EXHIBIT 3
RESTATED CERTIFICATE OF INCORPORATION
AND BYLAWS
RESTATED CERTIFICATE OF INCORPORATION
OF
THOMAS & BETTS CORPORATION
To: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:9-5 of the New Jersey
Business Corporation Act, the undersigned corporation hereby executes
the following Restated Certificate of Incorporation.
FIRST: The name of the Corporation is Thomas & Betts Corporation.
SECOND: The purpose or purposes for which the Corporation is
organized are:
(1) To make and deal in proprietary and manufactured articles of all
kinds and description and in electrical, chemical, photographical,
surgical and scientific apparatus, devices and machinery of all kinds,
and to carry on any other manufacturing, trading or distributing
business, such as merchants, factors, agents or otherwise.
(2) To carry on a general contracting business; to do electrical
work of every kind and description, including the business of
electricians, electrical and mechanical engineers and dealers, either as
principals or agents, in electric motors, dynamos and electrical
machinery, appliances, plants and supplies of any nature or kind
whatsoever; to construct, erect, install, alter, repair, equip and deal
in works, plants, instruments and machinery for generating, supplying
and distributing electricity for light, heat, power or other purposes.
(3) To manufacture, purchase or otherwise acquire, hold, own,
mortgage, sell, assign and transfer, invest, trade, deal in and with
other goods, wares, merchandise and property of every class and
description, and generally to purchase, take on lease or in exchange,
hire or otherwise acquire, deal in and with both real and personal
property and any rights or privileges which the Corporation may consider
necessary or convenient for the purpose of its business aforesaid.
(4) To purchase or otherwise acquire the business or property of any
person, firm, association or corporation, and to pay for the same in
cash, stock or bonds of the Corporation or otherwise, and to hold or in
any manner dispose of the whole or any part of the business or property
so purchased, or to conduct or manage in any lawful manner the whole or
any part of the business or property so acquired, and to exercise all
the powers necessary or convenient in and about the conducting and
managing of such business or property.
(5) To purchase or otherwise acquire, hold, sell or otherwise
dispose of stocks, bonds, debentures, notes, or other evidences of
indebtedness of any corporation, including its own, for cash, or real or
personal property, or in exchange for stocks, bonds, debentures, notes,
or other evidences of indebtedness of any corporation, including its
own, with full power to borrow such moneys as may be necessary for the
purpose of its business, and to make and issue promissory notes, bills
of exchange, bonds, debentures, obligations and evidences of
indebtedness of all kinds, whether secured by mortgage, pledge, or
otherwise, without limit as to amount, and to secure the same by
mortgage, pledge, or otherwise; but it is not intended hereby to provide
for and authorize the transaction of a banking business.
(6) To purchase, acquire, hold, use, enjoy, deal in and dispose of
inventions, improvements, letters patent, patent rights, processes,
trademarks and devices and to grant licenses to use the same, and to do
and transact all lawful business incidental to any or all of the above-
mentioned objects.
(7) To make any guarantees respecting dividends, bonds, interest,
contracts or other obligations of this or other corporations.
(8) The Corporation shall also have power to conduct its business
in all its branches at one or more offices and without limitation to
purchase, acquire, hold, sell, lease, mortgage and convey real and
personal property in any state, territory or possession of the United
States and in any foreign country or place.
(9) The foregoing clauses shall be construed both as objects and
powers; and it is hereby expressly provided that the foregoing
enumeration of specific powers shall not be held to limit or restrict in
any manner the general powers of the Corporation.
THIRD: (1) The aggregate number of shares which the Corporation
is authorized to issue is 40,500,000 shares, consisting of 40,000,000
shares of Common Stock, par value $.50 per share, and 500,000 shares of
Preferred Stock, no par value. The designations, relative rights,
preferences and limitations of the shares of each class shall be as
follows:
COMMON STOCK
The Common Stock shall have full voting rights and shall entitle the
holders thereof to one vote for each share of Common Stock held by them.
PREFERRED STOCK
Subject to the provisions hereof, the Board of Directors is hereby
expressly authorized to issue the shares of Preferred Stock in series
and to fix from time to time before issuance the number of shares to be
included in each series and the designations, relative rights,
preferences and limitations of all shares of each series. The
authority of the Board of Directors with respect to each series shall
include, without limitation, the determination of any or all of the
following matters:
(a) The number of shares constituting such series and the
designation thereof to distinguish the shares of such series from the
shares of all other series;
(b) The annual dividend rate on the shares of such series and
whether such dividends shall be cumulative and, if cumulative, the date
from which dividends shall accumulate;
(c) The redemption price or prices for shares of such series, if
redeemable, and the terms and conditions of such redemption;
(d) The preference, if any, of shares of such series in the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation;
(e) The voting rights, if any, of shares of such series in
addition to the voting rights prescribed by law and the terms of
exercise of such voting rights;
(f) The right, if any, of shares of such series to be converted
into shares of any other series or class and the terms and conditions of
such conversion;
(g) The terms or amount of any sinking fund provided for the
purchase or redemption of such series; and
(h) Any other relative rights, preferences and limitations of
such series.
The shares of each series may vary from the shares of any other
series as to any of such matters.
Dividends on all outstanding shares of Preferred Stock must be
declared and paid, or set aside for payment before any dividends may be
declared and paid, or set aside for payment, on shares of Common Stock
with respect to the same dividend period.
(2) Except as may otherwise be provided by the Board of Directors,
no holder of any shares of the stock of the Corporation shall have any
preemptive rights to purchase, subscribe for, or otherwise acquire any
shares of stock of the Corporation of any class now or hereafter
authorized, or any securities exchangeable for or convertible into such
shares, or any warrants or other instruments evidencing rights or
options to subscribe for, purchase or otherwise acquire such shares.
FOURTH: The address of the Corporation's current registered office
is 28 West State Street, Trenton, New Jersey 08608, and the name of its
current registered agent at such address is The Corporation Trust
Company.
FIFTH: The number of directors constituting the current board of
directors is eleven (11). The names and addresses of the directors are
as follows:
NAMES ADDRESSES
Hobart Betts 1555 Lynnfield Road, Memphis, Tennessee 38119
Raymond B. Carey, Jr. 1555 Lynnfield Road, Memphis, Tennessee 38119
Ernest H. Drew 1555 Lynnfield Road, Memphis, Tennessee 38119
T. Kevin Dunnigan 1555 Lynnfield Road, Memphis, Tennessee 38119
Thomas W. Jones 1555 Lynnfield Road, Memphis, Tennessee 38119
Robert H. McCaffrey 1555 Lynnfield Road, Memphis, Tennessee 38119
Clyde R. Moore 1555 Lynnfield Road, Memphis, Tennessee 38119
J. David Parkinson 1555 Lynnfield Road, Memphis, Tennessee 38119
Ian M. Ross 1555 Lynnfield Road, Memphis, Tennessee 38119
Jerre L. Stead 1555 Lynnfield Road, Memphis, Tennessee 38119
William H. Waltrip 1555 Lynnfield Road, Memphis, Tennessee 38119
SIXTH: The duration of the Corporation shall be perpetual.
SEVENTH: (1) The property, affairs, and business of the Corporation
shall be managed by a Board of Directors which shall exercise all the
powers of the Corporation without action by the stockholders, except as
otherwise expressly provided by statute or by the Certificate of
Incorporation or by the By-laws. The number of directors which shall
constitute the full Board shall be such as from time to time shall be
fixed by the By-laws and such number may be altered from time to time in
the manner provided in the By-laws; but such number shall in no case be
less than three.
(2) The Board of Directors shall have power to hold its meetings
outside of the State of New Jersey at such places as from time to time
may be designated by the By-laws or by resolution of the Board.
(3) The By-laws may prescribe the number of directors necessary to
constitute a quorum of the Board of Directors, which number may be less
than a majority of the whole number of the Board of Directors.
(4) The Board of Directors may appoint from the directors an
executive committee, of which a majority shall constitute a quorum; and
to such extent as shall be provided in the By-laws, such committee shall
have and may exercise all or any of the powers of the Board of Directors
during intervals between meetings of the Board, including the power to
cause the seal of the Corporation to be affixed to all papers that may
require it.
(5) The Board of Directors shall have power from time to time to fix
and determine and to vary the amount of the working capital of the
Corporation; and to direct and determine the use and disposition of any
surplus or net profits over and above the capital stock paid in; and in
its discretion the Board of Directors may use and apply any such surplus
or net profits in purchasing or acquiring its bonds or other
obligations, or shares of its own capital stock, to such extent and in
such manner and upon such terms as the Board of Directors shall deem
expedient; but shares of such capital stock so purchased or acquired may
be resold, unless such shares shall have been retired for the purpose of
decreasing the Corporation's capital stock.
(6) The Board of Directors shall determine from time to time whether
and to what extent, and at what time and places, and under what
conditions and regulations, the accounts and books of the Corporation,
or any of them, shall be open to the inspection of stockholders, and no
stockholder shall have any right to inspect any account or book or
document of the Corporation, except as conferred by statute or
authorized by the Board of Directors, or by a resolution of the
stockholders.
(7) The Board of Directors may make By-laws, and, from time to time,
may alter, amend or repeal any By-Laws; but any By-laws made, altered or
amended by the Board of Directors may be altered, amended or repealed by
the stockholders at any annual meeting, or at any special meeting,
provided notice of such proposed alteration, amendment or repeal be
included in the notice of meeting.
EIGHTH: (1) (a) Except as otherwise provided herein, no purchase
by the Corporation from any Interested Person (as hereinafter defined)
of shares of any stock of the Corporation owned by such Interested
Person shall be made at a price exceeding the average price paid by such
Interested Person for all shares of stock of the Corporation acquired by
such Interested Person during the two-year period preceding the date of
such proposed purchase unless such purchase is approved by the
affirmative vote of not less than two-thirds of the votes cast by
Disinterested Shareholders (as hereinafter defined) entitled to vote
thereon.
(b) The provisions of this Section 1 of ARTICLE EIGHTH shall not
apply to (i) any offer to purchase made by the Corporation which is made
on the same terms and conditions to all holders of shares of stock of
the Corporation, (ii) any purchase by the Corporation of shares owned by
an Interested Person occurring after the end of two years following the
date of the last acquisition by such Interested Person of stock of the
Corporation, (iii) any transaction which may be deemed to be a purchase
by the Corporation of shares of its stock which is made in connection
with the terms or operation of any stock option or other employee
benefit plan now or hereafter maintained by the Corporation, or (iv) any
purchase by the Corporation of shares of its stock at prevailing market
prices pursuant to a stock repurchase program.
(2) Notwithstanding any other provisions of this Certificate of
Incorporation or the By-laws of the Corporation, no Transaction (as
hereinafter defined) between the Corporation and any Interested Person
shall be valid nor shall any such Transaction be consummated unless (i)
such Transaction is expressly approved by at least the affirmative vote
of Disinterested Directors (as hereinafter defined) which vote at the
time constitutes at least a majority vote of the entire Board of
Directors of the Corporation, or (ii) such Transaction is approved by
the affirmative vote of not less than two-thirds of the votes cast by
Disinterested Shareholders entitled to vote thereon, or (iii) if such
Transaction would result in payment of cash or other property to the
shareholders of the Corporation, such transaction provides for the
payment to each of the Disinterested Shareholders upon the consummation
thereof, in exchange for all the shares of the Corporation's capital
stock held by each of such Disinterested Shareholders, consideration
which, as to both amount and kind, is equal to or greater than the
highest per share price actually paid by or for the account of such
Interested Person for the same class of shares of capital stock held by
such Disinterested Shareholders during both the two-year period prior to
the time any such Interested Person became such and the two-year period
prior to the consummation of such Transaction.
(3) For purposes of this Article: (i) the term "Interested Person"
means any individual, corporation, partnership, trust, association or
other organization or entity (including any group formed for the purpose
of acquiring, voting or holding securities of the Corporation) which
beneficially or of record, owns or controls by agreement, voting trust
or otherwise, at least 3% of the voting power of any class of capital
stock of the Corporation and who (a) is offering shares to the
Corporation for repurchase or (b) is party to a proposed Transaction
with the Corporation, as the case may be, and such term also includes
any corporation, partnership, trust, association, or other organization
or entity in which one or more Interested Persons have the power,
through the ownership of voting securities, by contract, or otherwise,
to influence significantly any of the management, activities or policies
of such corporation, partnership, trust, association, or other
organization or entity; (ii) the term "Disinterested Director" means a
director (excluding any director who is an Interested Person) who was
either a member of the Board of Directors of the Corporation prior to
the time the Interested Person in the proposed Transaction became an
Interested Person or who subsequently became a director of the
Corporation and whose election, or nomination for election, was approved
by the vote of at least a majority of the Disinterested Directors of the
Corporation voting on such nomination or election; (iii) the term
"Disinterested Shareholders" means those holders of the Corporation's
capital stock entitled to vote on the Transaction, none of which is an
Interested Person; and (iv) the term "Transaction" includes a merger,
consolidation, liquidation, or other form of corporate reorganization
deemed to involve the purchase or transfer of the shares of the
Corporation.
(4) The provisions of this Article shall not be amended without the
affirmative vote of not less than two-thirds of the votes cast by
shareholders entitled to vote thereon; provided, however, that if, at
the time of such vote, there shall be one or more Interested Persons,
(i) in the case of amendment of Section 1 or 2 of this ARTICLE EIGHTH,
such affirmative vote shall include the affirmative vote in favor of
such amendment of not less than two-thirds of the votes cast by
Disinterested Shareholders entitled to vote thereon, or (ii) in the case
of Section 2 of this ARTICLE EIGHTH, such amendment shall have been
approved by the affirmative vote of Disinterested Directors, which vote
at the time constitutes at least a majority vote of the entire Board of
Directors of the Corporation.
(5) The provisions of this Article shall be in addition to any other
provisions of the New Jersey Business Corporation Law or this
Certificate of Incorporation or the By-laws of the Corporation, each as
amended from time to time, applicable to the authorization and
consummation by the Corporation of any transaction or amendment
contemplated by this ARTICLE EIGHTH.
NINTH: (1) Elimination of Certain Liability of Directors. A
director of the corporation shall not be personally liable to the
Corporation or its shareholders for damages for breach of any duty owed
to the Corporation or its shareholders, except for liability for any
breach of duty based upon an act or omission (a) in breach of such
person's duty of loyalty to the Corporation or its shareholders, (b) not
in good faith or involving a knowing violation of law or (c) resulting
in receipt by such person of an improper personal benefit.
(2) Elimination of Certain Liability of Officers. Unless provided
otherwise by law, an officer of the Corporation shall not be personally
liable to the Corporation or its shareholders for damages for breach of
any duty owed to the Corporation or its shareholders, except for
liability for any breach of duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the Corporation or its
shareholders, (b) not in good faith or involving a knowing violation of
law or (c) resulting in receipt by such person of an improper personal
benefit.
(3) Repeal or Modification of ARTICLE NINTH. Any repeal or
modification of the foregoing paragraphs by the shareholders of the
Corporation shall not adversely affect any right or protection of a
director or an officer of the Corporation existing at the time of such
repeal or modification.
Dated this first day of December, 1993.
THOMAS & BETTS CORPORATION
By
James D. Hay
Vice President-General Counsel
BY-LAWS
OF
THOMAS & BETTS CORPORATION
As Adopted by the Board of Directors on
February 6, 1991 and Last Amended on December 1, 1993
Amendments to By-Laws
Article Section Subject Date Amended
IX 1 Fiscal Year April 26, 1993
IV 1 Officers - Election, Term
of Office and Qualifications December 1, 1993
TABLE OF CONTENTS
Page
ARTICLE I. MEETINGS OF SHAREHOLDERS
Section 1 Annual Meeting . . . . . . . . . . . . . . . . 1
2 Special Meetings . . . . . . . . . . . . . . . 1
3 Place of Meetings. . . . . . . . . . . . . . . 1
4 Notice of Meetings . . . . . . . . . . . . . . 1
5 Quorum; Adjournment. . . . . . . . . . . . . . 1
6 Organization . . . . . . . . . . . . . . . . . 2
7 Voting . . . . . . . . . . . . . . . . . . . . 2
8 Shareholder Lists. . . . . . . . . . . . . . . 2
9 Notice of Business and Nominations . . . . . . 2
(A) Annual Meetings of Shareholders . . . . . . . 2
(B) Special Meetings of Shareholders. . . . . . . 4
(C) General . . . . . . . . . . . . . . . . . . . 4
10 Inspectors of Elections; Opening and
Closing the Polls . . . . . . . . . . . . . . . . 5
ARTICLE II. BOARD OF DIRECTORS
Section 1 General Powers . . . . . . . . . . . . . . . . 5
2 Number, Election and Term of Office. . . . . . 5
3 Meetings . . . . . . . . . . . . . . . . . . . 6
4 Place of Meeting . . . . . . . . . . . . . . . 6
5 Notice of Meetings . . . . . . . . . . . . . . 6
6 Quorum and Manner of Acting. . . . . . . . . . 6
7 Organization . . . . . . . . . . . . . . . . . 6
8 Resignations . . . . . . . . . . . . . . . . . 7
9 Removal of Directors . . . . . . . . . . . . . 7
10 Vacancies. . . . . . . . . . . . . . . . . . . 7
11 Compensation . . . . . . . . . . . . . . . . . 7
12 Increasing Number of Directors . . . . . . . . 7
ARTICLE III. EXECUTIVE AND OTHER COMMITTEES
Section 1 Executive Committee. General Powers and
Membership . . . . . . . . . . . . . . . . . . 7
2 Procedure. . . . . . . . . . . . . . . . . . . 8
3 Other Committees . . . . . . . . . . . . . . . 8
ARTICLE IV. OFFICERS
Section 1 Election, Term of Office and Qualifications. . 8
2 Removal. . . . . . . . . . . . . . . . . . . . 9
3 Resignations . . . . . . . . . . . . . . . . . 9
4 Vacancies. . . . . . . . . . . . . . . . . . . 9
5 Chairman of the Board of Directors . . . . . . 9
6 President. . . . . . . . . . . . . . . . . . . 9
7 Chief Executive Officer. . . . . . . . . . . . 9
8 Secretary. . . . . . . . . . . . . . . . . . . 10
9 Treasurer. . . . . . . . . . . . . . . . . . . 10
ARTICLE V. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1 Right to Indemnification . . . . . . . . . . . 10
2 Right of Claimant to Bring Suit. . . . . . . . 11
3 Non-Exclusivity of Rights; Continuation of
Rights. . . . . . . . . . . . . . . . . . . . . 12
4 Insurance. . . . . . . . . . . . . . . . . . . 12
ARTICLE VI. EXECUTION OF INSTRUMENTS, ETC.
Section 1 Contracts, Etc., How Executed. . . . . . . . . 12
2 Deposits . . . . . . . . . . . . . . . . . . . 12
3 Checks, Drafts, Etc. . . . . . . . . . . . . . 13
ARTICLE VII. SHARES AND THEIR TRANSFER; SHAREHOLDER RECORDS
Section 1 Certificates of Stock. . . . . . . . . . . . . 13
2 Transfer of Shares . . . . . . . . . . . . . . 13
3 Closing of Transfer Books; Record Date . . . . 13
4 Lost and Destroyed Certificates. . . . . . . . 14
5 Regulations. . . . . . . . . . . . . . . . . . 14
6 Examination of Shareholder List. . . . . . . . 14
ARTICLE VIII. NOTICE
Section 1 Waiver of Notice . . . . . . . . . . . . . . . 15
ARTICLE IX. MISCELLANEOUS
Section 1 Fiscal Year. . . . . . . . . . . . . . . . . . 15
2 Seal . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE X. AMENDMENTS
Section 1 . . . . . . . . . . . . . . . . . . . . . . 15
BY-LAWS
ARTICLE I.
Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of
shareholders for the election of directors and for the transaction of
such other business as may properly come before said meeting shall be
held on a day during the period from April 15 to May 15, or on any
other day, and at a time determined by the Board of Directors.
Section 2. Special Meetings. Except as otherwise required by
law, a special meeting of shareholders may be called at any time by
the Chairman of the Board of Directors or by the President or by the
Board of Directors pursuant to a resolution adopted by a majority of
the total number of directors which the Corporation would have at the
time of the adoption of such resolution if there were no vacancies
(the "Whole Board") and by no other person or persons.
Section 3. Place of Meetings. All meetings of shareholders
shall be held at the principal office of the Corporation in the State
of New Jersey, or at other places in or outside of such State as may
be designated by the Board of Directors and specified in the notice of
meeting.
Section 4. Notice of Meetings. Notice of each meeting
stating the purpose or purposes for which the meeting is called and
the time when and the place where it is to be held, shall be served
upon each shareholder of record entitled to vote at such meeting,
either personally or by mailing such notice to him or her, not less
than 10 days nor more than 60 days before the time fixed for such
meeting. If mailed, it shall be directed to a shareholder at his or
her address as it appears on the shareholder list. Any previously
scheduled meeting of the shareholders may be postponed by resolution
of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of shareholders.
Section 5. Quorum; Adjournment. Except as otherwise provided
by law or by the Certificate of Incorporation, at each meeting of
shareholders, the holders of record of a majority of the total number
of the shares of capital stock entitled to vote must be present in
person or by proxy to constitute a quorum for the transaction of
business. Whether or not there is a quorum at any meeting, the
shareholders present and entitled to cast a majority of the votes
thereat or the Chairman of the meeting may adjourn and readjourn the
meeting from time to time. At any such adjourned meeting at which a
quorum is present, any business may be transacted which might have
been transacted at the meeting as originally called.
Section 6. Organization. At every meeting of the
shareholders, the Chairman of the Board of Directors, or, in his or
her absence, the President, or, in his or her absence, a Vice
President designated by the President or, in the absence of such
designation, a chairman designated by the Board of Directors, shall
act as Chairman. The Secretary or the Assistant Secretary or such
officer of the Corporation designated by the chairman shall act as
secretary of each meeting of the shareholders.
Section 7. Voting. Each shareholder of record present shall
be entitled at each meeting of shareholders to such number of votes as
shall be prescribed by the Certificate of Incorporation for the shares
of capital stock recorded in his or her name in the shareholder
records of the Corporation
(a) at the record date fixed as provided in Section 3 of
Article VII, or
(b) if no such record date shall have been fixed, then
at the close of business on the eleventh day before
the day of such meeting.
The voting at any meeting of shareholders need not be by
ballot, unless specifically required by law or requested by a
qualified voter present in person or by proxy.
Shares of its own capital stock belonging to the Corporation
shall not be voted upon directly or indirectly.
Section 8. Shareholder Lists. The Transfer Agent or the
Secretary, or such other officer as may be designated by the Board of
Directors, shall make a full, true and complete list, in alphabetical
order, of all shareholders entitled to vote at each annual or special
meeting of shareholders, and the address and the number of shares of
capital stock held by each. The Board of Directors shall produce such
list at the time and place of the meeting, to remain there during the
meeting. Such list shall be the only evidence as to who are the
shareholders entitled to vote at the meeting.
Section 9. Notice of Business and Nominations.
(A) Annual Meetings of Shareholders. (1) Nominations of
persons for election to the Board of Directors of the Corporation and
any proposal of business to be considered by the shareholders may be
made at an annual meeting of shareholders only (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the
Board of Directors or (c) by any shareholder of the Corporation who
was a shareholder of record at the time of giving of notice provided
for in this Section, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Section.
(2) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause
(c) of paragraph (A) (1) of this Section, the shareholder must have
given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice shall be delivered
to the Secretary at the principal executive offices of the Corporation
not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is advanced by
more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the shareholder to be timely must be so
delivered not earlier than the 90th day prior to such annual meeting
and not later than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made.
Such shareholder's notice shall set forth (a) as to each
person whom the shareholder proposes to nominate for election or
reelection as a director all information relating to such person that
is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director
if elected); (b) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in
such business of such shareholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (c) as to the shareholder
giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such
shareholder, as such name and address appear in the Corporation's
shareholder records, and of such beneficial owner and (ii) the class
and number of shares of the Corporation which are owned beneficially
and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A) (2) of this Section to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the
increased Board of Directors made by the Corporation at least 70 days
prior to the first anniversary of the preceding year's annual meeting,
a shareholder's notice required by this Section shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not
later than the close of business on the 10th day following the day on
which such public announcement is first made by the Corporation.
(B) Special Meetings of Shareholders. Only such business
shall be conducted at a special meeting of shareholders as shall have
been brought before the meeting pursuant to the notice of meeting.
Nominations of persons for election to the Board of Directors may be
made at a special meeting of shareholders at which directors are to be
elected pursuant to the notice of meeting (a) by or at the direction
of the Board of Directors or (b) by any shareholder of the Corporation
who is a shareholder of record at the time of giving of notice
provided for in this Section, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this
Section. Nominations by shareholders of persons for election to the
Board of Directors may be made at such a special meeting of
shareholders if the shareholder's notice required by paragraph (A) (2)
of this Section shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the 90th day
prior to such special meeting and not later than the close of business
on the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section shall be
eligible to serve as directors and only such business shall be
conducted at a meeting of shareholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
Section. Except as otherwise provided by law, the Chairman of the
meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting
was made in accordance with the procedures set forth in this Section
and, if any proposed nomination or business is not in compliance with
this Section, to declare that such defective proposal or nomination
shall be disregarded.
(2) For purposes of this Section, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15 (d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section.
Nothing in this Section shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 10. Inspectors of Elections; Opening and Closing the
Polls. The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who
serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives of the
Corporation, to act at the meeting and make a written report thereof.
One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate
has been appointed to act or is able to act at a meeting of
shareholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging
his or her duties, shall take and sign an oath or affirmation
faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspectors shall
have the duties prescribed by law.
The chairman of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the polls
for each matter upon which the shareholders will vote at a meeting.
ARTICLE II.
Board of Directors
Section 1. General Powers. The business of the Corporation,
except as otherwise expressly provided by law or by the Certificate of
Incorporation, shall be managed by the Board of Directors.
Section 2. Number, Election and Term of Office. A Board of
Directors of not less than seven nor more than fifteen members as may
be determined by the Board of Directors at a meeting held prior to the
annual meeting shall be elected at the annual meeting of shareholders.
The number of directors to be elected shall be stated in the notice of
the meeting. Subject to such limitation, the persons receiving the
greatest number of votes shall be the directors and they shall hold
office until the next annual meeting and until their successors shall
have been elected and qualified, or until death, resignation,
disqualification or removal. Each director shall within one month's
time of his or her election and so long as he or she shall continue to
be a director, be a bona fide holder of at least one share of the
Common Stock of the Corporation.
Section 3. Meetings. The Board of Directors shall hold
regular meetings on such days and at such hours as may be fixed by the
Board of Directors from time to time, except that a regular meeting
shall be held as soon as practicable after the adjournment of the
annual meeting of the shareholders at which such Board of Directors
shall have been elected, for the purpose of organization, the election
of officers and the transaction of such other business as may properly
come before the meeting.
Special meeting shall be held whenever called by the Chairman
of the Board of Directors or by the President or any two directors.
Section 4. Place of Meeting. Meetings of the Board of
Directors shall be held at the principal office of the Corporation or
at such other place as the Board of Directors may from time to time
determine.
Section 5. Notice of Meetings. Notice need not be given for
regular Board of Directors meetings, the dates, times, and places of
which have been fixed by the Board of Directors in advance for the
calendar year. Notice of a special meeting or of a change in the
date, time, or place of holding a regular Board of Directors meeting
shall be communicated (i) in writing to each director at the
director's residence or usual place of business, or at such other
address as the director may have designated in a written request filed
with the Secretary, at least five days before the day on which the
meeting is to be held, or (ii) orally, in person or by telephone, at
least 24 hours before the time at which the meeting is to be held.
Notice of any meeting of the Board of Directors may be waived in
writing by any director either before or after the time of such
meeting; and at any meeting at which every director shall be present,
even though without any notice, any business may be transacted.
Section 6. Quorum and Manner of Acting. A majority of the
total number of directors shall be present in person or by telephone
at any meeting of the Board of Directors in order to constitute a
quorum for the transaction of business thereat. Whether or not there
is a quorum at any meeting, a majority of the directors who are
present may adjourn and readjourn any meeting from time to time to a
day and hour certain.
Section 7. Organization. At every meeting of the Board of
Directors, the Chairman of the Board of Directors, or, in his or her
absence, the President, or, in his or her absence, a chairman chosen
by a majority of the directors present, shall preside. The Secretary
of the Corporation shall act as secretary of the meetings of the Board
of Directors. At any meeting of the Board of Directors, in the
absence of the Secretary, the chairman of such meeting shall appoint a
person to act as secretary of the meeting.
Section 8. Resignations. Any director may resign at any time
by giving written notice to the Chairman of the Board of Directors or
to the President or to the Secretary of the Corporation or to the
Board of Directors. Such resignation shall take effect at the time
specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
Section 9. Removal of Directors. Any director may be
removed, either with or without cause, at any time, by the affirmative
vote of the holder or holders of record of shares of capital stock of
the Corporation entitled to cast at least 50% of the total number of
votes entitled to be cast at a special meeting of shareholders called
for that purpose.
Section 10. Vacancies. Except as otherwise provided by law
or by the Certificate of Incorporation, any vacancy in the Board of
Directors arising at any time and for any cause, may be filled by the
vote of a majority of the directors remaining in office.
Section 11. Compensation. The Board of Directors, by the
affirmative vote of a majority of directors in office and irrespective
of any personal interest of any of them, shall have the authority to
establish reasonable compensation, including reimbursement of
expenses, of directors for services to the Corporation as directors,
officers or otherwise. Nothing herein contained shall be construed to
preclude any director from serving in any other capacity or receiving
compensation for such service.
Section 12. Increasing Number of Directors. The Board of
Directors shall have power at any time when the shareholders as such
are not assembled in a meeting, regular or special, to increase the
number of directors elected by the shareholders and forthwith to fill
such position or positions by the election of one or more directors,
to hold office until the next annual meeting of shareholders, and
until his, her or their successor or successors are elected and
qualified.
ARTICLE III.
Executive and Other Committees
Section 1. Executive Committee. General Powers and
Membership. From time to time, the Board of Directors may, by a
majority of the Whole Board, appoint from its members an Executive
Committee consisting of at least three members of the Board of
Directors, a majority of whom shall not be employees of the
Corporation, and the Committee shall meet at the call of the Chairman,
or, in the absence of the Chairman, at the call of any member of such
committee, to act for the Board of Directors, to the extent permitted
by law, in any situation in which action of the Board of Directors is
required and it is not practicable to have a meeting of the Board of
Directors. The Executive Committee shall have and may exercise all
the powers of the Board of Directors except the power to appoint or
remove a member of the Executive Committee or other committee, the
power to fill vacancies in the Board of Directors, the power to remove
an officer appointed by the Board of Directors and the power to amend
or repeal these By-laws during the intervals between the meetings of
the Board of Directors. All actions of the Executive Committee shall
be reported to the Board of Directors at its meeting next succeeding
such action and, insofar as the rights of third parties shall not be
affected thereby, shall be subject to revision and alteration by the
Board of Directors.
All members of the Board of Directors not appointed to the
Executive Committee may be authorized by appropriate action of the
Board of Directors to attend the meetings of the Executive Committee
as observers but without any right to vote at such meetings and shall
be entitled to receive such fees as shall be fixed by the Board of
Directors.
Section 2. Procedure. The Executive 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. The presence in
person or by telephone of a majority shall be necessary to constitute
a quorum and in every case the affirmative vote of a majority of all
members of the committee shall be necessary.
Section 3. Other Committees. From time to time, the Board of
Directors, by resolution adopted by a majority vote of the Whole
Board, may appoint any other committee or committees for any purpose
or purposes with such powers as shall be specified in the resolution
of appointment and permitted by law.
ARTICLE IV.
Officers
Section 1. Election, Term of Office and Qualifications. The
Board of Directors shall elect a President, a Secretary and a
Treasurer and it may elect a Chairman of the Board of Directors, one
or more Vice Presidents and such other officers as it may deem
necessary from time to time, with such authority and such duties as
may be prescribed by the Board of Directors from time to time.
Subject to the provisions of Section 2 and Section 3 of this Article
each elected officer shall hold office until the next annual election
and until his or her successor is chosen and qualified. Divisional
officers, who shall not be officers of the Corporation, may be
appointed by the Chief Executive Officer to perform such duties as may
be assigned from time to time by the Chief Executive Officer.
The same person, whether an officer of the Corporation or a
divisional officer, may hold more than one office, so far as permitted
by law, and exercise and perform the powers and duties thereof.
Section 2. Removal. Any officer may be removed, either with
or without cause, at any time, by resolution adopted by a majority of
the Whole Board, at any meeting of the Board of Directors, or by any
committee or officer upon whom such power of removal shall have been
conferred by resolution adopted by a majority of the Whole Board.
Section 3. Resignations. Any officer may resign at any time
by giving written notice to the Chairman of the Board of Directors or
to the President or to the Secretary or to the Board of Directors.
Any such resignation shall take effect at the time specified therein
and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 4. Vacancies. A vacancy in any office arising from
any cause may be filled for the unexpired portion of the term in the
manner prescribed in these By-laws for election to such elective
office.
Section 5. Chairman of the Board of Directors. The Chairman
of the Board of Directors shall preside at all shareholders' meetings
and meetings of the Board of Directors. He or she shall perform such
additional duties and possess such additional powers as from time to
time shall be prescribed for him or her by the Board of Directors.
Section 6. President. The President shall perform such
duties and possess such powers as from time to time shall be
prescribed for him or her by the Board of Directors. In the absence
of the Chairman of the Board of Directors he or she shall perform the
duties and possess the powers of the Chairman of the Board of
Directors.
Section 7. Chief Executive Officer. The Board of Directors
may from time to time designate either the Chairman of the Board of
Directors or the President as the Chief Executive Officer of the
Corporation to be in general charge of the business of the Corporation
in all its departments. This shall require the affirmative vote of a
majority of the Whole Board given at any meeting.
Section 8. Secretary. The Secretary shall:
(a) keep the minutes of all meetings of the shareholders
and of the Board of Directors, and of any committee of the Board of
Directors to which a secretary shall not have been appointed, in books
to be kept for the purpose;
(b) see that all notices are duly given in accordance
with these By-laws or as required by law;
(c) be custodian of the records (other than financial)
and have charge of the seal of the Corporation and see that it is used
upon all papers or documents whose execution on behalf of the
Corporation under its seal is required by law or duly authorized in
accordance with these By-laws; and
(d) in general, perform all duties incident to the
office of the Secretary and such other duties as from time to time may
be assigned by the Board of Directors or by the Chairman of the Board
of Directors or by the President or by any committee thereunto
authorized.
Section 9. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for,
all funds and securities of the Corporation; and
(b) in general, perform all the duties incident to the
office of Treasurer, and such other duties as from time to time may be
assigned by the Chairman of the Board of Directors or by the President
or by the Board of Directors or by any committee thereunto authorized.
ARTICLE V.
Indemnification of Officers and Directors
Section 1. Right to Indemnification. Each person who was or
is made a party or is threatened to be made a party to or is involved
in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is
the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as
a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized or permitted by the New Jersey Business
Corporation Act, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to
such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the
Board of Directors. The right to indemnification conferred in this
Section shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, if the New Jersey Business
Corporation Act requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer
(and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the
final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under
Section 1 of this Article is not paid in full by the Corporation
within ninety days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim,
and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the
New Jersey Business Corporation Act for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the New Jersey Business
Corporation Act, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights; Continuation of Rights.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred
in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, By-law, agreement, vote of
shareholders or disinterested directors or otherwise. All rights to
indemnification under this Article shall be deemed to be a contract
between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while
this Article is in effect. Any repeal or modification of this Article
or any repeal or modification of relevant provisions of the New Jersey
Business Corporation Act or any other applicable laws shall not in any
way diminish any rights to indemnification of such director or officer
or the obligations of the Corporation arising hereunder.
Section 4. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director or
officer of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under
the New Jersey Business Corporation Act.
ARTICLE VI.
Execution of Instruments, Etc.
Section 1. Contracts, Etc., How Executed. All contracts and
other corporate instruments shall be executed in the name of and in
behalf of the Corporation and delivered by the Chairman of the Board
of Directors, the President, the President of a division of the
Corporation, any Vice President or the Treasurer and attested by the
Secretary, Assistant Secretary or the Vice President-General Counsel
unless the Board of Directors shall specifically direct otherwise.
Section 2. Deposits. Funds of the Corporation may be
deposited from time to time to the credit of the Corporation with such
depositaries as may be selected by the Board of Directors or by any
committee or officer or officers, agent or agents of the Corporation
to whom such power may be delegated from time to time by the Board of
Directors.
Section 3. Checks, Drafts, Etc. All checks, drafts or other
orders for the payment of money, notes, acceptances, or other
evidences of indebtedness issued in the name of the Corporation shall
be signed by the Vice President-Finance and/or the Treasurer or such
agent or agents of the Corporation as shall be designated from time to
time by the Vice President-Finance and/or Treasurer. Unless otherwise
provided by resolution of the Board of Directors, endorsements for
deposit to the credit of the Corporation in any of its duly authorized
depositaries may be made without counter signature, by the President
or any Vice President, or the Treasurer, or by any other officer or
agent of the Corporation to whom such power shall have been delegated
by the Vice President-Finance and/or Treasurer and may be made by
hand-stamped impression in the name of the Corporation.
ARTICLE VII.
Shares and Their Transfer; Shareholder Records
Section 1. Certificates of Stock. The stock of the
Corporation shall be represented by certificates signed by the
Chairman of the Board of Directors or by the President and the
Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and sealed with the seal of the Corporation. Such seal may
be a facsimile, engraved or printed. Where any such certificate is
signed by a Transfer Agent or Assistant Transfer Agent or by a
Transfer Clerk and by a Registrar, the signatures of the Chairman of
the Board of Directors, President, Secretary, Assistant Secretary,
Treasurer or Assistant Treasurer and of the Transfer Agent, Assistant
Transfer Agent, Transfer Clerk and Registrar upon such certificate may
be facsimiles, engraved or printed.
Section 2. Transfer of Shares. Transfers of shares of the
capital stock of the Corporation shall be recorded in the shareholder
records of the Corporation when duly assigned by the holder of record
of such shares or by his or her attorney thereunto duly authorized,
and on surrender of the certificate or certificates, for such shares
or pursuant to the abandoned property laws of any state of the United
States if the shareholder's share interest shall be properly within
the jurisdiction of the state and has been deemed abandoned and
subject to custodial retention under the laws of such state.
Section 3. Closing of Transfer Books; Record Date. The Board
of Directors may close the stock transfer books for a period not
exceeding 60 days preceding the date of any meeting of shareholders or
the date for payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect; provided, however, in lieu of
closing the stock transfer books, as aforesaid the Board of Directors
may at its discretion fix in advance a date, not exceeding 60 days
preceding the date of any meeting of shareholders, or the date for the
payment of any dividend, or the date for the allotment of rights, or
the date when any change or conversion or exchange of capital stock
shall go into effect, as a record date for the determination of the
shareholders entitled to notice of, and to vote at, any such meeting,
or entitled to receive payment of any such dividend, or any such
allotment of rights, or to exercise the rights in respect to any such
change, conversion or exchange of capital stock, and all persons who
are holders of record at such time of the class of stock involved, and
no others, shall be entitled to such notice of, and to vote at, such
meeting, or to receive payment of such dividend, or allotment of
rights or exercise of such rights, as the case may be.
Section 4. Lost and Destroyed Certificates. The holder of
record of any certificate of stock who shall claim that such
certificate is lost or destroyed may make an affidavit or affirmation
of that fact and advertise the same in such manner as the Board of
Directors, the Transfer Agent or the Registrar may require and give a
bond, if required to do so, in the form and in such sum as the Board
of Directors, the Transfer Agent or the Registrar may direct,
sufficient to indemnify the Corporation, the Transfer Agent and the
Registrar against any claim that may be made on account of such
certificate, whereupon one or more new certificates may be issued of
the same tenor and for the same aggregate number of shares as the one
alleged to be lost or destroyed.
Section 5. Regulations. The Board of Directors may make such
rules and regulations as it may deem expedient concerning the
issuance, transfer and registration of certificates of stock; it may
appoint one or more transfer agents or registrars of transfers or
both, and may require all certificates of stock to bear the signature
of either or both.
Section 6. Examination of Shareholder List. Subject to the
limitations provided by law, upon the written request of any
shareholder, a list containing the names and addresses of all
shareholders, and the number of shares of capital stock held by each,
shall be available during regular business hours at the registered
office of the Corporation or at the office of its principal transfer
agent for inspection by any shareholder of record of the Corporation.
ARTICLE VIII.
Notice
Section 1. Waiver of Notice. No notice of the time, place or
purpose of any meeting of shareholders or directors, or of any
committee, or any publication thereof, whether prescribed by law, by
the Certificate of Incorporation or by these By-laws, need be given to
any person who attends such meeting, or who, in writing, executed
either before or after the holding thereof, waives such notice, and
such attendance or waiver shall be deemed equivalent to notice.
ARTICLE IX.
Miscellaneous
Section 1. Fiscal Year. The fiscal year of the Corporation
shall end on the Sunday closest to the end of the calendar year.
Section 2. Seal. The seal of the Corporation shall be a
device, circular in form, containing the name of the Corporation, the
figures "1917" and the words, "Corporate Seal" and "New Jersey." The
corporate seal may be used in 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 the corporate seal.
The Secretary, Assistant Secretary, Vice President-General Counsel or
any other person specifically authorized by the Board of Directors,
may use the seal of the Corporation in connection with corporate
contracts or instruments.
ARTICLE X.
Amendments
Section 1. These By-laws may be amended or repealed by the
shareholders at any annual meeting, or at any special meeting if
notice of the proposed amendment or new By-laws is included in the
notice of such meeting. These By-laws may be amended or repealed by
the affirmative vote of a majority of the Whole Board given at any
meeting, the notice or waiver of notice whereof mentions such
amendment or repeal as one of the purposes of such meeting.