AMENDED AND RESTATED
BY-LAWS OF
GENERAL SEMICONDUCTOR, INC.
(hereinafter called the "Corporation")
(As of April 6, 2001)
ARTICLE I
OFFICES
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Section 1. Registered Office. The registered office of the Corporation
within the State of Delaware shall be in the City of Wilmington, County of
New Castle.
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 shall
from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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Section 1. Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at any 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. 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 or in a
duly executed waiver thereof. At such annual meetings, the stockholders
shall elect by a plurality vote the directors standing for election and
transact such other business as may properly be brought before the meeting
in accordance with these Amended and Restated By-Laws.
Section 3. Special Meetings. Special meetings of stockholders, for any
purpose or purposes, unless otherwise prescribed by statute may be called
by the Board of Directors, the Chairman of the Board of Directors, if one
shall have been elected, or the President and shall be called by the
Secretary upon the request in writing of a stockholder or stockholders
holding of record at least a majority of the voting power of the issued and
outstanding shares of capital stock of the Corporation entitled to vote at
such meeting.
Section 4. Notice of Meetings. Except as otherwise expressly required
by statute, written notice of each annual and special meeting of
stockholders stating the date, place 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 to each stockholder of record entitled to vote
thereat not less than ten nor more than sixty days before the date of the
meeting. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice. Notice shall be given
personally or by mail and, if by mail, shall be sent in a postage prepaid
envelope, addressed to the stockholder at such stockholder's address as it
appears on the records of the Corporation. Notice by mail shall be deemed
given at the time when the same shall be deposited in the United States
mail, postage prepaid. Notice of any meeting shall not be required to be
given to any person who attends such meeting, except when such person
attends the meeting in person or by proxy 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, or who,
either before or after the meeting, shall submit a signed written waiver of
notice, in person or by proxy. Neither the business to be transacted at,
nor the purpose of, an annual or special meeting of stockholders need be
specified in any written waiver of notice.
Section 5. Organization. At each meeting of stockholders, the Chairman
of the Board, if one shall have been elected, or, in such person's absence
or if one shall not have been elected, the President, shall act as chairman
of the meeting. The Secretary or, in such person's absence or inability to
act, the person whom the chairman of the meeting shall appoint secretary of
the meeting, shall act as secretary of the meeting and keep the minutes
thereof.
Section 6. Conduct of Business. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct
of discussion as seems to him or her in order. The date and time of the
opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting.
Section 7. Quorum, Adjournments. The holders of a majority of the
voting power of the issued and outstanding shares of capital stock of the
Corporation entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all
meetings of stockholders, except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present
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or represented by proxy at any meeting of 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 by proxy. At such adjourned meeting at which a quorum shall be
present or represented by proxy, any business may be transacted which might
have been transacted at the meeting as originally called. If the
adjournment is for more than thirty days, or, if after adjournment a new
record date is set, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 8. Voting. Except as otherwise provided by statute or the
Certificate of Incorporation and these Amended and Restated By-Laws, each
stockholder of the Corporation shall be entitled at each meeting of
stockholders to one vote for each share of capital stock of the Corporation
standing in such stockholder's name on the record of stockholders of the
Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these Amended and Restated By-Laws as the record date for
the determination of the stockholders who shall be entitled to notice
of and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of
business on the date next preceding the day on which the meeting is
held.
Each stockholder entitled to vote at any meeting of stockholders
may authorize another person or persons to act for such stockholder by a
proxy signed by such stockholder or such stockholder's attorney-in-fact,
but no proxy shall be voted after three years from its date, unless the
proxy provides for a longer period. Any such proxy shall be delivered to
the secretary of the meeting at or prior to the time designated in the
order of business for so delivering such proxies. When a quorum is present
at any meeting, the affirmative vote of the holders of a majority of the
voting power of the capital stock of the Corporation which is entitled to
vote thereon and which is present in person or represented by proxy shall
decide any question brought before such meeting, unless the question is one
upon which by express provision of statute or of the Certificate of
Incorporation or of these Amended and Restated By-Laws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Unless required by statute, or determined by the
chairman of the meeting to be advisable, the vote on any question need not
be by ballot. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by such stockholder's proxy, if there be such proxy.
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Section 9. List of Stockholders Entitled to Vote. At least ten days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered
in the name of each stockholder shall be prepared. 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, town or village
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. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 10. Inspectors. The Board of Directors shall, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed
shall fail to appear or act, the chairman of the meeting shall, or if
inspectors shall not have been appointed, the chairman of the meeting may
appoint one or more inspectors. Each inspector, before entering upon the
discharge of such inspector's duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of such inspector's ability. The
inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right
to vote, count and tabulate all votes, ballots or consents, determine the
results, and do such acts as are proper to conduct the election or vote
with fairness to all stockholders. On request of the chairman of the
meeting, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director
shall act as an inspector of an election of directors. Inspectors need not
be stockholders.
Section 11. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided by statute or in the Certificate of Incorporation, any
action required to be taken or which may be taken at any annual or special
meeting of the stockholders of the Corporation may be taken without a
meeting and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of any
such corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing. Any person seeking to have the stockholders authorize or take
corporate action by written consent shall comply with Article V, Section 7
of these Amended and Restated By-Laws and give written notice to the
Secretary and request the Board of Directors to fix a record date.
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Section 12. Advance Notice Provisions for Election of Directors. Only
persons who are nominated in accordance with the following procedures shall
be eligible for election as directors of the Corporation. Nominations of
persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (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 (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 12 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 12.
In addition to any other applicable requirements, for a nomination to
be made 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
delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting, not less than 60 days
nor more than 90 days prior to the date of the annual meeting; provided,
however, that in the event that less than 70 days' notice or prior public
disclosure of the date of the annual meeting is given or made to
stockholders, notice by the stockholder in order to be timely must be so
received not later than the close of business on the 10th day following the
day on 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; and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than
the close of business on the 10th day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date
of the special meeting was 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 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 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
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
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promulgated thereunder; 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, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and (v)
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 solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to be 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 12. If the chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
Section 13. Advance Notice Provisions for Business to be Transacted at
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 annual meeting by or at the direction
of the Board of Directors (or any duly authorized committee thereof) or (c)
otherwise properly brought before the annual meeting by any stockholder of
the Corporation (i) who is a stockholder of record on the date of the
giving of the notice provided for in this Section 13 and on the record date
for the determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth in this
Section 13.
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
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
date of the annual meeting; provided, however, that in the event that less
than 70 days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, notice by the stockholder in
order to be timely must be so received not later than the close of business
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on the 10th day following the day on 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, a 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 by such
stockholder, (iv) a description of all arrangements or understandings
between such stockholder and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder
and any material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 13, provided, however, that, once
business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 13 shall be deemed to
preclude discussion by any stockholder of any such business. If the
chairman of an annual meeting 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 properly brought before the meeting and such business shall not be
transacted.
ARTICLE III
DIRECTORS
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Section 1. Number, Qualification, Election and Term of Directors.
Subject to the rights, if any, of holders of Preferred Stock of the
Corporation, the Board of Directors shall consist of not less than one (1)
nor more than twenty-one (21) members, the exact number of which shall be
fixed from time to time by affirmative vote of a majority of the entire
Board of Directors. Except as otherwise provided by Section 2 of this
Article III, the directors standing for election shall be elected by a
plurality of the votes cast at annual meetings of stockholders, and each
director so elected shall hold office until such directors' successor shall
have been elected and qualified, or until such directors' death, or until
such directors shall have resigned, or have been removed, as hereinafter
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provided by these By-Laws or the Certificate of Incorporation. Directors
need not be stockholders.
Section 2. Vacancies. Any vacancy in the Board of Directors, whether
arising from death, resignation, removal (with or without cause), an
increase in the number of directors or any other cause, may be filled by
the vote of a majority of the directors then in office, though less than a
quorum, or by the sole remaining director or by the stockholders at the
next annual meeting thereof or at a special meeting thereof. Each director
so elected shall hold office until such director's successor shall have
been elected and qualified.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by
these Amended and Restated By-Laws directed or required to be exercised or
done by the stockholders.
Section 4. Place of Meetings. Meetings of the Board of Directors shall
be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting.
Section 5. Annual Meeting. The annual meeting of the Board of
Directors may be held at such time or place (within or without the State of
Delaware) as shall be specified in a notice thereof given as hereinafter
provided in Section 8 of this Article III.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors
may fix. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at the same hour on the next
succeeding business day.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one shall have
been elected, or by two or more directors of the Corporation or by the
President.
Section 8. Notice of Meetings. Notice of regular meetings of the Board
of Directors need not be given except as otherwise required by law or these
Amended and Restated By-Laws. Notice of each special meeting of the Board
of Directors for which notice shall be required, shall be given by the
Secretary as hereinafter provided in this Section 8, in which notice shall
be stated the time and place of the meeting. Except as otherwise required
by these Amended and Restated By-Laws, such notice need not state the
purposes of such meeting. Notice of any special meeting, and of any regular
or annual meeting for which notice is required, shall be given to each
director at least (a) four hours before the meeting if by telephone or by
being personally delivered or sent by telex, telecopy, or similar means or
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(b) two days before the meeting if delivered by mail to the director's
residence or usual place of business. Such notice shall be deemed to be
delivered when deposited in the United States mail so addressed, with
postage prepaid, or when transmitted if sent by telex, telecopy, or similar
means. Neither the business to be transacted at, nor the purpose of, any
special meeting of the Board of Directors need be specified in the notice
or waiver of notice of such meeting. Any director may waive notice of any
meeting by a writing signed by the director entitled to the notice and
filed with the minutes or corporate records. The attendance at or
participation of the director at a meeting shall constitute waiver of
notice of such meeting, unless the director at the beginning of the meeting
or promptly upon such director's arrival objects to holding the meeting or
transacting business at the meeting.
Section 9. Organization. At each meeting of the Board of Directors,
the Chairman of the Board, if one shall have been elected, or, in the
absence of the Chairman of the Board or if one shall not have been elected,
the President (or, in the President's absence, another director chosen by a
majority of the directors present) shall act as chairman of the meeting and
preside thereat. The Secretary or, in such person's absence, any person
appointed by the chairman shall act as secretary of the meeting and keep
the minutes thereof.
Section 10. Quorum and Manner of Acting. A majority of the entire
Board of Directors shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, and, except as otherwise
expressly required by statute or the Certificate of Incorporation or these
Amended and Restated By-Laws, the affirmative vote of a majority of the
directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors. In the absence of a quorum at any meeting of
the Board of Directors, a majority of the directors present thereat may
adjourn such meeting to another time and place. Notice of the time and
place of any such adjourned meeting shall be given to all of the directors
unless such time and place were announced at the meeting at which the
adjournment was taken, in which case such notice need only be given to the
directors who were not present thereat. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called. The directors shall act
only as a Board and the individual directors shall have no power as such.
Section 11. Action by Consent. Unless restricted by the Certificate of
Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all
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 the proceedings of the Board of Directors or such committee, as
the case may be.
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Section 12. Telephonic Meeting. Unless restricted by the Certificate
of Incorporation, any one or more members of the Board of Directors or any
committee thereof 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. Participation by such means shall constitute presence in
person at a meeting.
Section 13. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or
more committees, including an executive committee, 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 the committee. In the absence of disqualification of any member of a
committee, the member or members present at any meeting and not
disqualified from voting, whether or not such members constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
Each such committee, to the extent provided in the resolution creating
it, 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 may authorize the seal of the Corporation to be affixed to
all papers which require it; provided, however, that no such committee
shall have the power or authority in reference to the following matters:
(a) approving or adopting, or recommending to the stockholders, any action
or matter expressly required by the General Corporation Law of Delaware to
be submitted to stockholders for approval or (b) adopting, amending or
repealing any by-law of the Corporation. Each such committee shall serve at
the pleasure of the Board of Directors and have such name as may be
determined from time to time by resolution adopted by the Board of
Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors.
Section 14. Fees and Compensation. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by the Board of
Directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 15. Resignations. Any director of the Corporation may resign
at any time by giving written notice of such director's resignation to the
Corporation. 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, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make
it effective.
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Section 16. 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 such person's or persons' votes are counted for such purposes if
(a) the material facts as to such person's or persons' relationship or
interest and as to the contract or transaction are disclosed or are known
to the directors or committee who then in good faith authorizes the
contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less
than a quorum, (b) the material facts as to such person's or persons'
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 (c) 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. 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 IV
OFFICERS
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Section 1. General. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a President, one or more Vice
Presidents (including Senior, Executive or other classifications of Vice
Presidents) and a Secretary. The Board of Directors, in its discretion, may
also choose as an officer of the Corporation a Chairman of the Board and a
Vice Chairman of the Board and may choose other officers (including a
Treasurer, one or more Assistant Secretaries and one or more Assistant
Treasurers) as may be necessary or desirable. Such 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 officer of the Corporation the power to
choose such other officers and to proscribe their respective duties and
powers. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these
Amended and Restated By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of
the Board and Vice Chairman of the Board of Directors, need such officers
be directors of the Corporation.
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Section 2. Term. All officers of the Corporation shall hold office
until their successors are chosen and qualified, or until their earlier
resignation or removal. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
Section 3. Resignations. Any officer of the Corporation may resign at
any time by giving written notice of such officer's resignation to the
Corporation. 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, immediately upon receipt. Unless otherwise specified
therein, the acceptance of any such resignation shall not be necessary to
make it effective.
Section 4. Removal. Any officer may be removed at any time by the
Board of Directors with or without cause.
Section 5. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to
time by the Board of Directors. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact that such
officer is also a director of the Corporation.
Section 6. Chairman of the Board. The Chairman of the Board, if one
shall have been elected, shall be a member of the Board, an officer of the
Corporation and, if present, shall preside at each meeting of the Board of
Directors or the stockholders. The Chairman of the Board shall advise and
counsel with the President, and in the President's absence with other
executives of the Corporation, and shall perform such other duties as may
from time to time be assigned to the Chairman of the Board by the Board of
Directors.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
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Section 1. Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the
name of the Corporation by, the Chairman of the Board or a Vice Chairman of
the Board or the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such holder in the
Corporation. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications,
limitations or restriction of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which
the Corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided in Section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements, there
may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each
stockholder who so requests the designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
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Section 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile, engraved or printed. 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 such person was such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors 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. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen, or destroyed certificate or certificates, or the owner's
legal representative, to give the Corporation a bond in such sum as it may
direct sufficient to indemnify it against any claim that may be made
against the Corporation on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new
certificate.
Section 4. Transfers of Stock. 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 a
new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its records; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful
restriction on transfer. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the
entry of transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and the transferee request
the Corporation to do so.
Section 5. Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
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Section 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Amended and
Restated By-Laws, as it may deem expedient concerning the issue, transfer
and registration of certificates for shares of stock of the Corporation.
Section 7. Fixing the Record Date.
--------- ----------------------
(a) Meetings and Certain Other Actions. 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 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 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. 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.
(b) Record Date for Action by Written Consent. 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 the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Any
person seeking to have the stockholders authorize or take corporate action
by written consent shall, by written notice to the Secretary, request the
Board of Directors to fix a record date. The Board of Directors may, within
ten business days after the date on which such a request is received, adopt
a resolution fixing the record date (unless a record date has previously
been fixed by the Board of Directors pursuant to the first sentence of this
Section 7(b)). If no record date has been fixed by the Board of Directors
pursuant to the first sentence of this Section 7(b) or otherwise within ten
business days after the date on which such a request is received, the
record date for determining stockholders entitled to consent to such
corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, 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 the State of Delaware, its principal place of
business, or any officer or agent of the Corporation having custody of the
book in which proceedings of stockholders meetings are recorded, to the
attention of the Secretary. Delivery shall be by hand or by certified or
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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 applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall
be the close of business on the date on which the Board of Directors adopts
the resolution taking such prior action.
(c) Review of Written Consent. In the event of the delivery, in the
manner provided by Section 7(b), to the Corporation of the requisite
written consent or consents to take corporate action and/or any related
revocation or revocations (each such written consent and related revocation
is referred to in this Section 7(c) as a "Consent"), the Secretary shall
provide for the safe-keeping of such Consent and shall conduct such
reasonable investigation as he or she deems necessary or appropriate for
the purpose of ascertaining the validity of the Consent and all matters
incident thereto, including, without limitation, whether stockholders
having the requisite voting power to authorize or take the action specified
in the Consent have given consent; provided, however, that if the corporate
action to which the Consent relates is the election, designation,
appointment, removal or replacement of one or more members of the Board of
Directors, the Secretary shall engage nationally recognized independent
inspectors of elections for the purpose of performing the actions of the
Secretary under this Section 7(c). For the purpose of permitting the
Secretary or the independent inspectors (as the case may be) to perform the
functions under this Section 7(c), no action by written consent without a
meeting shall be effective until such date as the Secretary or the
independent inspectors (as the case may be) certify to the Corporation that
the Consents delivered to the Corporation in accordance with Section 7(c)
represent at least the minimum number of votes that would be necessary to
take the corporate action. Nothing contained in this Section 7(c) shall in
any way be construed to suggest or imply that the Board of Directors or any
stockholder shall not be entitled to contest the validity of any Consent,
whether before or after such investigation or certification by the
Secretary or the independent inspectors (as the case may be), or to take
any other actions including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and the
seeking of injunctive relief in such litigation.
(d) Effectiveness of Written Consent. Every written consent shall bear
the date of signature of each stockholder who signs the written consent and
no written consent shall be effective to take the corporate action referred
to therein unless, within sixty days after the date the earliest dated
written consent was received in accordance with Section 7(b), a written
consent or consents signed by a sufficient number of stockholders to take
such action are delivered to the Corporation in the manner prescribed in
Section 7(b).
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Section 8. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its records as
the owner of shares of stock to receive dividends and to vote as such
owner, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares of stock on the part of any other
person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
ARTICLE VI
INDEMNIFICATION OF OFFICERS AND DIRECTORS
-----------------------------------------
Section 1. General. Each person who was or is made a party or is
threatened to be made a party to or is involved (including, without
limitation, as a witness) in any threatened, pending or completed action,
suit, arbitration, alternative dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative ("Proceeding") brought by reason of the
fact that such person (the "Indemnitee") is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan, whether the basis of such Proceeding is alleged
action in an official capacity as a director or officer or in any other
capacity while serving as such a director or officer, shall be indemnified
and held harmless by the Corporation to the full extent authorized by the
General Corporation Law of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), or by other applicable law as then in effect, against all
expenses, liabilities, losses and claims (including attorneys' fees,
judgments, fines, excise taxes under the Employee Retirement Income
Security Act of 1974, as amended from time to time, penalties and amounts
to be paid in settlement) actually incurred or suffered by such Indemnitee
in connection with such Proceeding (collectively, "Losses").
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Section 2. Derivative Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any Proceeding
brought by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person (also an "Indemnitee") is or
was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan, against Losses actually
incurred or suffered by the Indemnitee in connection with the defense or
settlement of such action or suit if the Indemnitee acted in good faith and
in a manner the Indemnitee reasonably believed to be in or not opposed to
the best interests of the Corporation, provided that no indemnification
shall be made in respect of any claim, issue or matter as to which Delaware
law expressly prohibits such indemnification by reason of an adjudication
of liability of the Indemnitee unless and only to the extent that the Court
of Chancery of the State of Delaware 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,
the Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Indemnification in Certain Cases. Notwithstanding any other
provision of this Article VI, to the extent that an Indemnitee has been
wholly successful on the merits or otherwise in any Proceeding referred to
in Sections 1 or 2 of this Article VI on any claim, issue or matter
therein, the Indemnitee shall be indemnified against Losses actually
incurred or suffered by the Indemnitee in connection therewith. If the
Indemnitee is not wholly successful in such Proceeding but is successful,
on the merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Corporation shall indemnify the
Indemnitee, against Losses actually incurred or suffered by the Indemnitee
in connection with each successfully resolved claim, issue or matter. In
any review or Proceeding to determine such extent of indemnification, the
Corporation shall bear the burden of proving any lack of success and which
amounts sought in indemnity are allocable to claims, issues or matters
which were not successfully resolved. For purposes of this Section 3 and
without limitation, the termination of any such claim, issue or matter by
dismissal with or without prejudice shall be deemed to be a successful
resolution as to such claim, issue or matter.
Section 4. Procedure. (a) Any indemnification under Sections 1 and 2
of this Article VI (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 Indemnitee is proper (except that the right of
the Indemnitee to receive payments pursuant to Section 5 of this Article VI
shall not be subject to this Section 4) in the circumstances because the
Indemnitee has met the applicable standard of conduct. Such determination
shall be made promptly, but in no event later than 60 days after receipt by
the Corporation of the Indemnitee's written request for indemnification.
The Secretary of the Corporation shall, promptly upon receipt of the
Indemnitee's request for indemnification, advise the Board of Directors
that the Indemnitee has made such request for indemnification.
(b) The entitlement of the Indemnitee to indemnification shall be
determined in the specific case (1) by the Board of Directors by a majority
vote of the directors who are not parties to such Proceeding, even though
less than a quorum (the "Disinterested Directors"), or (2) if there are no
Disinterested Directors, or if such Disinterested Directors so direct, by
independent legal counsel, or (3) by the stockholders.
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(c) In the event the determination of entitlement is to be made by
independent legal counsel, such independent legal counsel shall be selected
by the Board of Directors and approved by the Indemnitee. Upon failure of
the Board of Directors to so select such independent legal counsel or upon
failure of the Indemnitee to so approve, such independent legal counsel
shall be selected by the American Arbitration Association in New York, New
York or such other person as such Association shall designate to make such
selection.
(d) If the Board of Directors or independent legal counsel shall have
determined that the Indemnitee is not entitled to indemnification to the
full extent of the Indemnitee's request, the Indemnitee shall have the
right to seek entitlement to indemnification in accordance with the
procedures set forth in Section 6 of this Article VI.
(e) If the person or persons empowered pursuant to Section 4(b) of
this Article VI to make a determination with respect to entitlement to
indemnification shall have failed to make the requested determination
within 60 days after receipt by the Corporation of such request, the
requisite determination of entitlement to indemnification shall be deemed
to have been made and the Indemnitee shall be absolutely entitled to such
indemnification, absent (i) misrepresentation by the Indemnitee of a
material fact in the request for indemnification or (ii) a final judicial
determination that all or any part of such indemnification is expressly
prohibited by law.
(f) The termination of any proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, adversely affect the rights of the Indemnitee to
indemnification hereunder except as may be specifically provided herein, or
create a presumption that the Indemnitee did not act in good faith and in a
manner which the Indemnitee reasonably believed to be in or not opposed to
the best interests of the Corporation or create a presumption that (with
respect to any criminal action or proceeding) the Indemnitee had reasonable
cause to believe that the Indemnitee's conduct was unlawful.
(g) For purposes of any determination of good faith hereunder, the
Indemnitee shall be deemed to have acted in good faith if the Indemnitee's
action is based on the records or books of account of the Corporation or an
affiliate, including financial statements, or on information supplied to
the Indemnitee by the officers of the Corporation or an affiliate in the
course of their duties, or on the advice of legal counsel for the
Corporation or an affiliate or on information or records given or reports
made to the Corporation or an affiliate by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care
to the Corporation or an affiliate. The Corporation shall have the burden
of establishing the absence of good faith. The provisions of this Section
4(g) of this Article VI shall not be deemed to be exclusive or to limit in
any way the other circumstances in which the Indemnitee may be deemed to
have met the applicable standard of conduct set forth in these Amended and
Restated By-Laws.
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(h) The knowledge and/or actions, or failure to act, of any other
director, officer, agent or employee of the Corporation or an affiliate
shall not be imputed to the Indemnitee for purposes of determining the
right to indemnification under these Amended and Restated By-Laws.
Section 5. Advances for Expenses and Costs. All expenses (including
attorneys' fees) incurred by or on behalf of the Indemnitee (or reasonably
expected by the Indemnitee to be incurred by the Indemnitee within three
months) in connection with any Proceeding shall be paid by the Corporation
in advance of the final disposition of such Proceeding within twenty days
after the receipt by the Corporation of a statement or statements from the
Indemnitee requesting from time to time such advance or advances whether or
not a determination to indemnify has been made under Section 4 of this
Article VI. The Indemnitee's entitlement to such advancement of expenses
shall include those incurred in connection with any Proceeding by the
Indemnitee seeking an adjudication or award in arbitration pursuant to
these Amended and Restated By-Laws. The financial ability of an Indemnitee
to repay an advance shall not be a prerequisite to the making of such
advance. Such statement or statements shall reasonably evidence such
expenses incurred (or reasonably expected to be incurred) by the Indemnitee
in connection therewith and shall include or be accompanied by a written
undertaking by or on behalf of the Indemnitee to repay such amount if it
shall ultimately be determined that the Indemnitee is not entitled to be
indemnified therefor pursuant to the terms of this Article VI.
Section 6. Remedies in Cases of Determination Not to Indemnify or to
Advance Expenses. (a) In the event that (i) a determination is made that
the Indemnitee is not entitled to indemnification hereunder, (ii) advances
are not made pursuant to Section 5 of this Article VI or (iii) payment has
not been timely made following a determination of entitlement to
indemnification pursuant to Section 4 of this Article VI, the Indemnitee
shall be entitled to seek a final adjudication either through an
arbitration proceeding or in an appropriate court of the State of Delaware
or any other court of competent jurisdiction of the Indemnitee's
entitlement to such indemnification or advance.
(b) In the event a determination has been made in accordance with the
procedures set forth in Section 4 of this Article VI, in whole or in part,
that the Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration referred to in paragraph (a) of this Section 6
shall be de novo and the Indemnitee shall not be prejudiced by reason of
any such prior determination that the Indemnitee is not entitled to
indemnification, and the Corporation shall bear the burdens of proof
specified in Sections 3 and 4 of this Article VI in such proceeding.
(c) If a determination is made or deemed to have been made pursuant to
the terms of Sections 4 or 6 of this Article VI that the Indemnitee is
entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration in the absence of
(i) a misrepresentation of a material fact by the Indemnitee or (ii) a
final judicial determination that all or any part of such indemnification
is expressly prohibited by law.
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(d) To the extent deemed appropriate by the court, interest shall be
paid by the Corporation to the Indemnitee at a reasonable interest rate for
amounts which the Corporation indemnifies or is obliged to indemnify the
Indemnitee for the period commencing with the date on which the Indemnitee
requested indemnification (or reimbursement or advancement of expenses) and
ending with the date on which such payment is made to the Indemnitee by the
Corporation.
Section 7. Rights Non-Exclusive. The indemnification and advancement
of expenses provided by, or granted pursuant to, the other Sections of
this Article VI shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled
under any law, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official
capacity and as to action in another capacity while holding such office.
Section 8. Insurance. The Corporation shall have power to purchase and
maintain insurance 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,
including service with respect to an employee benefit plan, against any
liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against
such liability under the provisions of this Article VI.
Section 9. Definition of Corporation. For purposes of this Article VI,
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, and 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,
including service with respect to an employee benefit plan, shall stand in
the same position under this Article VI with respect to the resulting or
surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
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Section 10. Other Definitions. For purposes of this Article VI,
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 such person 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 VI.
Section 11. Survival of Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to this Article VI shall, unless
otherwise provided when authorized or ratified, 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. No
amendment, alteration, rescission or replacement of these Amended and
Restated By-Laws or any provision hereof shall be effective as to an
Indemnitee with respect to any action taken or omitted by such Indemnitee
in Indemnitee's position with the Corporation or any other entity which the
Indemnitee is or was serving at the request of the Corporation prior to
such amendment, alteration, rescission or replacement.
Section 12. Indemnification of Employees and Agents of the
Corporation. The Corporation may, by action of the Board of Directors from
time to time, grant rights to indemnification and advancement of expenses
to employees and agents of the Corporation with the same scope and effect
as the provisions of this Article VI with respect to the indemnification of
directors and officers of the Corporation.
Section 13. Savings Clause. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each person entitled to
indemnification under the first paragraph of this Article VI as to all
losses actually and reasonably incurred or suffered by such person and for
which indemnification is available to such person pursuant to this Article
VI to the full extent permitted by any applicable portion of this Article
VI that shall not have been invalidated and to the full extent permitted by
applicable law.
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ARTICLE VII
GENERAL PROVISIONS
------------------
Section 1. Dividends. Subject to the provisions of statute and the
Certificate of Incorporation, dividends upon the shares of capital stock of
the Corporation may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property or in shares of
stock of the Corporation, unless otherwise provided by statute or the
Certificate of Incorporation.
Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of
the Corporation or for such other purpose as the Board of Directors may
think conducive to the interests of the Corporation. The Board of Directors
may modify or abolish any such reserve in the manner in which it was
created.
Section 3. Seal. The seal of the Corporation shall be in such form as
shall be approved by the Board of Directors.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the
Board of Directors.
Section 5. Checks, Notes, Drafts, Etc. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer,
officers, person or persons as from time to time may be designated by the
Board of Directors or by an officer or officers authorized by the Board of
Directors to make such designation.
Section 6. Execution of Contracts, Deeds, Etc. The Board of Directors
may authorize any officer or officers, agent or agents, in the name and on
behalf of the Corporation to enter into or execute and deliver any and all
deeds, bonds, mortgages, contracts and other obligations or instruments,
and such authority may be general or confined to specific instances.
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Section 7. Voting of Stock in Other Corporations. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board
or the President, from time to time, may (or may appoint one or more
attorneys or agents to) cast the votes which the Corporation may be
entitled to cast as a shareholder or otherwise in any other corporation,
any of whose shares or securities may be held by the Corporation, at
meetings of the holders of the shares or other securities of such other
corporation. In the event one or more attorneys or agents are appointed,
the Chairman of the Board or the President may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent. The Chairman of the Board or the President may, or may instruct
the attorneys or agents appointed to, execute or cause to be executed in
the name and on behalf of the Corporation and under its seal or otherwise,
such written proxies, consents, waivers or other instruments as may be
necessary or proper in the circumstances.
ARTICLE VIII
AMENDMENTS
----------
These Amended and Restated By-Laws may be repealed, altered, amended
or rescinded in whole or in part, or new By-Laws may be adopted by either
the affirmative vote of the holders of at least a majority of the voting
power of all of the issued and outstanding shares of capital stock of the
Corporation entitled to vote thereon or by the Board of Directors.
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