EXHIBIT 3.1
AMENDMENT NO. 2 TO
AMENDED AND RESTATED BY-LAWS
-OF-
INTEGRATED TECHNOLOGY USA, INC.
(a Delaware corporation hereinafter called the "Corporation")
Effective as of May 11, 1997
The By-laws of the Corporation, as amended to date, are hereby amended
as follows:
1. Section 2.03 of the Corporation's By-laws is replaced by the
following new Section 2.03:
SECTION 2.03. Special Meetings. Special meetings of the
stockholders may be called at any time by the Board of Directors, the
Chairman of the Board of Directors, the Chief Executive Officer, the
President or the Secretary. Special meetings may not be called by any
other person or persons.
2. The following new Sections 2.07, 2.08 and 2.09 are hereby added to
Article II of the By-laws.
SECTION 2.07. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible
for election as directors; provided, however, that the following
procedures shall not apply to the nomination of persons for election as
directors by vote of any class or series of preferred stock of the
Corporation. Nominations of persons for election to the Board of
Directors of the Corporation at the annual meeting may be made at such
meeting by or at the direction of the Board of Directors, by any
committee appointed by the Board of Directors or by any common
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 2.07. Such nominations, other than those made by
or at the direction of the Board of Directors or by any committee
appointed by the Board of Directors, shall 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 and received at the
principal executive offices of the Corporation not less than 60 days
nor more than 90 days prior to the meeting; provided, however, that in
the event that less than 75 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders and the
meeting is held on a day which is not within five calendar days of the
date on which the prior year's meeting was held, notice by the
stockholder to be timely must be so received not later than the close
of business on the fifteenth day following the day on which such notice
of the date of the
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meeting was mailed or such public disclosure was made, whichever first
occurs; and provided, further, however, that in the case of the 1997
annual meeting of 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 the Corporation files a Report on Form
8-K, pursuant to the Securities Exchange Act of 1934, as amended, that
indicates that this Section 2.07 has been added to the Corporation's
By-Laws. Such stockholder's notice to the Secretary shall set forth (a)
as to each person whom the stockholder proposes to nominate for
election or re-election as a 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, series and
number of shares of capital stock of the Corporation which are
beneficially owned by the person and (v) any other information relating
to the person that is required to be disclosed in solicitations for
proxies for election of directors pursuant to the Rules and Regulations
of the Securities and Exchange Commission under 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 the
stockholder, (ii) the class, series and number of shares of capital
stock of the Corporation which are beneficially owned by the
stockholder and (iii) a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder. Such
notice shall be accompanied by the executed consent of each nominee to
serve as a director if so elected. 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 to serve as a director of the Corporation. No person
shall be eligible for election as a director of the Corporation by the
holders of Common Stock of the Corporation unless nominated in
accordance with the procedures set forth herein. The officer of the
Corporation presiding at an annual meeting shall, if the facts warrant,
determine that a nomination was not made in accordance with the
foregoing procedure and, if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
SECTION 2.08. Advance Notification of Business to be
Transacted at Stockholder Meetings. To be properly brought before the
annual or any special meeting of stockholders, business must be either
(a) specified in the notice of meeting (or any supplement or amendment
thereto) given by or at the direction of the Board of Directors or any
committee appointed by the Board of Directors, (b) otherwise properly
brought before the meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for
business to be properly brought before any annual or special meeting of
stockholders 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 and
received at the principal executive offices of the Corporation not less
than 60 days nor more than 90 days prior to the meeting;
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provided, however, that in the event that less than 75 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders and the meeting is either an annual meeting that is held
on a day which is not within five calendar days of the date on which
the prior year's annual meeting was held or is a special meeting
whenever held, notice by the stockholder to be timely must be so
received not later than the close of business on the fifteenth 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;
provided, further, however, that in the case of the 1997 annual meeting
of 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 the Corporation files a Report on Form 8-K,
pursuant to the Securities Exchange Act of 1934, as amended, that
indicates that this Section 2.08 has been added to the Corporation's
By-Laws. and provided, further, however, that this Section 2.08 shall
not apply to any special meeting of stockholders where only the holders
of one or more classes or series of preferred stock of the Corporation
are entitled to vote. Such stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before
the meeting (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business
at the meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class, series and number of shares
of capital stock of the Corporation which are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such
business.
No business shall be conducted at the annual or any special
meeting of stockholders unless it is properly brought before the
meeting in accordance with the procedures set forth in this Section
2.08, provided, however, that nothing in this Section 2.08 shall be
deemed to preclude discussion by any stockholder of any business
properly brought before the meeting in accordance with the procedures
set forth in this Section 2.08. The officer of the Corporation
presiding at the meeting shall, if the facts warrant, determine that
business was not properly brought before the meeting in accordance with
the provisions of this Section 2.08 and, if he should so determine, he
shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
SECTION 2.09. Compliance with Securities and Exchange Act of
1934. Notwithstanding any other provision of these By-laws, the
Corporation shall be under no obligation to include any stockholder
proposal in its proxy statement materials or otherwise present any such
proposal to stockholders at a special or annual meeting of stockholders
if the Board of Directors reasonably believes that the proponents
thereof have not complied with Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, and the Corporation shall not be required to
include in its proxy statement material to stockholders any stockholder
proposal not required to be
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included in its proxy material to stockholders in accordance with such
Act, rules, or regulations
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