AMENDED AND RESTATED BY-LAWS
OF
ELEXSYS INTERNATIONAL, INC.
(A Delaware Corporation)
ARTICLE I
Meetings of Stockholders
SECTION 1. Place of Meetings. Meetings of the stockholders of
Elexsys International, Inc. (herein called the "Corporation") for the election
of directors or for the transaction of only such other business as may properly
be brought before the meeting in accordance with these By-laws shall be held at
such time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual Meetings. The Annual Meetings of
Stockholders shall be held on such date and at such time as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting, for the purpose of electing directors and for the transaction of only
such other business as may properly be brought before the meeting in accordance
with these By-laws.
To be properly brought before the Annual Meeting, business
must be either (a) specified in the notice of Annual Meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the Annual Meeting by or at the direction of the Board
of Directors, or (c) otherwise properly brought before the Annual Meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before an Annual Meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
to and received at the principal executive offices of the Corporation, not less
than fifty days or more than seventy-five days prior to the Annual Meeting;
provided, however, that in the event that less than sixty days' notice or prior
public disclosure of the date of the Annual Meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later that the close of business on the tenth day following the day on which
such notice of the date of the Annual Meeting was mailed or such public
disclosure was made, whichever first occurs. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the Annual Meeting (i) a brief description of the business desired to be
brought before the Annual Meeting and the reasons for conducting such business
at the Annual Meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class, series and number of shares of the
Corporation which are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no
business shall be conducted at the Annual Meeting except in accordance with the
procedures set forth in this Section 2; provided, however, that nothing in this
Section 2 shall be deemed to preclude discussions by any stockholder of any
business properly brought before the Annual Meeting.
The Chairman of an Annual Meeting shall, if the facts warrant,
determine and declare to the Annual Meeting that business was not properly
brought before the Annual Meeting in accordance with the provisions of this
Section 2, and if he should so determine, he shall so declare to the Annual
Meeting any such business not properly brought before the Annual Meeting shall
not be transacted.
Written notice of the Annual Meeting stating the place, date
and hour of the Annual Meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting.
SECTION 3. Special Meetings. Unless otherwise prescribed by
law or by the Certificate of Incorporation of the Corporation, as the same may
from time to time be amended (the "Certificate of Incorporation"), Special
Meetings of Stockholders, for any purpose or purposes, may be called by the
Board of Directors, the Chairman of the Board of Directors or the President.
Special Meetings of the Stockholders may also be called by one or more holders
of Common Stock that hold in the aggregate 10% or more of the outstanding shares
of Common Stock entitled to vote, by a writing, (i) signed by such holder or
holders, (ii) specifying the purpose or purposes of the meeting and (iii)
submitted to the Secretary of the Corporation. Special Meetings of Stockholders
of the Corporation may not be called by any other person or persons. Written
notice of a Special Meeting stating the place, date and hour of the meeting and
the purpose or purposes for which the meeting is called shall be given not less
than ten or more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
SECTION 4. Quorum. Except as otherwise provided by law or by
the Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder entitled to vote at
the meeting.
SECTION 5. Order of Business. The order of business at each
meeting of the stockholders shall be determined by the chairman of such meeting,
but such order of business may be changed by the vote of a majority in voting
interest of those present in person or by proxy at such meeting and entitled to
vote thereat.
SECTION 6. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these By-laws, any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat. Unless otherwise
provided in the Certificate of Incorporation, each stockholder represented at a
meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may
be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. No vote at
any meeting of stockholders need be by written ballot unless the Board of
Directors, in its discretion, or the officer of the Corporation presiding at the
meeting, in his discretion, specifically directs the use of a written ballot.
SECTION 7. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its stock
ledger, either directly or through another officer of the Corporation designated
by him or through a transfer agent or transfer clerk appointed by the Board of
Directors, to prepare and make, at least ten days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
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 or the principal
executive offices of the Corporation. The list shall also be produced and kept
at the time and place of said meeting during the whole time thereof, and may be
inspected by any stockholder who shall be present thereat. The stock ledger
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, such list or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
SECTION 8. Inspectors of Election. Before any meeting of
stockholders, the Board of Directors may appoint any person or persons other
than nominees for office to act as inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the officer of the
Corporation presiding at a meeting of stockholders may, and on the request of
any stockholder or stockholder's proxy shall, appoint inspectors of election at
the meeting. The number of inspectors shall be either one or three. If
inspectors are appointed at a meeting on the request of one or more stockholders
or proxies, the holders of a majority of the stock represented and entitled to
vote thereat shall determine whether one or three inspectors are to be
appointed. If any person appointed as inspector fails to appear or fails or
refuses to act, the officer of the Corporation presiding at a meeting may, and
upon the request of any stockholder or a stockholder's proxy shall, appoint a
person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares of capital
stock outstanding and the voting power of each, the stock represented
at the meeting, the existence of a quorum, and the authenticity,
validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any
way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine and report to the Corporation the results of
the voting; and
(f) Do any other acts that may be proper to conduct the
election or vote with fairness to all stockholders.
SECTION 9. Judges. If at any meeting of the stockholders a
vote by ballot shall be taken on any question, the chairman of such meeting may
appoint two Judges to act with respect to such vote. These Judges need not be
stockholders of the Corporation, and any officer of the Corporation may be a
Judge on any question other than a vote for or against his election to any
position with the Corporation or on any other question in which he may be
directly interested.
SECTION 10. Action by Stockholders Without Meeting. To the
extent provided by Paragraph F of Article V of the Certificate of Incorporation,
and subject to any rights granted in a Preferred Stock Designation (as defined
in the Certificate of Incorporation) to any series of Preferred Stock, any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at an annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing of such
stockholders.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The property, business and
affairs of the property, Corporation shall be managed by the Board of Directors.
SECTION 2. Number of Directors, Term of Office and Vacancies.
The property, business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than four nor
more than seven directors. Except as otherwise provided in the Certificate of
Incorporation, each director shall serve for a term ending at the annual meeting
following the annual meeting at which such director is elected; provided,
however, that each director shall hold office after the annual meeting at which
his term is scheduled to end until his successor shall be elected and shall
qualify, subject to prior death, resignation, disqualification, or removal from
office. Any director elected to fill a vacancy not resulting from an increase in
the number of directors shall have the same term as the remaining term of his
predecessor. In no case may a decrease in the number of directors shorten the
term of any incumbent director. Any newly created directorship resulting from an
increase in the number of directors may be filled by a majority of the Board of
Directors then in office, provided that a quorum is present, and any other
vacancy on the Board of Directors may be filled by a majority of the directors
then in office, even if less than a quorum, or by a sole remaining director.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of the Preferred Stock Designation applicable thereto, and such directors
so elected shall be in addition to the number of directors provided by the
Certificate of Incorporation.
SECTION 3. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors at Annual Meetings of stockholders. Nominations of persons
for election to the Board of Directors at the Annual Meeting of stockholders may
be made at such meeting by or at the direction of the Board of Directors, by any
nominating committee or person appointed by the Board of Directors, or by any
stockholder of the Corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures herein set forth. Such
nominations, other than those made by or at the direction of the Board of
Directors, must be made pursuant to timely notice in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed to and received at the principal executive offices of the Corporation not
less than 50 days nor more than 75 days prior to the meeting; provided, however,
that in the event that less than 60 days' notice or prior public disclosure of
the date of the meeting is given or made to the stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made, whichever first
occurs.
SECTION 4. Organization. At each meeting of the Board of
Directors, the Chairman of the Board, if any, or in his absence, the President,
or in his absence, a director chosen by majority of the directors present, shall
act as chairman of the meeting. The Secretary, or in his absence any person
appointed by the chairman of the meeting, shall act as secretary of the meeting.
SECTION 5. Resignations. Any director may resign at any time
by giving written notice of his resignation to the President, the Secretary or
the Board of Directors. Any such resignation shall take effect at the time
specified therein, or, if the time when it shall become effective shall not be
specified therein, then it shall take effect immediately upon its receipt by
such President or Secretary; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 6. Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be determined by
the Board of Directors. Special meetings of the Board of Directors may be called
by the Chairman, if there be one, the Chief Executive Officer, the President, or
any two directors. Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by mail not less than forty-eight
hours before the date of the meeting or by telephone or telegram on twenty-four
hours notice. Such notice shall be addressed to such director at his residence
or usual place of business, unless the Corporation has been requested to send
notices for him to another address, in which event such notice shall be
addressed according to such request. Notice of a meeting need not be given to
any director who signs a waiver of notice, whether before or after the meeting,
or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director.
SECTION 7. Quorum and Manner of Acting. Except as specified in
Section 2 of this Article II, a majority of the directors then in office shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at any such meeting at which a quorum is present shall be
the act of the Board of Directors. In the absence of a quorum at any such
meeting, a majority of the directors present thereat may adjourn such meeting
from time to time until a quorum shall be present thereat. Notice of any
adjourned meeting need not be given. The directors shall act only as a board and
the individual directors shall have no power as such.
SECTION 8. Meetings by Means of Conference Telephone. Members
of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 8 shall
constitute presence in person at such meeting.
SECTION 9. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting, if all the members of the Board of
Directors or such committee, as the case may be, consent thereto in writing and
the writing or writings are filed with the minutes of proceedings of the Board
of Directors or such committee, as the case may be.
SECTION 10. Removal of Directors. Any director of the
Corporation elected or appointed by the stockholders or by the Board of
Directors may be removed from office, with or without cause, by the vote of a
majority in voting interest of the stockholders of the Corporation entitled to
vote at an election of directors. The vacancy in the Board of Directors caused
by any such removal may be filled by the stockholders at such meeting or
otherwise as provided in Section 2 of this Article II.
SECTION 11. Compensation. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by resolution of the
Board. No such payment shall preclude any director from serving the Corporation
in any other capacity and receiving compensation therefor.
SECTION 12. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and any such
committee which is denominated an "Executive Committee" shall have the power and
authority to declare a dividend, to authorize the issuance of stock and to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of the State of Delaware. Each committee shall keep regular
minutes and report to the Board of Directors when required.
SECTION 13. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Common interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE III
Officers
SECTION 1. Principal Officers. The officers of the Corporation
shall be a President, one or more Vice Presidents as the Board of Directors
shall determine (any one or more of whom the Board of Directors may designate
Executive Vice President or Senior Vice President or similar title), a
Secretary, a Treasurer and such other officers, including a Chairman of the
Board and a Chief Executive Officer, as the Board of Directors may deem
desirable. One person may hold the offices and perform the duties of any two or
more of said offices.
SECTION 2. Election; Term of Office; Qualifications; Duties.
The officers shall be chosen by the Board of Directors. Each officer shall hold
office until his successor is chosen and shall have qualified or until his
death, or until he shall have resigned or shall have been removed in the manner
hereinafter provided. Officers need not be stockholders or directors of the
Corporation. The officers shall each have such powers and duties as are set
forth in these By-laws and as generally pertain to their respective offices, and
as from time to time may be conferred upon them by the Board of Directors. The
Chairman of the Board, if any, shall be a member of the Board of Directors and
the Executive Committee, if any, and shall preside at all meetings of
stockholders, the Board of Directors and the Executive Committee, if any, and
shall have such other powers and perform such other duties as from time to time
may be assigned to him by the Board of Directors. In the absence or disability
of the Chairman of the Board, or if there be no Chairman, the Chief Executive
Officer, or if there be no Chief Executive Officer, the President shall preside
at all meetings of stockholders and, if a member, of the Board of Directors. The
President shall have the powers and authority which ordinarily are inherent in
such office in addition to those which the Board of Directors may from time to
time prescribe. Each Vice President shall have such powers and perform such
duties as from time to time may be assigned to him by the Board of Directors or
the Chairman of the Board, if any, or the President. The Secretary shall keep or
cause to be kept in the corporate minute books the minutes of the meetings of
the stockholders, the Board of Directors, and all committees created by the
Board of Directors and shall have such other powers and authority which
ordinarily are inherent in such office in addition to those which the Board of
Directors may from time to time prescribe. The Treasurer shall have charge and
custody of, and be responsible for, all funds and securities of the Corporation
and shall have such other powers and authority which ordinarily are inherent in
such office in addition to those which the Board of Directors from time to time
may prescribe.
SECTION 3. Removal. Any officer of the Corporation may be
removed, either with or without cause, at any time, by resolution adopted by a
majority of the whole Board of Directors or by any committee or officer upon
whom such power of removal may be conferred by the Board of Directors.
SECTION 4. Resignations. Any officer of the Corporation may
resign at any time by giving written notice of his resignation to the Board of
Directors or the President or the Secretary. Any such resignation shall take
effect at the time specified therein, or, if the time when it shall become
effective shall not be specified therein, then it shall take effect immediately
upon its receipt by the Board of Directors or the President or Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 5. Compensation. The compensation of the officers of
the Corporation shall be fixed from time to time by the Board of Directors or by
one or more committees appointed by the Board of Directors with power to fix
such compensation, and none of such officers shall be prevented from receiving
compensation by reason of the fact that he is also a member of the Board of
Directors or of any such committee; but none of such officers who shall also be
a member of the Board of Directors or of any such committee shall have any vote
in the determination of the amount of compensation that shall be paid to him.
SECTION 6. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the stockholders and of the Board of Directors,
and shall perform such other duties as shall be assigned to him by the Board of
Directors.
SECTION 7. Chief Executive Officer. The Chief Executive
Officer shall have general and active control over the affairs and business of
the Corporation and supervision over its several officers subject always to the
control of the Board of Directors and shall perform such other duties as shall
be assigned to him by the Board of Directors. In the absence or during a vacancy
in the office of the Chairman of the Board, the Chief Executive Officer shall
preside at all meetings of the stockholders and, if a member, of the Board of
Directors.
SECTION 8. President. The President shall perform the duties
of general manager of the Corporation and such other duties as shall be assigned
to him by the Board of Directors or the Chief Executive Officer. In the absence
or during vacancies in the offices of the Chairman of the Board and the Chief
Executive Officer, the President shall preside at all meetings of the
stockholders and, if a member, of the Board of Directors.
SECTION 9. Vice President. The Vice Presidents shall perform
the duties assigned to them by the Board of Directors or delegated to them by
the Chairman of the Board, the Chief Executive Officer or the President, and, as
designated by the Board of Directors, shall perform the duties of the office of
the President in the absence or during a vacancy in the office of the President,
and, when so acting, shall have the powers appertaining to the performance of
those duties.
SECTION 10. Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees of the
Board of Directors when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the Chairman of the Board of Directors. If the
Secretary shall be unable or shall refuse to cause to be given notice of any
meetings of the stockholders and special meetings of the Board of Directors, and
if there be no Assistant Secretary, then the Board of Directors, the Chairman of
the Board, Chief Executive Officer or the President may choose another officer
to cause such notice to be given. The Secretary shall have custody of the seal
of the Corporation and the Secretary or any Assistant Secretary, if there be
any, shall have authority to affix the same to any instrument requiring it, and
when so affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as the case may be.
SECTION 11. Treasurer. Subject to the direction of the Chief
Financial Officer, the Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be designated by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chairman of the Board and the Board of Directors, at its regular meetings,
or when the Board of Directors so requires, an account of all his transactions
as Treasurer and shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
SECTION 12. Assistant Secretaries. Except as may be otherwise
provided in these By-laws, Assistant Secretaries, if there by any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the Chairman of the Board, Chief Executive Officer, the
President, any Vice President, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
SECTION 13. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there be any, or the
Treasurer, and in the absence of the Treasurer or in the event of his disability
or refusal to act, shall perform the duties of the Treasurer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Treasurer, including providing the Corporation with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Corporation.
SECTION 14. Other Officers. Such other officers as the Board
of Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
ARTICLE IV
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 1. Execution of Contracts, etc. Except as otherwise
provided in these By-laws, the Board of Directors may authorize any officer or
officers, agent or agents, or employee or employees of the Corporation to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation, and such authority may be general or confined to
specific instances, and, unless so authorized by the Board of Directors or
except as otherwise provided in these By-laws, no officer, agent or employee
shall have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or to
any amount. Notwithstanding the foregoing, officers of the Corporation shall
have the authority to enter into contracts and engagements in the ordinary
course of the Corporation's business and to bind the Corporation thereby.
SECTION 2. Checks, Drafts, etc. All checks, drafts, orders for
the payment of money, bills of lading, warehouse receipts, obligations, bills of
exchange and insurance certificates shall be signed or endorsed by such officer
or officers or agent or agents or employee or employees of the Corporation and
in such manner as shall from time to time be determined or authorized by
resolution of the Board of Directors, or as provided in these By-laws, except
that, for the purpose of deposit to the credit of the Corporation or collection
for its account, any check, draft or other order for the payment of money
payable to the order of the Corporation may be endorsed, assigned and delivered
by any officer or agent or employee of the Corporation.
SECTION 3. Bank Accounts and Deposits. The Board of Directors
may from time to time authorize the opening and keeping of general and special
bank accounts with such banks, trust companies or other depositaries as the
Board of Directors may select or as may be selected by any officer or officers
or agent or agents of the Corporation to whom power in that respect shall have
been delegated by the Board of Directors. All funds of the Corporation not
otherwise employed shall be deposited from time to time in one or more of such
banks, trust companies or other depositaries to the credit of the Corporation or
otherwise as the Board of Directors or the President shall direct. The Board of
Directors may make such other provisions in respect of such bank accounts not
inconsistent with the provisions of these By-laws as it may deem expedient.
SECTION 4. Proxies in Respect of Stock or Other Securities of
Other Corporations. Unless otherwise provided by resolution adopted by the Board
of Directors, the Chairman of the Board of Directors, the Chief Executive
Officer or the President may from time to time appoint an attorney or attorneys
or an agent or agents of the Corporation to exercise in the name and on behalf
of the Corporation the powers and rights which the Corporation may have as the
holder of stock or other securities in any other corporation to vote or consent
in respect of such stock or other securities, may instruct the person or persons
so appointed as to the manner of exercising such powers and rights, and may
execute or cause to be executed in the name and on behalf of the Corporation and
under its corporate seal, or otherwise, all such written proxies or other
instruments as he may deem necessary or proper in order that the Corporation may
exercise its said powers and rights.
ARTICLE V
Shares and Their Transfer
SECTION 1. Certificates for Stock. Every owner of stock of the
Corporation of any class (or, if stock of any class shall be issuable in series,
any series of such class) shall be entitled to have a certificate, in such form
as the Board of Directors shall prescribe, certifying the number of shares of
stock of the Corporation of such class, or such class and series, owned by him.
The certificates representing shares of stock of each class (or, if there shall
be more than one series of any class, each series of such class) shall be
numbered in the order in which they shall be issued and shall be signed in the
name of the Corporation by the Chairman of the Board, the Chief Executive
Officer, the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary; provided, however, that if
the Board of Directors shall by resolution so authorize, the signatures of such
President or Vice President, such Secretary or Assistant Secretary or any
transfer agent or registrar may be facsimiles. In case any officer or officers
of the Corporation, transfer agent or registrar who shall have signed, or whose
facsimile signature or signatures shall have been placed upon, any such
certificate shall cease to be such officer or officers, transfer agent or
registrar before such certificate shall have been issued, such certificate may
be issued by the Corporation with the same effect as though the person or
persons who signed such certificate, or whose facsimile signature or signatures
shall have been placed thereupon, were such officer or officers, transfer agent
or registrar at the date of issue. A record shall be kept of the respective
names of the persons, firms or corporations owning the stock represented by
certificates for stock of the Corporation, the number, class and series of
shares represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer shall
be cancelled, and a new certificate or certificates shall not be issued in
exchange for any existing certificate until such existing certificate shall have
been so cancelled, except in cases provided for in Section 5 of this Article V.
SECTION 2. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-laws. Transfers of
stock shall be made on the books of the Corporation only by the person named in
the certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
SECTION 3. Beneficial Owners. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
SECTION 4. Regulations. The Board of Directors may make such
rules and regulations as it may deem expedient, not inconsistent with these
By-laws, concerning the issue, transfer and registration of certificates for
shares of the stock of the Corporation. The Board of Directors may appoint, or
authorize any principal officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more Registrars, and may
require all certificates for stock to bear the signature or signatures of any of
them.
SECTION 5. Lost, Stolen, Destroyed and Mutilated Certificates.
The holder of any stock of the Corporation shall immediately notify the
Corporation of any loss, theft, destruction or mutilation of the certificate
therefor. The Corporation may issue a new certificate for stock in the place of
any certificate theretofore issued by it and alleged to have been lost, stolen
or destroyed, and the Board of Directors may, in its discretion, require the
owner of the lost, stolen or destroyed certificate or his legal representatives
to give the Corporation a bond in such sum, limited or unlimited, in such form
and with such surety or sureties as the Board of Directors shall in its
uncontrolled discretion determine, 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 such new certificate. The
Board of Directors, however, may, in its discretion, refuse to issue any such
new certificate, except pursuant to legal proceedings under the laws of the
State of Delaware in such case made and provided.
SECTION 6. Fixing Date for Determination of Stockholders of
Record. 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,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any other
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. If in any case involving the
determination of stockholders for any purpose other than notice of or voting at
a meeting of stockholders the Board of Directors shall not fix such a record
date, the record date for determining stockholders for such purpose shall be the
close of business on the day on which the Board of Directors shall adopt the
resolution relating thereto; or, in the case of consent to corporate action in
writing without a meeting, if prior action with respect thereto is not necessary
to be taken by the Board of Directors, the record date for determining
stockholders entitled to express such consent shall be the day on which the
first written consent is expressed. A determination of stockholders 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.
ARTICLE VI
Offices, Etc.
SECTION 1. Registered Office. The registered office of the
Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801, in the City of Wilmington, County of New
Castle. The name of its registered agent at that address is the Corporation
Trust Company.
SECTION 2. Other Offices. The Corporation may also have an
office or offices other than said registered office at such place or places,
either within or without the State of Delaware, as the Board of Directors may
from time to time appoint or as the business of the Corporation may require.
ARTICLE VII
Dividends, Surplus, Etc.
Subject to the provisions of law, of the Certificate of
Incorporation of the Corporation and of these By-laws, the Board of Directors
may declare and pay dividends upon the shares of the stock of the Corporation
either (a) out of its surplus as defined in and computed in accordance with the
provisions of the laws of the State of Delaware, or (b) in case there shall be
no such surplus, out of its net profits for the fiscal year in which the
dividend is declared and/or the preceding fiscal year whenever, and in such
amounts as, in the opinion of the Board of Directors, the condition of the
affairs of the Corporation shall render it advisable. The Board of Directors, in
its discretion, may use and apply any of such surplus or such net profits in
purchasing or acquiring any of the shares of the stock of the Corporation in
accordance with law, or any of its bonds, debentures, notes, script or other
securities or evidences of indebtedness, or from time to time may set aside from
such surplus or such net profits such sum or sums as it, in its absolute
discretion, may think proper, as a reserve fund to meet contingencies, or for
equalizing dividends, or for the purpose of maintaining or increasing the
property or business of the Corporation, or for any other purpose it may think
conducive to the best interests of the Corporation; provided, however, (a) that
the Corporation shall not use its funds or property for the purchase of shares
of its stock when the capital of the Corporation is impaired or when such use
would cause any impairment of its capital and (b) that the Corporation shall not
speculate in its own stock or the stock of any subsidiary company; nor shall it
buy or sell the same except in the regular course of its legitimate business.
All such surplus or such net profits, until actually declared in dividends, or
used and applied as aforesaid, shall be deemed to have been so set aside by the
Board of Directors for one or more of said purposes.
ARTICLE VIII
Seal
The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words, "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
Notices
SECTION 1. Notices. Whenever written notice is required by
law, the Certificate of Incorporation or these By-laws, to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by telegram, telex or cable or by facsimile or other electronic
transmission. Notice given by any such means shall be deemed to have been given
at the time delivered, sent or transmitted.
SECTION 2. Waiver of Notice. Whenever any notice is required
to be given by these By-laws or the Certificate of Incorporation of the
Corporation or the laws of the State of Delaware, the person entitled thereto
may, in person or by attorney thereunto authorized, in writing or by telegraph,
telex or cable, waive such notice whether before or after the meeting or other
matter in respect of which such notice is to be given, and in such event such
notice need not be given to such person and such waiver shall be deemed
equivalent to such notice. Neither the purpose of nor the business to be
transacted at such meeting need be specified in any written waiver of notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
ARTICLE X
Indemnification
SECTION 1. Subject to Section 4 of this Article X, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. Subject to Section 4 of this Article X, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 3. To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
SECTION 4. Any indemnification under this Article X (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or Section 2 of this
Article X, as the case may be. Such determination shall be made (i) by the Board
of Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
SECTION 5. Expenses incurred in defending or investigating a
threatened or pending civil or criminal action, suit or proceeding shall be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article X.
SECTION 6. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article X shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Corporation's Certificate of
Incorporation or By-laws, or any law, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of, and
advancement of expenses to, the persons specified in Sections 1 and 2 of this
Article X shall be made to the fullest extent permitted by applicable law. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article X are intended to supplement the other indemnification and
advancement of expenses otherwise provided to the persons specified in Sections
1 and 2 of this Article X and all of such indemnification and advancement of
expenses are intended to be cumulative. The provisions of this Article X shall
not be deemed to preclude or require the indemnification of any person who is
not a director, officer, employee or agent of the Corporation but whom the
Corporation has the power to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise.
SECTION 7. The Corporation shall use its best efforts to
attempt to purchase and maintain insurance (and pay the entire premium therefor)
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article X;
provided, however, that the Corporation shall have no obligation to purchase and
maintain such insurance if the Board of Directors determines in good faith that
such insurance is not reasonably available, the premium cost for such insurance
is disproportionate to the amount of coverage provided, or the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit.
SECTION 8. For purposes of this Article X, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article X with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued. For purposes of
any determination under Section 4 of this Article X, a person shall be deemed to
have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise or on information or
records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected by the Corporation or another enterprise. The term "another enterprise"
as used in this Article X shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 8 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have acted in good
faith or to have met the applicable standard of conduct set forth in Sections 1
or 2 of this Article X, as the case may be.
SECTION 9. For purposes of this Article X, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee, or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article X.
SECTION 10. Notwithstanding any contrary determination in the
specific case under Section 4 of this Article X, and notwithstanding the absence
of any determination thereunder, any director, officer, employee or agent may
apply to any court of competent jurisdiction in the State of Delaware or
elsewhere, if applicable, for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article X. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Sections 1 or 2 of this Article X, as the case may be. Notice of any
application for indemnification pursuant to this Section 10 shall be given to
the Corporation promptly upon the filing of such application.
SECTION 11. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article X shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 12. The purpose of this Article X is to provide for
the broadest lawful indemnification of, and advancement of expenses to, persons
who are or were directors, officers, employees or agents of the Corporation to
the fullest extent permitted by the General Corporation Law of the State of
Delaware or any other applicable jurisdiction, as now in effect or as hereafter
amended. Thus, in the event that any such law is amended in the future to permit
indemnification of, or advancement of expenses to, such persons in circumstances
where not presently permitted, or to remove any necessity of action by the Board
of Directors which may presently be required, such indemnification and
advancement shall be deemed to be required by this Section 12 whether or not
provided for otherwise in this Article X and whether or not such presently
required action by the Board of Directors takes place.
SECTION 13. The invalidity or unenforceability of any
provision of this Article X shall not effect the validity or enforceability of
the remaining provisions of this Article X.
SECTION 14. Any repeal or modification of this Article X shall
not decrease or otherwise adversely affect the right to indemnification or
advancement of expenses of any person who is entitled to indemnification or
advancement of expenses under this Article X for any act or occurrence taking
place prior to such repeal or modification.
ARTICLE XI
Protection of Net Operating Loss Carry Forwards
SECTION 1. Restrictions on Transfers. No holder of any shares
of the Common Stock of the Corporation shall sell or contract to sell, exchange,
give, bequeath, assign, mortgage, pledge, alienate, grant an option to purchase,
hypothecate or otherwise in any manner whatsoever (voluntarily or involuntarily,
by operation of law or otherwise) transfer or encumber any shares of Common
Stock (any such disposition, a "Transfer") or purchase or otherwise acquire any
Common Stock or interest therein ("Acquire" or an "Acquisition"), except as may
be permitted by Section 5 of this Article XI, if at the date of such Transfer or
Acquisition, and before giving effect to such Transfer or Acquisition, such
holder is, directly or indirectly or by attribution (as set forth in Section 3
of this Article XI), a holder of 5% or more (a "5% Holder") of the Corporation's
then issued and outstanding shares of Common Stock. Notwithstanding the
foregoing, the provisions of this Section 1 shall not apply to a person who was
a 5% Holder on the effective date of the Amended and Restated Certificate of
Incorporation of the Corporation, unless such person has consented in writing to
the restrictions set forth herein.
SECTION 2. Transfer to Creditors. For the purposes hereof, a
Transfer of shares of Common Stock shall include, without limitation, a levy of
execution upon shares of Common Stock held by any 5% Holder, the Transfer of
such shares pursuant to any insolvency, reorganization or liquidation proceeding
under Title 11 of the United States Code or any similar proceeding under the
laws of any jurisdiction, by or against any 5% Holder, and any assignment of any
shares of Common Stock for the benefit of creditors by any 5% holder. In the
event such a Transfer of any shares of Common Stock occurs in violation of
Section 1 of this Article XI, and a court of competent jurisdiction rules that
this Article XI is ineffective to render such Transfer null and void, then such
a Transfer, if valid, shall take effect no earlier than October 1, 1997.
SECTION 3. Holders of Shares. For purposes of this Article XI,
a person or entity ("person") shall be deemed to be a holder of shares of Common
Stock whether such shares are registered in such person's name or are held by
any bank, broker, dealer or nominee for the account of such person, or would
otherwise be deemed owned by such person pursuant to the attribution rules set
forth in Section 382 of the Internal Revenue Code of 1986, as amended, or any
successor statute thereto (the "IRC").
SECTION 4. Transfer Agreement. The restrictions contained in
this Article XI are for the purpose of minimizing the risk that a change in the
stock ownership of the Corporation would result in the disallowance or
limitation of the Corporation's Federal income tax net operating loss carryover.
In connection therewith, and to provide for the effective policing of these
provisions, until the restrictions contained in Section 1 of this Article XI
terminate pursuant to Section 6 this Article XI, as soon as practicable (i)
after any person becomes a 5% Holder, and (ii) after each Acquisition of
additional shares of Common Stock by such person or Transfer of additional
shares of Common Stock to such person, but in each case and in any event no
later than three days after the occurrence of each such event, such 5% Holder
shall deliver to the Corporation a written notice, addressed to the
Corporation's Secretary at the Corporation's principal executive office,
specifying the mailing address of such person and to the effect that such person
(i) is a 5% Holder (setting forth the number of shares of Common Stock deemed
owned by such person pursuant to the provisions of this Article XI), (ii) agrees
to enter into an agreement (the "Transfer Agreement") with the Corporation (x)
restricting the Acquisition of additional shares of Common Stock and the
Transfer of all of such person's shares of Common Stock on terms consistent with
this Article XI and (y) containing such other terms as the Board of Directors
shall determine by resolution, from time to time prior to the execution and
delivery of such Transfer Agreement, are reasonable, and (iii) agrees to the
placement on the certificates evidencing shares of Common Stock held by such
person the legend set forth in Section 7 of this Article XI by the Corporation
or its transfer agent, if any. Such notice shall be accompanied by all such
certificates then held by such person not bearing such legend. Such 5% Holder
shall be solely responsible for the safe and due delivery of such certificates
to the Corporation and the Corporation shall have no liability in connection
with any loss, mutilation, destruction or theft of such certificates prior to
their delivery to the Corporation as provided in this Section 4. Unless the
Board of Directors resolves, within five days of the Corporation's receipt of
such notice, that such 5% Holder shall not be required to enter into a Transfer
Agreement, the appropriate officers of the Corporation (i) shall place, or
instruct the Corporation's transfer agent, if any, to place, the legend set
forth in Section 7 of this Article XI on such certificates, and (ii) as soon as
practicable shall deliver to such 5% Holder a Transfer Agreement, duly executed
by the appropriate officer or officers of the Corporation. No later than three
days following such delivery, such 5% Holder shall execute a counterpart of such
Transfer Agreement. The Board of Directors may resolve not to require a 5%
Holder to enter into a Transfer Agreement if, in the Board's sole judgment, the
absence of such requirement will not harm the interests of the Corporation or
its stockholders after taking into consideration the provisions of Section 382
of the IRC. In resolving not to require a 5% Holder to enter into a Transfer
Agreement, the Board may rely on the advice of counsel or other tax advisors. In
the event a 5% Holder fails to comply fully with the terms of this Section 4,
the Board of Directors, in its sole judgment, may resolve that until such 5%
Holder so complies, the Corporation or the Corporation's transfer agent, if any,
shall not be obligated to enter the Transfer to or from or Acquisition by such
5% Holder of any shares of Common Stock upon the stock records of the
Corporation and any such Transfer or Acquisition shall not be effective as to
the Corporation and shall be null and void.
SECTION 5. Board Approval. Notwithstanding any other provision
of this Article XI, any 5% Holder who has fully complied with the terms of
Section 4 of this Article XI may Acquire or Transfer the shares of Common Stock
in respect of which the Board of Directors had resolved not to require such
person to enter into a Transfer Agreement, free of the restrictions set forth in
Section 1 of this Article XI. Further, the Board of Directors may authorize a 5%
Holder to Transfer all or part of his shares of the Common Stock or Acquire
additional shares if, in the Board's sole judgment, such Acquisition or Transfer
will not harm the interests of the Corporation or its stockholders after taking
into consideration the provisions of Section 382 of the IRC. The Board may rely
on the advice of counsel or other tax advisors with respect to any such
authorization. 5% Holders who Acquire or Transfer or propose to Acquire or
Transfer shares of Common Stock shall reimburse the Corporation for all costs
and expenses incurred by the Corporation with respect to any such Acquisition or
Transfer, including, without limitation, the Corporation's costs and expenses
incurred in determining whether to authorize such Acquisition or Transfer. In
the event a 5% Holder fails promptly to make such reimbursement, upon the
resolution of the Board of Directors, the Corporation, or the Corporation's
transfer agent, if any, shall not be obligated to enter any Acquisition or
Transfer of any shares of Common Stock held by such person upon the stock
records of the Corporation.
SECTION 6. Duration of Restrictions. The restrictions on the
Acquisition or Transfer of shares of Common Stock contained in Section 1 of this
Article XI, or in any Transfer Agreement, shall remain in effect until the
earlier of (i) September 30, 1997, (ii) the date determined by the Board of
Directors, in its sole judgment, to be the date on which such restrictions shall
terminate, and (iii) the date the Corporation's Federal income tax net operating
loss carryover is fully applied to the reduction of the Corporation's income tax
liability or may no longer be so applied, in each case as determined by the
Board of Directors. The Board of Directors may rely on the advice of counsel or
other tax advisors with respect to such determination.
SECTION 7. Legend. Until the restrictions contained in this
Article XI on the Acquisition or Transfer of shares of Common Stock terminate in
accordance with Section 6 of this Article XI, all certificates evidencing shares
of Common Stock that are required to be legended pursuant to Section 4 of this
Article XI shall conspicuously bear the following legend:
"The shares of Common Stock represented by this certificate
are subject to certain Amended and Restated Certificate of
Incorporation and By-laws provisions as well as to a Transfer
Agreement between the holder and the issuer hereof which
provide, among other things, restrictions prohibiting transfer
of such shares of Common Stock by 5% Holders (as defined
therein). A counterpart of such Amended and Restated
Certificate of Incorporation, By-laws and Transfer Agreement
is on deposit with the Corporation at its principal executive
office and the issuer hereof will furnish a copy thereof to
the record holder of the shares of Common Stock evidenced by
this certificate without charge upon written request to the
issuer at its principal executive office."
THIS IS TO CERTIFY: That I am the duly elected, qualified and
acting Secretary of the Corporation and that the foregoing Amended and Restated
By-laws were adopted as the By-laws of the Corporation as of the 28th day of
February, 1995.
by:/s/MICHAEL S. SHIMADA
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Michael S. Shimada