Exhibit 3-c
As amended June 26, 1998
SBC COMMUNICATIONS INC.
Incorporated under the Laws of the State of Delaware, October 5, 1983
Bylaws
Article I
Stockholders
Section 1. Annual Meeting
An annual meeting of the stockholders, for the election of Directors to
succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such
place, on such date, and at such time as the Board of Directors shall fix
each year.
Section 2. Special Meeting
Special meetings of the stockholders may be called at any time, either
by the Board of Directors or by the Chairman of the Board, and the Chairman
of the Board shall call a special meeting whenever requested in writing to do
so by stockholders representing two-thirds of the shares of the corporation,
then outstanding, and entitled to vote at such meeting. This request must
specify the time, place and object of the proposed meeting.
Section 3. Notice of Meetings
Written notice of all meetings of the stockholders shall be given to
each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days before the date on which the meeting is to be
held. The notice shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the
meeting is called. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail with postage thereon prepaid,
addressed to the stockholder at his address as it appears on the stock
transfer books of the corporation. Any previously scheduled meeting of the
stockholders may be postponed by resolution of the Board of Directors upon
public notice given prior to the time previously scheduled for such meeting
of stockholders.
When a meeting is adjourned to another place, date, or time, written notice
need not be given of the meeting when reconvened, if the place, date, and time
thereof are announced at the meeting at which the adjournment is taken. If the
date of the meeting to be reconvened is more than thirty (30) days after the
date for which notice of the meeting was originally given or if a new record
date is fixed for the meeting, written notice of the place, date and time of the
meeting to be reconvened shall be given in conformity herewith. At any
reconvened meeting, any business may be transacted that might have been
transacted at the original meeting.
Section 4. Quorum
At any meeting of the stockholders, the holders of forty percent (40%)
of all of the shares of the stock entitled to vote at the meeting, present in
person or by proxy, shall constitute a quorum for the transaction of business.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of the stock entitled to
vote who are present, in person or by proxy, may adjourn the meeting to
another place, date, or time.
Section 5. Organization
The Chairman of the Board, or a Director or officer as the Chairman of
the Board may designate, shall act as chairman of the stockholders' meeting.
The chairman of the meeting shall designate an officer to act as a secretary
for the meeting in the absence of the corporation's Secretary.
Section 6. Proxies and Voting
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy.
Each holder of common stock shall have one vote for every share of
stock that is registered in the stockholder's name on the record date for the
meeting.
All voting may be by a voice vote, provided that upon demand of a
stockholder entitled to vote in person or by proxy, a recorded vote of all
shares of stock at the meeting shall be taken.
Directors shall be elected by a plurality of the votes cast. All other
matters shall be determined by a majority of the votes cast, unless a greater
number is required by law or the Certificate of Incorporation for the action
proposed.
Section 7. Nomination of Directors
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as Directors. Nomination of
persons for election to the Board of Directors may be made at any annual
meeting of stockholders (a) by or at the direction of the Board of Directors
or any duly authorized committee thereof or (b) by any stockholder of the
corporation entitled to vote for the election of Directors at the annual
meeting. In addition to any other applicable requirements, a nomination made
by a stockholder shall be pursuant to timely notice in proper written form to
the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be received
at the principal executive offices of the corporation not less than sixty
(60) days nor more than ninety (90) days prior to the date of the annual
meeting; provided, however, that in the event that less than seventy (70)
days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder must be received not later
than ten (10) days following the day on which notice or public disclosure of
the date of the annual meeting was mailed or made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to
nominate for election as Director (i) the name, age, business address, and
residence address of the person, (ii) the principal occupation or employment
of the person, (iii) the class or series and number of shares of capital
stock of the corporation which are owned beneficially or of record by the
person, and (iv) any other information relating to the person that is
required to be disclosed in solicitations of proxies for election of
Directors pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended, and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the corporation which are owned beneficially or of
record by such stockholder, and (iii) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitation of proxies
for the election of Directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a Director if elected.
No person shall be eligible for election as a Director of the
corporation unless nominated in accordance with the procedures set forth in
this Section 7. If the Chairman determines that a nomination was not made in
accordance with the foregoing procedure, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall
be disregarded.
Section 8. Conduct of Annual Meeting
No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the meeting by or at the direction of the Board of Directors
(or any duly authorized committee thereof), or (c) otherwise properly brought
before the meeting by a stockholder as of the record date for the
determination of stockholders entitled to vote at such annual meeting. In
addition to any other applicable requirements for business to be properly
brought before an annual meeting by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be received
at the principal executive offices of the corporation not less than sixty
(60) days nor more than ninety (90) days prior to the date of the annual
meeting; provided, however, that in the event that less than seventy (70)
days' notice or prior public disclosure of the date of the annual meeting is
given or made to the stockholder, notice by the stockholder must be received
not later than the close of business on the tenth day following the day in
which such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs.
To be in proper written form, stockholder's notice to the Secretary
must set forth, as to each matter such 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 such
stockholder, (iii) the class or series and number of shares of capital stock
of the corporation which are owned beneficially or of record of such
stockholder, and (iv) any material interest of the stockholder in such
business.
No business shall be conducted at the annual meeting of stockholders
except in accordance with the procedures set forth in this Section 8;
provided, however, that nothing in this Section 8 shall be deemed to preclude
discussion by any stockholder of any business properly brought before the
annual meeting. If the Chairman determines that business was not properly
brought before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was
not brought properly before the meeting and such business shall not be
transacted.
Article II
Board of Directors
Section 1. Number and Terms of Office
The business and affairs of the corporation shall be under the
direction of a Board of Directors.
The number of Directors shall be not more than twenty-five (25), as
determined by a majority vote of the total number of Directors then serving
in office, provided, however, that such maximum number of Directors may be
reduced (but not thereafter raised) to a maximum number of not less than
twenty-one (21) Directors by a majority vote of the total number of Directors
then serving in office.
Directors shall be divided into three classes designated as Group A,
Group B, and Group C. The three classes of Directors shall each consist of
an equal number of Directors or a number of Directors as nearly equal as
possible. When the total number of Directors is divided by three and one
remains, the Director remaining shall be assigned to Group A. When the total
number of Directors is divided by three and two remain, they shall be
assigned one to Group A and one to Group B. The number of Directors in any
one class may not exceed the number of Directors in any other class by more
than one, except as may result from the phasing-in of a decrease in Directors
under Section 2 of this Article II.
The Board of Directors appointed by the incorporators shall serve until
the first stockholders' meeting. At the first meeting of stockholders after
organization of the corporation, Directors to serve in Group A shall be
elected to a term of one year; Directors to serve in Group B shall be elected
to a term of two years; and Directors to serve in Group C shall be elected to
a full term of three years. Thereafter, at each annual meeting of the
stockholders, Directors shall be elected to a full term of three years to
succeed those in the Director group whose terms expire at that annual meeting.
Section 2. Increases and Decreases in Directors
The Board of Directors may increase or decrease the number of
Directors, subject to the maximum limits provided in Section 1 of this
Article II, by a vote of a majority of the total number of Directors. Any
vacancies created by an increase in the number of Directors shall be filled
as provided in Section 3 of this Article II and be distributed among the
Director groups in accordance with Section 1 of this Article II. Any
decrease in the authorized number of Directors shall be phased in by reducing
the number of Directors in the first Director group whose terms expire
subsequent to the decrease to the number required to be in that group by
Section 1 of this Article II at the end of the phasing-in period, and by
similarly reducing the number of Directors in the other Director groups upon
expiration of their terms, so that when the terms of Directors in all three
Director groups have successively expired subsequent to the decrease, each
Director group shall have the distribution of Directors required by Section 1
of this Article II of these Bylaws.
Section 3. Vacancies
If the position of any Director is or becomes vacant, a majority of the
Directors remaining in office may appoint a successor to serve the full or
remaining term, as the case may be, of the other Directors in the group in
which the vacancy occurred or was created.
Section 4. Regular Meetings
Regular meetings of the Board of Directors shall be held at such place
or places, on such date or dates, and at such time or times as shall be
established by the Board of Directors. A notice of each regular meeting
shall not be required.
Section 5. Special Meetings
Special meetings of the Board of Directors may be called by one-third
of the Directors or by the Chairman of the Board and shall be held at such
place, on such date, and at such time as the Directors calling the meeting or
the Chairman of the Board shall fix. Notice of a special meeting shall be
given to each Director in any of the following ways: in person, by telephone
or by delivery of a written notice or facsimile communication to the
Director's business or residence. Notice given in writing or by facsimile
communication to the Director's business or residence must be delivered at
least twenty-four (24) hours before such meeting. Notice given by telephone
or in person shall be given at least twelve (12) hours prior to the time set
for the meeting. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting. A written waiver of any notice,
signed by a Director, whether before or after the time of the event for which
notice is to be given, shall be equivalent to the notice required to be given
to such person.
Section 6. Quorum
At any meeting of the Board of Directors, a majority of the total
number of the Directors shall constitute a quorum.
Section 7. Committees of the Board of Directors
The corporation elects to be governed by the provisions of Section
141(c)(2) of the General Corporation of the State of Delaware, as amended
effective July 1, 1996. The Board of Directors may from time to time
designate committees of the Board of Directors, with such lawfully delegable
powers and duties as it thereby confers, to serve at the pleasure of the
Board of Directors and shall elect a Director or Directors to serve as the
member or members, designating, if it desires, other Directors as alternate
members who may replace any absent or disqualified members at any meeting of
the committee. Any committee so designated may exercise the power and
authority of the Board of Directors as permitted by law. In the absence or
disqualification of any member of any committee and any alternate member
designated to replace such member, the members of the committee present at
the meeting and not disqualified from voting may by unanimous vote appoint
another member of the Board of Directors to act at the meeting in the place
of the absent or disqualified member.
Each committee may determine procedural rules for the conduct of its
meetings and business, and shall act in accordance therewith, unless
otherwise provided by the Board of Directors in the resolution establishing
the committee.
Article III
Officers of the Company
Section 1. Generally
The officers of the corporation shall consist of a Chairman of the
Board, a President, one or more Vice Presidents, a Secretary, a Treasurer,
and a Vice President-Chief Financial Officer appointed by the Board of
Directors. The Board of Directors may also appoint one or more Assistant
Secretaries, Assistant Treasurers, and such other officers and agents as the
Board of Directors may desire. Officers shall be appointed by the Board of
Directors at its first meeting after every annual meeting of stockholders.
Each officer or agent appointed by the Board of Directors shall hold office
until a successor is elected and qualified or until such person's earlier
resignation or removal. Any number of offices may be held by the same person.
Section 2. Duties of the Chairman of the Board
The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors.
Unless otherwise directed by the Board of Directors, the Chairman of
the Board, or such other officer or agent as the Chairman of the Board may
designate, shall have authority to vote and otherwise act on behalf of the
corporation, in person or by proxy, at any meeting of stockholders, or with
respect to any action of stockholders of any other corporation in which this
corporation may hold securities, and otherwise to exercise any and all rights
and powers that this corporation may possess by reason of its ownership of
securities in any other corporation.
Section 3. Duties of the President
The President shall perform the duties as usually pertain to the office
and such other duties as may from time to time be assigned.
Section 4. Duties of Vice Presidents
Each Vice President shall perform the duties as usually pertain to the
office to which appointed and such other duties as may from time to time be
assigned.
Section 5. Duties of Secretary and Assistant Secretaries
The Secretary shall make a record of the proceedings of all meetings of
the stockholders, Board of Directors and any committee of Directors, in books
to be kept for that purpose. The Secretary shall also give and publish all
necessary notices of all meetings, have custody of the corporate seal and
affix it when authorized, and preserve and keep all general contracts, papers
and documents. In general, the Secretary shall perform all duties incident
to the office of Secretary and such other duties as from time to time may be
assigned.
Each Assistant Secretary shall perform such duties of the Secretary as
may from time to time be assigned.
Section 6. Duties of Treasurer and Assistant Treasurers
The Treasurer shall have charge of all monies, funds and securities
which may come into the Treasurer's possession, maintain deposits of the
corporation's monies and funds in such depositories as the Board of
Directors, the Chairman of the Board or the President shall approve, make
disbursements of such monies and funds under direction of the Board of
Directors, the Chairman of the Board, or the President, keep an account of
all receipts and disbursements, and make such reports as may be required.
The Treasurer shall also maintain a record of the outstanding shares of stock
in the corporation, a stock transfer record and a list of the stockholders of
the corporation. In general, the Treasurer shall perform all duties incident
to the office of Treasurer and such other duties as from time to time may be
assigned.
Each Assistant Treasurer shall perform such duties of the Treasurer as
may from time to time be assigned.
Section 7. Duties of the Vice President-Chief Financial Officer
The Vice President-Chief Financial Officer shall be the principal
officer in charge of the accounts of the corporation and shall perform all
duties incident to the office of Vice President-Chief Financial Officer and
such other duties as from time to time may be assigned.
Section 8. Delegation of Authority
The Board of Directors may from time to time assign or delegate the
powers, authorities or duties of the Chairman of the Board, the President or
any officer or agent to any other officers or agents, notwithstanding any
provision hereof.
Article IV
Indemnification
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (including any action or
suit by or in the right of the corporation) by reason of the fact that such
person is or was a Director, officer or employee of the corporation, or,
while such person is or was a Director, officer or employee of the
corporation, such person 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 such person in connection with such
action, suit, or proceeding, but in each case only if and to the extent
permitted under applicable state or federal law.
The indemnification provided herein shall not be deemed exclusive of
any other rights to which those indemnified may be entitled, and 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 and personal
representatives of such a person.
Article V
Stock
Section 1. Stock Certificates; Uncertificated Shares
The shares of the corporation shall be represented by certificates,
provided that the Board of Directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the corporation
by the Chairman or Vice-Chairman of the Board of Directors, or the President
or Vice-President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of such corporation representing the
number of shares registered in certificate form. Any or all of the
signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be
issued by the corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
Section 2. Transfers of Stock
Transfers of stock shall be made only on the stock transfer record of
the corporation and upon surrender of the certificate previously issued
therefor which is outstanding and not canceled, except in the case of
uncertificated shares.
Section 3. Transfer on Death Directions
At the request of a stockholder residing in a state that permits
transfer on death directions by law, the Treasurer shall record on the
stockholder's certificate, or, in the case of uncertificated shares, upon the
account statements evidencing the shares, a direction to transfer the
stockholder's interest in the corporation to a person designated by the
stockholder on death of the stockholder. The Treasurer shall execute such
direction upon proof of death of the stockholder, surrender of the
outstanding certificate with the direction written thereon, and under such
regulations as may be prescribed by the Treasurer.
Article VI
Business Combinations
Section 1. Vote Required for Certain Business Combinations
A. In addition to any vote of stockholders required by law or these
Bylaws, and except as otherwise expressly provided in Section 2 of this
Article VI, any Business Combination (as hereinafter defined) shall
require the affirmative vote of the holders of at least 66_ percent of
the then outstanding shares of capital stock of the corporation
entitled to vote generally in the election of Directors (the "Voting
Stock"), voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or in
any agreement with any national securities exchange or otherwise.
B. The term "Business Combination" shall mean:
i. Any merger or consolidation of the corporation or any subsidiary
(as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation which is, or
after such merger or consolidation would be, an Affiliate (as
hereinafter defined) of an Interested Stockholder; or
ii. Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in either one or in a series of transactions) to or
with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the corporation or
any subsidiary having an aggregate Fair Market Value (as
hereinafter defined) of $10,000,000 or more; or
iii. The issuance or transfer by the corporation or any subsidiary (in
either one or in a series of transactions) of any securities of
the corporation or any subsidiary to any Interested Stockholder
or any Affiliate of any Interested Stockholder for cash,
securities or other property (or a combination thereof) having an
aggregate Fair Market Value of $10,000,000 or more; or
iv. The adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate of any Interested
Stockholder; or
v. Any reclassification of securities (including any reverse stock
split), or recapitalization of the corporation, or any merger or
consolidation of the corporation with any of its subsidiaries or
any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible
securities of the corporation or any subsidiary which is directly
or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder.
Section 2. Exceptions to Vote Required by Section 1
The provisions of Section 1 of this Article VI shall not be applicable
to any particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law and any other
provision of these Bylaws, if:
A. The Business Combination is approved by a majority of the Continuing
Directors (as hereinafter defined); or
B. All of the following conditions are met:
i. The aggregate amount of the cash and the Fair Market Value of any
consideration other than cash as of the date of the consummation
of the Business Combination to be received per share by holders
of common stock in such Business Combination or by holders of
shares of any other class of outstanding Voting Stock shall be at
least equal to the highest amount determined under sub-clauses
(a), (b), and (c) below:
a. The highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of common
stock acquired by it (1) within the two-year period
immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement
Date") or (2) in the transaction in which it became an
Interested Stockholder, whichever is higher; and
b. The Fair Market Value per share of common stock on the day
after the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder,
whichever is higher; and
c. The price per share equal to the Fair Market Value per
share of common stock determined pursuant to paragraph
B(i)(b) above, multiplied by the ratio of (1) the highest
per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of common stock it
acquired within the two-year period immediately prior to
the Announcement Date to (2) the Fair Market Value per
share of common stock on the first day in such two-year
period upon which the Interested Stockholder acquired any
shares of common stock; and
ii. The consideration to be received by holders of a particular class
of outstanding Voting Stock shall be in cash or in the same form
as the Interested Stockholder has previously paid for shares of
such class of Voting Stock. If the Interested Stockholder has
paid for shares of any class of Voting Stock with varying forms
of consideration, the form of consideration for such class of
Voting Stock shall be either cash or the form of consideration
used by the Interested Stockholder to acquire the largest number
of shares of such class of Voting Stock previously acquired by
it; and
iii. After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
a. Except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and
pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any outstanding
preferred stock; and
b. There shall have been (1) no reduction in the annual rate
of dividends paid on the common stock (except as necessary
to reflect any subdivision of the common stock), except as
approved by a majority of the Continuing Directors, and (2)
an increase in such annual rate of dividends as necessary
to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any
similar transaction which has the effect of reducing the
number of outstanding shares of the common stock, unless
the failure so to increase such annual rate is approved by
a majority of the Continuing Directors; and
c. Such Interested Stockholder shall have not become the
beneficial owner of any additional shares of Voting Stock
except as part of the transaction which resulted in such
Interested Stockholder becoming an Interested Stockholder;
and
iv. A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or
any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to the stockholders of the
corporation at least thirty (30) days prior to the consummation
of such Business Combination, whether or not such proxy or
information statement is required pursuant thereto.
Section 3. Definitions
For the purposes of this Article VI:
A. A "person" shall mean any individual, firm, corporation or other entity.
B. "Interested Stockholder" shall mean any person (other than the
corporation or any subsidiary (as hereinafter defined) and other than
any profit sharing, thrift, employee stock ownership, retirement or
other employee benefit plan of the corporation or any subsidiary of any
trustee of or fiduciary with respect to any such plan when acting in
such capacity) who or which:
i. Is the beneficial owner (as hereinafter defined), directly or
indirectly, of more than 10 percent (10%) of any shares of the
Voting Stock of the corporation; or
ii. Is an Affiliate (as hereinafter defined) of the corporation and
at any time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of 10 percent (10%) or more of any shares of the
Voting Stock of the corporation; or
iii. Is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by
any Interested Stockholder, if such assignment or succession
shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
C. A person shall be deemed a "beneficial owner" of any shares of Voting
Stock:
i. Which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
ii. Which such person or any of its Affiliates or Associates has (a)
the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants, or options or
otherwise, or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
iii. Which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any
shares of Voting Stock.
D. "Affiliate" or "Associate" shall have the same meanings set forth for
such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on March 1, 1983.
E. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the corporation;
provided, however, that for the purposes of the definition of
Interested Stockholder set forth in paragraph B of this Section 3, the
term "subsidiary" shall mean only a corporation of which a majority of
each class of equity security is owned, directly or indirectly, by the
corporation.
F. "Continuing Director" means any member of the Board of Directors of the
corporation who is unaffiliated with the Interested Stockholder and was
a member of the Board prior to the time that the Interested Stockholder
became an Interested Stockholder and any successor of a Continuing
Director who is unaffiliated with the Interested Stockholder and is
recommended or elected to succeed a Continuing Director by a majority
of Continuing Directors then on the Board.
G. "Fair Market Value" means: (1) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New
York Stock Exchange-Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if such stock
is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of
1934 on which such stock is listed, or, if such stock is not listed on
any such exchange, the highest closing bid quotation with respect to a
share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc.,
Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in question
of a share of such stock as determined by the majority of the
Continuing Directors in good faith; and (2) in the case of property
other than cash or stock, the fair market value of such property on the
date in question as determined by a majority of the Continuing
Directors in good faith.
H. In the event of any Business Combination in which the corporation
survives, the phrase "any consideration other than cash" as used in
paragraph B(i) of Section 2 of this Article VI shall include the shares
of common stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
Section 4. Certain Determinations
The Continuing Directors of the corporation shall have the power and
duty to determine for the purposes of this Article VI, on the basis of
information known to them after reasonable inquiry: (a) whether a person is
an Interested Stockholder; (b) the number of shares of Voting Stock
beneficially owned by any person; (c) whether a person is an Affiliate or
Associate of another person; and (d) whether the assets which are the subject
of any Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the corporation or any subsidiary in
any Business Combination has, an aggregate Fair Market Value of $10,000,000
or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders
Nothing contained in this Article VI shall be construed to relieve any
Interested Stockholder from any fiduciary obligation otherwise imposed by law.
Article VII
Miscellaneous
Section 1. Facsimile Signatures
In addition to the provision for the use of facsimile signatures on
stock certificates as provided in Section 1 of Article V, facsimile
signatures of any officer or officers of the corporation may be used whenever
and as authorized by the Board of Directors.
Section 2. Corporate Seal
The Board of Directors shall provide a suitable seal for the
corporation that contains the name of the corporation and the state of
incorporation, which seal shall be kept by the Secretary.
Section 3. Fiscal Year
The fiscal year of the corporation shall be identical with the calendar
year unless otherwise established by the Board of Directors.
Section 4. Time Periods
In applying any provision of these Bylaws which requires that an act be
done or not be done in a specified number of days prior to an event, or that
an act be done during a period of a specified number of days prior to an
event, calendar days shall be used. The day of the doing of the act shall be
excluded and the day of the event shall be included.
Article VIII
Amendments
These Bylaws may be amended or repealed in accordance with the
Certificate of Incorporation by the Board of Directors at any meeting or by
the stockholders at any meeting.