
of corporate action without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
(c) Where a separate vote by a class or classes, present in person or represented by proxy,
shall constitute a quorum entitled to vote on that matter, the affirmative vote of the majority of
shares of such class or classes present in person or represented by proxy at the meeting shall be
the act of such class, unless otherwise provided in the Corporations Certificate of Incorporation.
SECTION 8. Inspectors. The Board of Directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election to act at the meeting or any adjournment
thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting
may, but need not, appoint one or more inspectors. In
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case any person who may be appointed as an inspector fails to appear or act, the vacancy may
be filled by appointment made by the directors in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector, if any, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The inspectors, if any, shall
determine the number of shares of stock outstanding and the voting power of each, the shares of
stock represented at the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the meeting, the inspector or
inspectors, if any, shall make a report in writing of any challenge, question or matter determined
by such inspector or inspectors and execute a certificate of any fact found by such inspector or
inspectors.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the Corporation
shall be managed by, or under the direction of, the Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each director shall be at
least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The number of directors constituting the entire Board shall be
one, or such larger number as may be fixed from time to time by action of the stockholders or Board
of Directors, one of whom may be selected by the Board of Directors to be its Chairman. The use of
the phrase entire Board herein refers to the total number of directors which the Corporation
would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of stockholders, and directors who are
elected in the interim to fill vacancies and newly created directorships, shall hold office until
the next annual meeting of stockholders and until their successors are elected and qualified or
until their earlier resignation or removal.
(c) Directors may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided by law, a
majority of the entire Board shall constitute a quorum. A majority of the directors present,
whether or not a quorum is present, may adjourn a meeting from time to time to another time and
place without notice. The vote of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
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SECTION 4. Places of Meetings. Meetings of the Board of Directors may be held at any
place within or without the State of Delaware, as may from time to time be fixed by resolution of
the Board of Directors, or as may be specified in the notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of stockholders, the newly
elected Board of Directors shall meet for the purpose of the election of officers and the
transaction of such other business as may properly come before the meeting. Such meeting may be
held without notice immediately after the annual meeting of stockholders at the same place at which
such stockholders meeting is held.
SECTION 6. Regular Meetings. Regular meetings of the Board of Directors shall be held
at such times and places as the Board of Directors shall from time to time by resolution determine.
SECTION 7. Special Meetings. Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board, the President or by a majority of the directors then
in office.
SECTION 8. Notice of Meetings. A notice of the place, date and time and the purpose
or purposes of each meeting of the Board of Directors shall be given to each director by mailing
the same at least two days before the meeting, or by telegraphing or telephoning or e-mailing the
same or by delivering the same personally not later than the day before the day of the meeting.
SECTION 9. Organization. At all meetings of the Board of Directors, the Chairman, if
any, or if none or in the Chairmans absence or inability to act the President, or in the
Presidents absence or inability to act any Vice-President who is a member of the Board of
Directors, or in such Vice-Presidents absence or inability to act a chairman chosen by the
directors, shall preside. The Secretary of the Corporation shall act as secretary at all meetings
of the Board of Directors when present, and, in the Secretarys absence, the presiding officer may
appoint any person to act as secretary.
SECTION 10. Resignation. Any director may resign at any time upon written notice to
the Corporation and such resignation shall take effect upon receipt thereof by the President or
Secretary, unless otherwise specified in the resignation. Any or all of the directors may be
removed, with or without cause, by the holders of a majority of the shares of stock outstanding and
entitled to vote for the election of directors.
SECTION 11. Vacancies. Unless otherwise provided in these By-laws, vacancies on the
Board of Directors, whether caused by resignation, death, disqualification, removal, an increase in
the authorized number of directors or otherwise, may be filled by the affirmative vote of a
majority of the remaining directors, although less than a quorum, or by a sole remaining director,
or at a special meeting of the stockholders, by the holders of shares entitled to vote for the
election of directors.
SECTION 12. Action by Written Consent. Any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a
meeting if all the directors consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board of Directors.
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ARTICLE III
Committees
SECTION 1. Appointment. From time to time the Board of Directors by a resolution
adopted by a majority of the entire Board may appoint any committee or committees for any purpose
or purposes, to the extent lawful, which shall have powers as shall be determined and specified by
the Board of Directors in the resolution of appointment.
SECTION 2. Procedures, Quorum and Manner of Acting. Each committee shall fix its own
rules of procedure, and shall meet where and as provided by such rules or by resolution of the
Board of Directors. Except as otherwise provided by law, the presence of a majority of the then
appointed members of a committee shall constitute a quorum for the transaction of business by that
committee, and in every case where a quorum is present the affirmative vote of a majority of the
members of the committee present shall be the act of the committee. Each committee shall keep
minutes of its proceedings, and actions taken by a committee shall be reported to the Board of
Directors.
SECTION 3. Action by Written Consent. Any action required or permitted to be taken at
any meeting of any committee of the Board of Directors may be taken without a meeting if all the
members of the committee consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the committee.
SECTION 4. Term; Termination. In the event any person shall cease to be a director of
the Corporation, such person shall simultaneously therewith cease to be a member of any committee
appointed by the Board of Directors.
ARTICLE IV
Officers
SECTION 1. Election and Qualifications. The Board of Directors shall elect the
officers of the Corporation, which shall include a President and a Secretary, and may include, by
election or appointment, one or more Vice-Presidents (any one or more of whom may be given an
additional designation of rank or function), a Treasurer and such Assistant Secretaries, such
Assistant Treasurers and such other officers as the Board may from time to time deem proper. Each
officer shall have such powers and duties as may be prescribed by these By-laws and as may be
assigned by the Board of Directors or the President. Any two or more offices may be held by the
same person except the offices of President and Secretary.
SECTION 2. Term of Office and Remuneration. The term of office of all officers shall
be one year and until their respective successors have been elected and qualified, but any officer
may be removed from office, either with or without cause, at any time by the Board of Directors.
Any vacancy in any office arising from any cause
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may be filled for the unexpired portion of the term by the Board of Directors. The
remuneration of all officers of the Corporation may be fixed by the Board of Directors or in such
manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any time upon written
notice to the Corporation and such resignation shall take effect upon receipt thereof by the
President or Secretary, unless otherwise specified in the resignation. Any officer shall be
subject to removal, with or without cause, at any time by vote of a majority of the entire Board.
SECTION 4. Chairman of the Board. The Chairman of the Board of Directors, if there be
one, shall preside at all meetings of the Board of Directors and shall have such other powers and
duties as may from time to time be assigned by the Board of Directors.
SECTION 5. President and Chief Executive Officer. The President shall be the chief
executive officer of the Corporation, and shall have such duties as customarily pertain to that
office. The President shall have general management and supervision of the property, business and
affairs of the Corporation and over its other officers; may appoint and remove assistant officers
and other agents and employees; and may execute and deliver in the name of the Corporation powers
of attorney, contracts, bonds and other obligations and instruments.
SECTION 6. Vice-President. A Vice-President may execute and deliver in the name of
the Corporation contracts and other obligations and instruments pertaining to the regular course of
the duties of said office, and shall have such other authority as from time to time may be assigned
by the Board of Directors or the President.
SECTION 7. Treasurer. The Treasurer shall in general have all duties incident to the
position of Treasurer and such other duties as may be assigned by the Board of Directors or the
President.
SECTION 8. Secretary. The Secretary shall in general have all the duties incident to
the office of Secretary and such other duties as may be assigned by the Board of Directors or the
President.
SECTION 9. Assistant Officers. Any assistant officer shall have such powers and
duties of the officer such assistant officer assists as such officer or the Board of Directors
shall from time to time prescribe.
ARTICLE V
Books and Records
SECTION 1. Location. The books and records of the Corporation may be kept at such
place or places within or outside the State of Delaware as the Board of Directors or the respective
officers in charge thereof may from time to time determine. The record books containing the names
and addresses of all stockholders, the number and class of shares of stock held by each and the
dates when they respectively became the
owners of record thereof shall be kept by the Secretary as prescribed in the By-laws and by
such officer or agent as shall be designated by the Board of Directors.
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SECTION 2. Addresses of Stockholders. Notices of meetings and all other corporate
notices may be delivered personally or mailed to each stockholder at the stockholders address as
it appears on the records of the Corporation.
SECTION 3. 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 of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than 60 nor less than 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 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 of Directors 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 writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action in writing without
a meeting, when no prior action by the Board of Directors is required, 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 Corporations 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 of Directors and prior action by the Board of Directors is required by
this chapter, 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 of
Directors 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 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. 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 of Directors adopts the resolution relating
thereto.
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ARTICLE VI
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors of the Corporation 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 of Directors, 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 Vice-Chairman of the Board of Directors, or the
President or a Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary of the Corporation, representing the number of shares registered in
certificate form. Any and all signatures on any such certificate may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. The name of the holder of record of the
shares represented thereby, with the number of such shares and the date of issue, shall be entered
on the books of the Corporation.
SECTION 2. Transfers of Stock. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, shares of capital stock shall be
transferable on the books of the Corporation only by the holder of record thereof in person, or by
duly authorized attorney, upon surrender and cancellation of certificates for a like number of
shares, properly endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall not be required to,
issue certificates for fractions of a share where necessary to effect authorized transactions, or
the Corporation may pay in cash the fair value of fractions of a share as of the time when those
entitled to receive such fractions are determined, or it may issue scrip in registered or bearer
form over the manual or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to
any rights of a stockholder except as therein provided.
The Board of Directors shall have power and authority to make all such rules and regulations
as it may deem expedient concerning the issue, transfer and registration of certificates
representing shares of the Corporation.
SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation may issue a new
certificate of stock in place of any certificate, theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Board of Directors may require the owner of any lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made against it on account of the alleged
loss, theft or destruction of any such certificate or the issuance of any such new certificate.
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ARTICLE VII
Dividends
Subject always to the provisions of law and the Corporations Certificate of Incorporation,
the Board of Directors shall have full power to determine whether any, and, if any, what part of
any, funds legally available for the payment of dividends shall be declared as dividends and paid
to stockholders; the division of the whole or any part of such funds of the Corporation shall rest
wholly within the lawful discretion of the Board of Directors, and it shall not be required at any
time, against such discretion, to divide or pay any part of such funds among or to the stockholders
as dividends or otherwise; and before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board of Directors from
time to time, in its absolute discretion, thinks proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall think conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in
the manner in which it was created.
ARTICLE VIII
Ratification
Any transaction, questioned in any law suit on the ground of lack of authority, defective or
irregular execution, adverse interest of director, officer or stockholder, non-disclosure,
miscomputation, or the application of improper principles or practices of accounting, may be
ratified before or after judgment, by the Board of Directors or by the stockholders, and if so
ratified shall have the same force and effect as if the questioned transaction had been originally
duly authorized. Such ratification shall be binding upon the Corporation and its stockholders and
shall constitute a bar to any claim or execution of any judgment in respect of such questioned
transaction.
ARTICLE IX
Corporate Seal
The corporate seal shall have inscribed thereon the name of the Corporation and the year of
its incorporation, and shall be in such form and contain such other words and/or figures as the
Board of Directors shall determine. The corporate seal may be used by printing, engraving,
lithographing, stamping or otherwise making, placing or affixing, or causing to be printed,
engraved, lithographed, stamped or otherwise made, placed or affixed, upon any paper or document,
by any process whatsoever, an impression, facsimile or other reproduction of said corporate seal.
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ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the
Board of Directors. Unless otherwise fixed by the Board of Directors, the fiscal year of the
Corporation shall be the calendar year.
ARTICLE XI
Waiver of Notice
Whenever notice is required to be given by these By-laws or by the Corporations Certificate
of Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE XII
Bank Accounts, Drafts, Contracts, Etc.
SECTION 1. Bank Accounts and Drafts. In addition to such bank accounts as may be
authorized by the Board of Directors, the primary financial officer or any person designated by
said primary financial officer, whether or not an employee of the Corporation, may authorize such
bank accounts to be opened or maintained in the name and on behalf of the Corporation as he may
deem necessary or appropriate, payments from such bank accounts to be made upon and according to
the check of the Corporation in accordance with the written instructions of said primary financial
officer, or other person so designated by the Treasurer.
SECTION 2. Contracts. The Board of Directors may authorize any person or persons, in
the name and on behalf of the Corporation, to enter into or execute and deliver any and all deeds,
bonds, mortgages, contracts and other obligations or instruments, and such authority may be general
or confined to specific instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The Chairman, the
President or any other person designated by either of them shall have the power and authority to
execute and deliver proxies, powers of attorney and other instruments on behalf of the Corporation
in connection with the rights and powers incident to the ownership of stock by the Corporation.
The Chairman, the President or any other person authorized by proxy or power of attorney executed
and delivered by either of them on behalf of the Corporation may attend and vote at any meeting of
stockholders of any company in which the Corporation may hold stock, and may exercise on behalf of
the Corporation any and all of the rights and powers incident to the ownership of such stock at any
such meeting, or otherwise as specified in the proxy or power of attorney so authorizing any such
person. The Board of Directors, from time to time, may confer like powers upon any other person.
SECTION 4. Financial Reports. The Board of Directors may appoint the primary
financial officer or other fiscal officer and/or the Secretary or any other
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officer to cause to be prepared and furnished to stockholders entitled thereto any special
financial notice and/or financial statement, as the case may be, which may be required by any
provision of law.
ARTICLE XIII
Amendments
The Board of Directors shall have power to adopt, amend or repeal By-laws. By-laws adopted by
the Board of Directors may be repealed or changed, and new By-laws made, by the stockholders, and
the stockholders may prescribe that any By-law made by them shall not be altered, amended or
repealed by the Board of Directors.
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