D.R. HORTON, INC.
AMENDED AND RESTATED BYLAWS
Table of Contents
Page
ARTICLE I - MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings . . . . . . . . . . 1
Section 2. Annual Meeting . . . . . . . . . . . . . . . . 1
Section 3. Special Meetings . . . . . . . . . . . . . . . 2
Section 4. Notice of Meetings . . . . . . . . . . . . . . 2
Section 5. Quorum . . . . . . . . . . . . . . . . . . . . 3
Section 6. Voting . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - DIRECTORS
Section 1. Powers .........................................3
Section 2. Number and Term of Office ......................4
Section 3. Election, Term of Office and Nomination.........4
Section 4. Vacancies and New Directorships.................5
Section 5. Regular Meetings................................5
Section 6. Special Meetings ...............................5
Section 7. Quorum..........................................6
Section 8. Written Action..................................6
Section 9. Participation in Meetings by
Conference Telephone............................6
Section 10. Committees......................................6
Section 11. Compensation....................................7
Section 12. Rules...........................................7
ARTICLE III - NOTICES
Section 1. Generally.......................................7
Section 2. Waivers.........................................7
ARTICLE IV - OFFICERS
Section 1. Generally.......................................8
Section 2. Compensation....................................8
Section 3. Succession......................................8
Section 4. Authority and Duties............................8
Section 5. Chairman........................................9
Section 6. President.......................................9
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Table of Contents
(continued)
Page
Section 7. Execution of Documents and Action with
Respect to Securities of Other
Corporations....................................9
Section 8. Vice Presidents.................................9
Section 9. Secretary and Assistant Secretaries.............10
Section 10. Treasurer and Assistant Treasurers..............10
Section 11. Chief Financial Officer.........................11
Section 12. General Counsel.................................11
ARTICLE V - STOCK
Section 1. Certificates....................................11
Section 2. Transfer........................................12
Section 3. Lost, Stolen or Destroyed Certificates..........12
Section 4. Record Date.....................................12
ARTICLE VI - GENERAL PROVISIONS
Section 1. Fiscal Year.....................................14
Section 2. Corporate Seal..................................14
Section 3. Reliance upon Books, Reports
and Records.....................................14
Section 4. Time Periods....................................14
Section 5. Dividends.......................................14
ARTICLE VII - AMENDMENTS
Section 1. Amendments......................................14
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D.R. HORTON, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the
stockholders for the election of directors or for any other purpose shall be
held at such time and place, within or without the State of Delaware, as may be
designated by the Board of Directors, or by the Chairman of the Board, the
President or the Secretary in the absence of a designation 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 Meeting. (A) An annual meeting of the stockholders,
commencing with the year 1992, shall be held at such date, place and time as
shall be designated from time to time by resolution of the Board of Directors,
at which meeting the stockholders shall elect by a plurality vote the directors
to succeed those whose terms expire and shall transact such other business as
may properly be brought before the meeting.
(B) At any annual meeting of stockholders, only such new business
shall be conducted, and only such proposals shall be acted upon, as shall have
been properly brought before the meeting (i) by, or at the direction of, the
Board of Directors or (ii) by any stockholder entitled to vote at such meeting.
Only such new business and only such proposals as have been raised in accordance
with the procedures set forth in this Section 2(B) shall be eligible for action
or consideration at an annual meeting.
In order for a proposal 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 as set forth in this Section
2(B). To be timely, a stockholder's notice must be delivered to, or mailed and
received at, the principal executive office of the corporation not less than
thirty (30) calendar days prior to the date of the originally scheduled meeting,
regardless of any postponements, deferrals or
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adjournments of that meeting to a later date; provided, however, that, if less
than forty (40) calendar days' notice or prior public disclosure of the date of
the scheduled meeting is given or made by the Corporation, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth calendar day following the earlier of the day on which
such notice of the date of the scheduled meeting was mailed or the day on which
such public disclosure was made. Such stockholder's notice shall set forth as to
each matter the stockholder proposes to bring before the meeting (a) a
description of the proposal desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (b) the name and address,
as they appear on the corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation beneficially
owned by such stockholder on the date of such stockholder's notice and (d) any
financial or other interest of such stockholder in the proposal.
Section 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law or by the Restated
Certificate of Incorporation, as amended or further restated from time to time,
may be called at any time by the Board of Directors or by a committee of the
Board of Directors which has been duly designated by the Board of Directors and
whose powers and authority, as provided in a resolution of the Board of
Directors or in these bylaws, include the power to call such meetings, but such
special meetings may not be called by any other person or persons.
Section 4. Notice of Meetings. Written notice of every meeting of the
stockholders, stating 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,
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting, except as
otherwise provided herein or by law. When a meeting is adjourned to another
place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. At
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any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 5. Quorum. The holders of a majority of the 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 except as otherwise provided by law or by the Restated
Certificate of Incorporation. 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 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.
Section 6. Voting. Except as otherwise provided by law or by the
Restated Certificate of Incorporation, each stockholder shall be entitled at
every meeting of the stockholders to one vote for each share of stock having
voting power standing in the name of such stockholder on the books of the
Corporation on the record date for the meeting and such votes may be cast either
in person or by written proxy. Every proxy must be duly executed and filed with
the Secretary of the Corporation. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the Corporation. Every vote taken by written
ballot shall be counted by one or more inspectors of election appointed by the
Board of Directors. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock which has voting power present in person or
represented by proxy shall decide any question properly brought before such
meeting, unless the question is one upon which by express provision of law, the
Restated Certificate of Incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
ARTICLE II
DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall
be managed by or under the direction of its Board of
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Directors, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Restated Certificate of
Incorporation directed or required to be exercised or done by the stockholders.
Section 2. Number and Term of Office. The Board of Directors shall
consist of one or more members. Subject to the provisions of the Restated
Certificate of Incorporation as amended or restated from time to time, the
number of directors shall be fixed by resolution of the Board of Directors or by
the stockholders at the annual meeting or a special meeting. Any decrease in the
authorized number of directors shall not be effective until the expiration of
the term of the directors then in office, unless, at the time of such decrease,
there shall be vacancies on the Board which are being eliminated by such
decrease.
Section 3. Election, Term of Office and Nomination. (A) Except as
provided in Section 4 of this Article, the directors shall be elected at each
annual meeting of stockholders, but if any such annual meeting is not held or
the directors are not elected thereat, then the directors may be elected at any
special meeting of stockholders held for that purpose. Each director shall hold
office until a successor has been elected and qualified.
(B) Only persons who are nominated in accordance with the following
procedures shall be eligible for election by the stockholders as directors.
Nominations of persons for election as directors of the Corporation may be made
at a meeting of stockholders at which directors are being elected (i) by, or at
the direction of, the Board of Directors or by, or at the direction of, any
committee or person authorized or appointed for that purpose by the Board of
Directors or (ii) by any stockholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Section 3(B). Any nomination other than those governed by clause
(i) of the preceding sentence shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a shareholder's notice shall
be delivered to, or mailed and received at, the principal executive office of
the Corporation not less than thirty (30) calendar days prior to the date of the
originally scheduled meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that, if less
than forty (40) calendar days'
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notice or prior public disclosure of the date of the scheduled meeting is given
or made by the Corporation, notice by the stockholder, to be timely, must be so
received not later than the close of business on the tenth calendar day
following the earlier of the day on which such notice of the date of the
scheduled meeting was mailed or the day on which such public disclosure was
made. Such stockholder's notice to the Secretary shall set forth (a) as to each
person whom the stockholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the class and number of
any shares of the Corporation which are beneficially owned by such person and
(iv) any other information relating to such person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to any
then existing rule or regulation promulgated under the Securities Exchange Act
of 1934, as amended (whether or not then applicable to the Corporation); and (b)
as to the stockholder giving the notice (i) the name and record address of such
stockholder and (ii) the class and number of shares of the Corporation which are
beneficially owned by such stockholder. The Corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee as a director.
No person shall be eligible for election as a director unless nominated as set
forth herein.
Section 4. Vacancies and New Directorships. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
which occur between annual meetings of the stockholders may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so elected shall hold office until
the next annual meeting of the stockholders and until their successors are
elected and qualified, except as required by law.
Section 5. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice immediately after the annual meeting of the
stockholders and at such other time and place as shall from time to time be
determined by the Board of Directors.
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President on one day's written
notice to each director by whom such
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notice is not waived, given either personally or by mail or telegram, and shall
be called by the President or the Secretary in like manner and on like notice on
the written request of any two directors.
Section 7. Quorum. At all meetings of the Board of Directors, a
majority of the total number of directors then in office shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time to another place, time or date, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 8. Written Action. Any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes or proceedings of the Board or Committee.
Section 9. Participation in Meetings by Conference Telephone. Members
of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any such
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting.
Section 10. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation and each
to have such lawfully delegable powers and duties as the Board may confer. Each
such committee shall serve at the pleasure of the Board of Directors. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
Except as otherwise provided by law, any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of
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the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Any committee or
committees so designated by the Board shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
Unless otherwise prescribed by the Board of Directors, a majority of the members
of the committee shall constitute a quorum for the transaction of business, and
the act of a majority of the members present at a meeting at which there is a
quorum shall be the act of such committee. Each committee shall prescribe its
own rules for calling and holding meetings and its method of procedure, subject
to any rules prescribed by the Board of Directors, and shall keep a written
record of all actions taken by it.
Section 11. Compensation. The Board of Directors may establish such
compensation for, and reimbursement of the expenses of, directors for attendance
at meetings of the Board of Directors or committees, or for other services by
directors to the Corporation, as the Board of Directors may determine.
Section 12. Rules. The Board of Directors may adopt such special rules
and regulations for the conduct of their meetings and the management of the
affairs of the Corporation as they may deem proper, not inconsistent with law or
these bylaws.
ARTICLE III
NOTICES
Section 1. Generally. Whenever by law or under the provisions of the
Restated Certificate of Incorporation or these bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director 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.
Notice to directors may also be given by telegram, telephone or facsimile
transmission.
Section 2. Waivers. Whenever any notice is required to be given by law
or under the provisions of the Restated Certificate of Incorporation or these
bylaws, a waiver thereof in writing, signed
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by the person or persons entitled to such notice, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
such 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 IV
OFFICERS
Section 1. Generally. The officers of the Corporation shall be elected
by the Board of Directors and shall consist of a President, a Secretary, and a
Treasurer. The President shall be a member of the Board of Directors. The Board
of Directors may also choose any or all of the following: a Chairman of the
Board, one or more Divisional Presidents, Vice Presidents, Senior Vice
Presidents, Executive Vice Presidents and Assistant Vice Presidents, a Chief
Financial Officer, a Controller, a General Counsel, one or more Assistant
Secretaries and Assistant Treasurers and such other officers as the Board of
Directors shall deem necessary or desirable in the conduct of the affairs of the
Company, with such designations, titles, duties and responsibilities as the
Board of Directors shall determine.
Section 2. Compensation. The compensation of all officers and agents of
the Corporation who are also directors of the Corporation shall be fixed by the
Board of Directors. The Board of Directors may delegate the power to fix the
compensation of other officers and agents of the Corporation to an officer of
the Corporation.
Section 3. Succession. The officers of the Corporation shall hold
office until their successors are elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the directors. Any vacancy occurring in any
office of the Corporation may be filled by the Board of Directors.
Section 4. Authority and Duties. Each of the officers of the
Corporation shall have such authority and shall perform such duties as are as
are stated in these bylaws and as may be specified from time to
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time by the Board of Directors in a resolution which is not inconsistent with
these bylaws.
Section 5. Chairman. The Chairman of the Board of Directors, if one be
chosen, shall preside at all meetings of the stockholders and of the Board of
Directors and he shall have such other duties and responsibilities as may be
assigned to him by the Board of Directors. The Chairman may delegate to any
qualified person authority to chair any meeting of the stockholders, either on a
temporary or a permanent basis.
Section 6. President. The President shall be responsible for the active
management and direction of the business and affairs of the Corporation. In case
no Chairman of the Board is chosen, or of the inability or failure of the
Chairman to perform the duties of that office, the President shall perform the
duties of the Chairman.
Section 7. Execution of Documents and Action with Respect to Securities
of Other Corporations. The President shall have and is hereby given, full power
and authority, except as otherwise required by law or directed by the Board of
Directors, (a) to execute, on behalf of the Corporation, all duly authorized
contracts, agreements, deeds, conveyances or other obligations of the
Corporation, applications, consents, proxies and other powers of attorney, and
other documents and instruments, and (b) 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 such stockholders) of any other corporation in which
the Corporation may hold securities and otherwise to exercise any and all rights
and powers which the Corporation may possess by reason of its ownership of
securities of such other corporation. In addition, the President may delegate to
other officers, employees and agents of the Corporation the power and authority
to take any action which the President is authorized to take under this Section
7, with such limitations as the President may specify; such authority so
delegated by the President shall not be re-delegated by the person to whom such
execution authority has been delegated.
Section 8. Vice Presidents. Each Vice President, however titled, shall
perform such duties and services and shall have such authority and
responsibilities as shall be assigned to or required from time to time by the
Board of Directors, the President or the
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Executive or Senior Vice President to whom such Vice President reports.
Section 9. Secretary and Assistant Secretaries. (A) The Secretary shall
attend all meetings of the stockholders and all meetings of the Board of
Directors and record all proceedings of the meetings of the stockholders and of
the Board of Directors and shall perform like duties for the standing committees
when requested by the Board of Directors or the President. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and
meetings of the Board of Directors. The Secretary shall perform such other
duties as may be prescribed by the Board of Directors or the President. The
Secretary shall have charge of the seal of the Corporation and authority to
affix the seal to any instrument. The Secretary or any Assistant Secretary may
attest to the corporate seal by handwritten or facsimile signature. The
Secretary shall keep and account for all books, documents, papers and records of
the Corporation except those for which some other officer or agent has been
designated or is otherwise properly accountable. The Secretary shall have
authority to sign stock certificates.
(B) Assistant Secretaries, in the order of their seniority, shall
assist the Secretary and, if the Secretary is unavailable or fails to act,
perform the duties and exercise the authorities of the Secretary.
Section 10. Treasurer and Assistant Treasurers. (A) The Treasurer shall
have the custody of the funds and securities 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
Treasurer with the prior approval of the Board of Directors or the President.
The Treasurer shall disburse the funds and pledge the credit of the Corporation
as may be directed by the Board of Directors and shall render to the Board of
Directors and the President, as and when required by them, or any of them, an
account of all transactions by the Treasurer.
(B) Assistant Treasurers, in the order of their seniority, shall assist
the Treasurer and, if the Treasurer is unable or fails to act, perform the
duties and exercise the powers of the Treasurer.
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Section 11. Chief Financial Officer. The Chief Financial Officer shall
be the chief accounting officer of the Corporation. The Chief Financial Officer
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation in accordance with accepted accounting methods and
procedures. The Chief Financial Officer shall initiate periodic audits of the
accounting records, methods and systems of the Corporation. The Chief Financial
Officer shall render to the Board of Directors and the President, as and when
required by them, or any of them, a statement of the financial condition of the
Corporation. In case no Chief Financial Officer is chosen, or of the inability
of failure of the Chief Financial Officer to perform the duties of that office,
the Treasurer shall perform the duties of the Chief Financial Officer.
Section 12. General Counsel. The General Counsel shall be the chief
legal officer of the Corporation. The General Counsel shall provide legal
counsel and advice to the Board of Directors and to the officers with respect to
compliance with applicable laws and regulations. The General Counsel shall also
provide or obtain legal representation of the Corporation in proceedings by or
against the Corporation. The General Counsel shall render to the Board of
Directors and the President, as and when required by them, or any of them, a
report on the status of claims against, and pending litigation of, the
Corporation.
ARTICLE V
STOCK
Section 1. Certificates. Certificates representing shares of stock of
the Corporation shall be in such form as shall be determined by the Board of
Directors, subject to applicable legal requirements. Such certificates shall be
numbered and their issuance recorded in the books of the Corporation, and such
certificate shall exhibit the holder's name and the number of shares and shall
be signed by, or in the name of the Corporation by the Chairman of the Board or
the President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation and shall bear the corporate seal. Any or
all of the signatures and the seal of the Corporation, if any, upon such
certificates may be facsimiles, engraved or printed.
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Section 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue, or to cause its
transfer agent to issue, a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
Section 3. Lost, Stolen or Destroyed Certificates. The Secretary may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed upon the making of an affidavit of that
fact, satisfactory to the Secretary, by the person claiming the certificate of
stock to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates the Secretary may require the owner of such
lost, stolen or destroyed certificate or certificates to give the Corporation a
bond in such sum and with such surety or sureties as the Secretary may direct as
indemnity against any claims that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of the new certificate.
Section 4. Record Date. (A) In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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(B) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which resolution fixing the record date is adopted by the Board of
Directors and which date shall not be more than ten days which the resolution
fixing the record date is adopted by the Board of Directors. If no record date
has been fixed by the Board of Directors, the record date for determining
stockholders to consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is required, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(C) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
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ARTICLE VI
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
fixed from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may adopt a corporate
seal and use the same by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 3. Reliance upon Books, Reports and Records. Each director,
each member of a committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the records of the Corporation and
upon such information, opinions, reports or statements presented to the
Corporation by any of the Corporation's officers or employees, or committees of
the Board of Directors, or by any other person as to matters the director,
committee member or officer believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation.
Section 4. Time Periods. In applying any provision of these bylaws
which requires that an act be done or not be done 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.
Section 5. Dividends. The Board of Directors may from time to time
declare and the Corporation may pay dividends upon its outstanding shares of
capital stock, in the manner and upon the terms and conditions provided by law
and the Restated Certificate of Incorporation.
ARTICLE VII
AMENDMENTS
Section 1. Amendments. These bylaws may be altered, amended or
repealed, or new bylaws may be adopted, by the stockholders or
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by the Board of Directors; provided, however, that the stockholders may not
alter, amend or repeal the provisions of Section 2 of Article I or Sections 2 or
3 of Article II of these Bylaws or this Section 1 of this Article VII except
upon the affirmative vote of the holders of not less than sixty-six and
two-thirds percent (66 2/3%) of the total voting power of all outstanding shares
of voting stock of the Corporation.
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