EXHIBIT 3.2
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BYLAWS
OF
LDF, INC.
As Adopted on June 2, 1997
104
TABLE OF CONTENTS
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Page
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01.00 Offices . . . . . . . . . . . . . . . . . . . . . . . . . 106
01.01 Registered Office . . . . . . . . . . . . . . . . . . 106
01.02 Other Offices . . . . . . . . . . . . . . . . . . . . 106
02.00 Meetings of Stockholders . . . . . . . . . . . . . . . . . 106
02.01 Annual Meeting . . . . . . . . . . . . . . . . . . . 106
02.02 Special Meetings . . . . . . . . . . . . . . . . . . 106
02.03 Place of Meetings . . . . . . . . . . . . . . . . . . 106
02.04 Notice of Meetings . . . . . . . . . . . . . . . . . 107
02.05 Stockholder List . . . . . . . . . . . . . . . . . . 107
02.06 Quorum . . . . . . . . . . . . . . . . . . . . . . . 107
02.07 Proxies . . . . . . . . . . . . . . . . . . . . . . . 108
02.08 Voting . . . . . . . . . . . . . . . . . . . . . . . 108
02.09 Voting of Certain Shares . . . . . . . . . . . . . . 108
02.10 Action Without Meeting . . . . . . . . . . . . . . . 108
02.11 Treasury Stock . . . . . . . . . . . . . . . . . . . 109
02.12 Business to be Considered by Stockholders . . . . . . 109
03.00 Directors . . . . . . . . . . . . . . . . . . . . . . . . 110
03.01 Number and Election . . . . . . . . . . . . . . . . . 110
03.02 Resignations and Vacancies . . . . . . . . . . . . . 110
03.03 Nominations for Directors . . . . . . . . . . . . . . 111
03.04 Management of Affairs of Corporation . . . . . . . . 111
03.05 Dividends and Reserves . . . . . . . . . . . . . . . 112
03.06 Regular Meetings . . . . . . . . . . . . . . . . . . 112
03.07 Special Meetings . . . . . . . . . . . . . . . . . . 112
03.08 Notice of Special Meetings . . . . . . . . . . . . . 112
03.09 Quorum . . . . . . . . . . . . . . . . . . . . . . . 112
03.10 Presumption of Assent . . . . . . . . . . . . . . . . 113
03.11 Action Without Meeting . . . . . . . . . . . . . . . 113
03.12 Presiding Officer . . . . . . . . . . . . . . . . . . 113
03.13 Executive Committee . . . . . . . . . . . . . . . . . 113
03.14 Other Committees . . . . . . . . . . . . . . . . . . 114
03.15 Alternates . . . . . . . . . . . . . . . . . . . . . 114
03.16 Quorum and Manner of Acting - Committees . . . . . . 114
03.17 Committee Chairman, Books and Records, Etc. . . . . . 114
03.18 Fees and Compensation of Directors . . . . . . . . . 115
03.19 Reliance Upon Records . . . . . . . . . . . . . . . . 115
04.00 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 115
04.01 Manner of Notice . . . . . . . . . . . . . . . . . . 115
04.02 Waiver of Notice . . . . . . . . . . . . . . . . . . 116
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05.00 Officers . . . . . . . . . . . . . . . . . . . . . . . . . 116
05.01 Offices and Official Positions . . . . . . . . . . . 116
05.02 Election and Term of Office . . . . . . . . . . . . . 116
05.03 Removal and Resignation . . . . . . . . . . . . . . . 117
05.04 Vacancies . . . . . . . . . . . . . . . . . . . . . . 117
05.05 Chairman of the Board . . . . . . . . . . . . . . . . 117
05.06 President . . . . . . . . . . . . . . . . . . . . . . 117
05.07 Vice Presidents . . . . . . . . . . . . . . . . . . . 118
05.08 Secretary . . . . . . . . . . . . . . . . . . . . . . 118
05.09 Treasurer . . . . . . . . . . . . . . . . . . . . . . 119
05.10 Assistant Treasurers and Assistant Secretaries . . . 119
05.11 Salaries . . . . . . . . . . . . . . . . . . . . . . 120
06.00 Divisions . . . . . . . . . . . . . . . . . . . . . . . . 120
06.01 Divisions of the Corporation . . . . . . . . . . . . 120
06.02 Official Positions Within a Division . . . . . . . . 120
07.00 Contracts, Loans, Checks and Deposits . . . . . . . . . . 120
07.01 Contracts and Other Instruments . . . . . . . . . . . 120
07.02 Loans . . . . . . . . . . . . . . . . . . . . . . . . 120
07.03 Checks, Drafts, Etc. . . . . . . . . . . . . . . . . 120
07.04 Deposits . . . . . . . . . . . . . . . . . . . . . . 121
08.00 Certificates of Stock and Their Transfer . . . . . . . . . 121
08.01 Certificates of Stock . . . . . . . . . . . . . . . . 121
08.02 Lost, Stolen or Destroyed Certificates . . . . . . . 121
08.03 Transfers of Stock . . . . . . . . . . . . . . . . . 122
08.04 Restrictions on Transfer . . . . . . . . . . . . . . 122
08.05 No Fractional Share Certificates . . . . . . . . . . 122
08.06 Fixing Record Date . . . . . . . . . . . . . . . . . 123
08.07 Stockholders of Record . . . . . . . . . . . . . . . 123
09.00 Indemnification . . . . . . . . . . . . . . . . . . . . . 123
10.00 General Provisions . . . . . . . . . . . . . . . . . . . . 126
10.01 Fiscal Year . . . . . . . . . . . . . . . . . . . . . 126
10.02 Seal . . . . . . . . . . . . . . . . . . . . . . . . 127
11.00 Amendments . . . . . . . . . . . . . . . . . . . . . . . . 127
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BYLAWS
OF
LDF, INC.
01.00 OFFICES
01.01 REGISTERED OFFICE
The registered office of the corporation in the State of Delaware
shall be located at 1209 Orange Street in the City of Wilmington,
County of New Castle, and the name of its registered agent is The
Corporation Trust Company.
01.02 OTHER OFFICES
The corporation may also have offices at such other places both within
or without the State of Delaware as the Board of Directors may from
time to time determine or the business of the corporation may require.
02.00 MEETINGS OF STOCKHOLDERS
02.01 ANNUAL MEETING
The annual meeting of the stockholders shall be held between the hours
of 10:00 a.m. and 4:00 p.m. on the second Tuesday in April in each
year beginning in 1998, if not a legal holiday, or, if a legal
holiday, then on the next succeeding business day, for the purpose of
electing directors and for the transaction of such other business as
may come before the meeting. If the election of directors shall not
be held on the day hereinbefore designated for the annual meeting, or
at any adjournment thereof, the Board of Directors shall cause such
election to be held at a special meeting of stockholders as soon
thereafter as convenient.
02.02 SPECIAL MEETINGS
Except as otherwise prescribed by statute, special meetings of the
stockholders for any purpose or purposes, may be called and the
location thereof designated by the President, and shall be called and
the location thereof designated by the Secretary pursuant to a
resolution approved by a majority of the entire Board of Directors.
Such request shall state the purposes of the proposed meeting.
02.03 PLACE OF MEETINGS
Each meeting of the stockholders for the election of directors shall
be held at the office of the corporation in Chicago, Illinois, unless
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the Board of Directors shall, by resolution, designate any other
place, within or without the State of Delaware, as the place of such
meeting. Meetings of stockholders for any other purpose may be held
at such place, within or without the State of Delaware, and at such
time as shall be determined pursuant to Section 02.02, SPECIAL
MEETINGS, and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
02.04 NOTICE OF MEETINGS
Written or printed notice stating the place and time of each annual or
special meeting of the stockholders 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 (10) days nor more than sixty (60)
days before the date of the meeting. (See also Section 04.00, NOTICES
and 11.00, AMENDMENTS.)
When a meeting is adjourned to another time or place, no notice of the
adjourned meeting other than an announcement at the meeting need be
given unless the adjournment is for more than thirty (30) days or a
new record date is fixed for the adjourned meeting after such
adjournment.
02.05 STOCKHOLDER LIST
At least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at such meeting,
arranged in alphabetical order, and showing the address of each such
stockholder and the number of shares registered in the name of each
such stockholder, shall be prepared by the Secretary. Such list shall
be open to examination of any stockholder of the corporation during
ordinary business hours, for any purpose germane to the meeting, for a
period of at least ten (10) days prior to the meeting, at the office
of the corporation in Chicago, Illinois, and the list shall be
produced and kept at the time and place of meeting during the whole
time thereof, and subject to the inspection for any purpose germane to
the meeting of any stockholder who may be present.
02.06 QUORUM
The holders of capital stock of the corporation having a majority of
the voting power thereof, present in person or represented by proxy,
shall be requisite for, and shall constitute, a quorum at all meetings
of the stockholders of the corporation for the transaction of
business, except as otherwise provided by statute, the certificate of
incorporation or these bylaws. 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
until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any
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business may be transacted which might have been transacted at the
meeting as originally notified.
02.07 PROXIES
At every meeting of the stockholders, each stockholder having the
right to vote thereat shall be entitled to vote in person or by proxy.
Such proxy shall be appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three (3) years
prior to such meeting, unless such proxy provides for a longer period;
and it shall be filed with the Secretary of the corporation before, or
at the time of, the meeting.
02.08 VOTING
Unless the certificate of incorporation provides otherwise, at every
meeting of stockholders, each stockholder shall be entitled to one (1)
vote for each share of stock of the corporation entitled to vote
thereat and registered in the name of such stockholder on the books of
the corporation on the pertinent record date. When a quorum is
present at any meeting of the stockholders, the vote of the holders of
a majority of the stock having voting power 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 provision of the
statutes, the certificate of incorporation or these bylaws, a
different vote is required, in which case such provision shall govern
and control the decision of such question. If the certificate of
incorporation provides for more or less than one vote for any share on
any matter, every reference in these bylaws to a majority or other
proportion of stock shall refer to such majority or other proportion
of the votes of such stock.
02.09 VOTING OF CERTAIN SHARES
Shares standing in the name of another corporation, domestic or
foreign, and entitled to vote may be voted by such officer, agent, or
proxy as the bylaws of such corporation may prescribe or, in the
absence of such provision, as the Board of Directors of such
corporation may determine. Shares standing in the name of a deceased
person, a minor or an incompetent and entitled to vote may be voted by
his administrator, executor, guardian or conservator, as the case may
be, either in person or by proxy. Shares standing in the name of a
trustee, receiver or pledgee and entitled to vote may be voted by such
trustee, receiver or pledgee either in person or by proxy as provided
by Delaware law.
02.10 ACTION WITHOUT MEETING
No action shall be taken by the stockholders except at an annual
meeting or special meeting of the stockholders.
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02.11 TREASURY STOCK
Shares of its own stock belonging to the corporation or to another
corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held by this
corporation, shall not be voted at any meeting and shall not be
counted in determining the total number of outstanding shares for the
purpose of determining whether a quorum is present. Nothing in this
Section shall be construed to limit the right of this corporation to
vote shares of its own stock held by it in a fiduciary capacity.
02.12 BUSINESS TO BE CONSIDERED BY STOCKHOLDERS
(a) Business to be considered by the stockholders shall be brought
before an annual meeting (i) pursuant to the corporation's notice of
meeting, (ii) by or at the direction of the Board of Directors or
(iii) by any stockholder of the corporation who was a stockholder of
record at the time of giving of notice provided in this Section
02.12(a), who is entitled to vote with respect thereto and who
complies with the notice procedures set forth in this Section
02.12(a). For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the corporation and such
proposed business must otherwise be a proper matter for stockholder
action. To be timely, a stockholder's notice must be delivered to or
mailed to and received by the Secretary at the principal executive
offices of the corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior
to the first anniversary of the preceding year's annual meeting. In
no event shall the public or other announcement of an adjournment of
an annual meeting or the adjournment thereof commence a new time
period for the giving of a stockholder's notice as described above.
Such stockholder's notice to the Secretary shall set forth (i) as to
any business the stockholder proposed to bring before the annual
meeting, (A) a brief description of the business desired to be brought
before the annual meeting, (B) the reasons for conducting such
business at the annual meeting, (C) any material interest in such
business to such stockholder and (D) the beneficial owner, if any, on
whose behalf the proposed is made, and (ii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf
the proposed business is to be brought, (A) the name and address of
such stockholder, as they appear on the corporation's books, and the
name and address of such beneficial owner and (B) the class and number
of shares of the corporation's capital stock that are owned
beneficially and of record by such stockholder and such beneficial
owner.
(b) At any special meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting
pursuant to the corporation's notice of meeting.
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(c) (i) Notwithstanding anything in the bylaws of the corporation to
the contrary, only such business shall be brought before or conducted
at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section
02.12. The officer of the corporation or other person presiding over
the meeting shall, if the facts so warrant, determine and declare to
the meeting that business was not brought before the meeting in
accordance with the provisions of this Section 02.12 and, if he should
so determine, he shall so declare to the meeting and any such business
so determined not to be properly before the meeting shall be
disregarded.
(ii) Notwithstanding the foregoing provisions of this Section 02.12,
if applicable, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations thereunder with respect to the
matters set forth in this Section 02.12. Nothing in this Section
02.12 shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act, if applicable.
03.00 DIRECTORS
03.01 NUMBER AND ELECTION
Except for vacancies filled pursuant to Section 03.02, RESIGNATIONS
AND VACANCIES, the directors shall be elected by the stockholders of
the corporation, and at each election the persons receiving the
greatest number of votes, up to the number of directors then to be
elected, shall be the persons then elected. The election of directors
is subject to any provisions contained in the Certificate of
Incorporation relating thereto, including any provisions for a
classified board. Directors need not be residents of the state of
Delaware or the state of Illinois.
03.02 RESIGNATIONS AND VACANCIES
Any director may resign at any time by giving written notice to the
Board of Directors or to the President. Any such resignation shall
take effect at the date of the receipt of such notice or at any later
time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
Except as otherwise provided in the Certificate of Incorporation, any
vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors or any other
cause, may be filled by the vote of the majority of the remaining
directors, although less than a quorum. Each director so chosen to
fill a vacancy shall hold office until his successor shall have been
elected and shall qualify or until he shall resign or shall have been
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removed. In the event the Certificate of Incorporation shall divide
the directors into classes, any directors chosen by the Board shall
hold office until the next election of the class of which such
directors have been chosen. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
Any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative
vote of the holders of at least 85% of the voting power of all of the
shares of the corporation entitled to vote for the election of
directors.
03.03 NOMINATIONS FOR DIRECTORS
Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Any stockholder desiring to nominate an individual for
election as a director shall so indicate by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the corporation not less than 14 days
prior to any meeting of the stockholders called for the election of
directors, provided, however, that if less than 21 days notice of the
meeting is given to stockholders, such written notice shall be
delivered or mailed, as prescribed, to the Secretary of the
corporation not later than the close of the 7th day following the day
on which notice of the meeting was mailed to stockholders.
Each such stockholder notice hereunder shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of each such nominee, and (iii) the number of shares of capital stock
of the corporation which are beneficially owned by each such nominee;
and in addition evidence of the nominee's willingness to serve shall
also be provided.
03.04 MANAGEMENT OF AFFAIRS OF CORPORATION
The property and business of the corporation shall be managed by its
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 Bylaws
directed or required to be exercised or done by stockholders. In case
the corporation shall transact any business or enter into any contract
with a director, or with any firm of which one or more of its
directors are members, or with any trust, firm, corporation or
association in which any director is a stockholder, director or
officer or otherwise interested, the officers of the corporation and
directors in question shall be severally under the duty of disclosing
all material facts as to their interest to the remaining directors
promptly if and when such interested officers or such interested
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directors in question shall become advised of the circumstances. In
the case of continuing relationships in the normal course of business
such disclosure shall be deemed effective, when once given, as to all
transactions and contracts subsequently entered into.
03.05 DIVIDENDS AND RESERVES
Dividends upon stock of the corporation may be declared by the Board
of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, in shares of stock or
otherwise in the form, and to the extent, permitted by law. The Board
of Directors may set apart, out of any funds of the corporation
available for dividends, a reserve or reserves for working capital or
for any other lawful purpose, and also may abolish any such reserve in
the manner in which it was created.
03.06 REGULAR MEETINGS
An annual meeting of the Board of Directors shall be held, without
other notice than this By-Law, immediately after, and at the same
place as, the annual meeting of the stockholders. The Board of
Directors may provide, by resolution, the time and place, either
within or without the State of Delaware, for the holding of additional
regular meetings without other notice than such resolution.
03.07 SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by the
President and shall be called by the Secretary at the request of any
two directors, to be held at such time and place, either within or
without the State of Delaware, as shall be designated by the call and
specified in the notice of such meeting; and notice thereof shall be
given as provided in Section 03.08, NOTICE OF SPECIAL MEETINGS, of
these Bylaws.
03.08 NOTICE OF SPECIAL MEETINGS
Except as otherwise prescribed by statute, written or actual oral
notice of the time and place of each special meeting of the Board of
Directors shall be given at least two (2) days prior to the time of
holding the meeting or within such shorter period before the meeting
as the person or persons calling such meeting deem appropriate in the
circumstance. Any director may waive notice of any meeting. (See
also Sections 04.00, NOTICES, and 11.00, AMENDMENTS.)
03.09 QUORUM
At each meeting of the Board of Directors, the presence of not less
than a majority of the whole board shall be necessary and sufficient
to 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
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quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or these Bylaws. If a
quorum shall not be present at any meeting of directors, the directors
present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present.
Unless otherwise restricted by the Certificate of Incorporation, any
member of the Board of Directors or of any committee designated by the
Board may participate in a meeting of the directors or 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 participation in a meeting by means of such equipment shall
constitute presence in person at such meeting.
03.10 PRESUMPTION OF ASSENT
Unless otherwise provided by statute, a director of the corporation
who is present at a meeting of the Board of Directors at which action
is taken on any corporate matter shall be presumed to have assented to
the action taken unless his dissent shall be entered in the minutes of
the meeting or unless he shall file his written dissent to such action
with the person acting as Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the corporation immediately after the adjournment
of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
03.11 ACTION WITHOUT MEETING
Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, 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 a written consent thereto is signed by all
members of the board or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the
board or committee.
03.12 PRESIDING OFFICER
The presiding officer at any meeting of the Board of Directors shall
be the Chairman of the Board or, in his absence, the President or, in
his absence, any other director elected chairman by vote of a majority
of the directors present at the meeting.
03.13 EXECUTIVE COMMITTEE
The Board of Directors may, by resolution passed by a majority of the
number of directors fixed by these Bylaws, designate two or more
directors of the corporation to constitute an executive committee,
which, to the extent provided in the resolution and by Delaware law,
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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 may require it.
03.14 OTHER COMMITTEES
The Board of Directors may, by resolution passed by a majority of the
number of directors fixed by these Bylaws, designate such other
committees as it may from time to time determine. Each such committee
shall consist of such number of directors, shall serve for such term
and shall have and may exercise, during intervals between meetings of
the Board of Directors, such duties, functions and powers as the Board
of Directors may from time to time prescribe.
03.15 ALTERNATES
The Board of Directors may from time to time designate from among the
directors alternates to serve on one or more committees as occasion
may require. Whenever a quorum cannot be secured for any meeting of
any committee from among the regular members thereof and designated
alternates, the member or members of such committee present at such
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in place of such absent or
disqualified member.
03.16 QUORUM AND MANNER OF ACTING - COMMITTEES
The presence of a majority of members of any committee shall
constitute a quorum for the transaction of business at any meeting of
such committee, and the act of a majority of those present shall be
necessary for the taking of any action thereat, provided that no
action may be taken by any such committee without the favorable vote
of members of the committee who are not officers or full-time
employees of the corporation at least equal to the favorable vote of
members of such committee who are officers or full-time employees of
the corporation.
03.17 COMMITTEE CHAIRMAN, BOOKS AND RECORDS, ETC.
The chairman of each committee shall be selected from among the
members of the committee by a majority of the committee.
Each committee shall keep a record of its acts and proceedings, and
all actions of each committee shall be reported to the Board of
Directors at its next meeting.
Each committee shall fix its own rules of procedure not inconsistent
with these Bylaws or the resolution of the Board of Directors
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designating such committee and shall meet at such times and places and
upon such call or notice as shall be provided by such rules.
03.18 FEES AND COMPENSATION OF DIRECTORS
Directors shall not receive any stated salary for their services as
such; but, by resolution of the Board of Directors, a fixed fee, with
or without expenses of attendance, may be allowed for attendance at
each regular or special meeting of the board. Members of the board
shall be allowed their reasonable traveling expenses when actually
engaged in the business of the corporation. Members of any committee
may be allowed like fees and expenses for attending committee
meetings. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and
receiving compensation therefor.
03.19 RELIANCE UPON RECORDS
Every director of the corporation, or member of any committee
designated by the Board of Directors pursuant to authority conferred
by Section 03.14, OTHER COMMITTEES, of these Bylaws, shall, in the
performance of his duties, be fully protected in relying in good faith
upon the books of account or reports made to the corporation by any of
its officials, or by an independent certified public accountant, or by
an appraiser selected with reasonable care by the Board of Directors
or by such committee, or in relying in good faith upon other records
of the corporation, including without limiting the generality of the
foregoing, records setting forth or relating to the value and amount
of assets, liabilities and profits of the corporation or any other
facts pertinent to the existence and amount of surplus or other funds
from which dividends might properly be declared or paid or with which
stock of the corporation might lawfully be purchased or redeemed.
04.00 NOTICES
04.01 MANNER OF NOTICE
Whenever under the provisions of the statutes, the Certificate of
Incorporation or these Bylaws notice is required to be given to any
stockholder, director or member of any committee designated by the
Board of Directors, it shall not be construed to require personal
delivery and such notice may be given in writing by depositing it, in
a sealed envelope, in the United States mails, air mail or first
class, postage prepaid, addressed (or by delivering it to a telegraph
company, charges prepaid, for transmission or by facsimile) to such
stockholder, director or member either at the address of such
stockholder, director or member as it appears on the books of the
corporation or, in the case of such a director or member, at his
business address; and such notice shall be deemed to be given at the
time when it is thus deposited in the United States mails (or
delivered to the telegraph company or the facsimile transmission is
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acknowledged). Such requirement for notice shall be deemed satisfied,
except in the case of stockholder meetings with respect to which
written notice is mandatorily required by law, if actual notice is
received orally or in writing by the person entitled thereto as far in
advance of the event with respect to which notice is given as the
minimum notice period required by law or these Bylaws.
04.02 WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions of
the statutes, the Certificate of Incorporation, or these Bylaws, a
waiver thereof in writing signed by the person or persons entitled to
such notice, whether before, at or after the time stated therein,
shall be deemed equivalent thereto. Attendance by 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.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or committee
of directors need be specified in any written waiver of notice unless
so required by statute, the Certificate of Incorporation or these
Bylaws.
05.00 OFFICERS
05.01 OFFICES AND OFFICIAL POSITIONS
The officers of the corporation shall be a President, one or more Vice
Presidents, a Secretary, a Treasurer, and such Assistant Secretaries,
Assistant Treasurers, and other officers as the Board of Directors
shall determine. Any two or more offices may be held by the same
person. None of the officers need be a director, a stockholder of the
corporation or a resident of the State of Delaware. The Board of
Directors may from time to time establish, and abolish, official
positions within the divisions into which the business and operations
of the corporation are divided, pursuant to Section 06.01, DIVISIONS
OF THE CORPORATION, of these Bylaws, and assign titles and duties to
such positions. Those appointed to official positions within
divisions may, but need not, be officers of the corporation. The
Board of Directors shall appoint officers to official positions within
a division and may with or without cause remove from such a position
any person appointed to it. In any event, the authority incident to
an official position within a division shall be limited to acts and
transactions within the scope of the business and operations of such
division.
05.02 ELECTION AND TERM OF OFFICE
The officers of the corporation shall be elected annually by the Board
of Directors at their first meeting held after each regular annual
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meeting of the stockholders. If the election of officers shall not be
held at such meeting of the board, such election shall be held at a
regular or special meeting of the Board of Directors as soon there-
after as may be convenient. Each officer shall hold office until his
successor is elected and qualified or until his death or resignation
or until he shall have been removed in the manner hereinafter
provided.
05.03 REMOVAL AND RESIGNATION
Any officer may be removed, either with or without cause, by a
majority of the directors then in office at any regular or special
meeting of the board; but such removal shall be without prejudice to
the contract rights, if any, of such person so removed. Any officer
may resign at any time by giving written notice to the Board of
Directors, to the President or to the Secretary of the corporation.
Any such resignation shall take effect at the date of the receipt of
such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
05.04 VACANCIES
A vacancy in any office because of death, resignation, removal, or any
other cause may be filled for the unexpired portion of the term by the
Board of Directors.
05.05 CHAIRMAN OF THE BOARD
The Board of Directors may at any time or from time to time elect a
Chairman of the Board from among the directors. The Chairman of the
Board, if there be a Chairman, shall preside at all meetings of the
shareholders and directors, and he shall have such other powers and
duties as the Board of Directors may from time to time prescribe.
05.06 PRESIDENT
The President shall be the Chief Executive Officer of the corporation.
In the absence of the Chairman of the Board, the President shall
preside at all meetings of the stockholders and all meetings of the
Board of Directors. He shall have the overall supervision of the
business of the corporation and shall direct the affairs and policies
of the corporation, subject to such policies and directions as may be
provided by the Board of Directors. He shall have authority to
designate the duties and powers of other officers and delegate special
powers and duties to specified officers, so long as such designation
shall not be inconsistent with the statutes, these Bylaws or action of
the Board of Directors. He shall also have power to execute, and
shall execute, deeds, mortgages, bonds, contracts or other instruments
of the corporation except where required or permitted by law to be
otherwise signed and executed and except where the signing and
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execution thereof shall be expressly delegated by the Board of
Directors or by the President to some other officer or agent of the
corporation. The President may sign with the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer,
certificates for shares of stock of the corporation the issuance of
which shall have been duly authorized by the Board of Directors, and
shall vote, or give a proxy to any other person to vote, all shares of
the stock of any other corporation standing in the name of the
corporation. The President in general shall have all other powers and
shall perform all other duties which are incident to the chief
executive office of a corporation or as may be prescribed by the Board
of Directors from time to time.
05.07 VICE PRESIDENTS
In the absence of the President, or in the event of his inability or
refusal to act, the Vice Presidents in order of their rank as fixed by
the Board of Directors or, if not ranked, the Vice President
designated by the Board of Directors or the President, shall perform
all duties of the President and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the President.
The Vice Presidents shall have such other powers and perform such
other duties, not inconsistent with the statutes, these Bylaws, or
action of the Board of Directors, as from time to time may be
prescribed for them, respectively, by the Board of Directors or the
President. Any Vice President may sign, with the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer,
certificates for shares of stock of the corporation the issuance of
which shall have been duly authorized by the Board of Directors.
05.08 SECRETARY
The Secretary shall: (a) keep the minutes of the meetings of the
stockholders, the Board of Directors and committees of directors, in
one or more books provided for that purpose; (b) see that all notices
are fully given in accordance with the provisions of these Bylaws or
as required by law; (c) have charge of the corporate records and of
the seal of the corporation; (d) affix the seal of the corporation or
a facsimile thereof, or cause it to be affixed, to all certificates
for shares prior to the issue thereof and to all documents the
execution of which on behalf of the corporation under its seal is duly
authorized by the Board of Directors or otherwise in accordance with
the provisions of these bylaws; (e) keep a register of the post office
address of each stockholder, director and committee member which shall
from time to time be furnished to the Secretary by such stockholder,
director or member; (f) sign with the President, or a Vice President,
certificates for shares of stock of the corporation, the issuance of
which shall have been duly authorized by resolution of the Board of
Directors; (g) have general charge of the stock transfer books of the
corporation; and (h) in general, perform all duties incident to the
office of Secretary and such other duties as from time to time may be
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assigned to him by the President or by the Board of Directors. He may
delegate such details of the performance of duties of his office as
may be appropriate in the exercise of reasonable care to one or more
persons in his stead, but shall not thereby be relieved of
responsibility for the performance of such duties.
05.09 TREASURER
The Treasurer shall: (a) be responsible to the Board of Directors for
the receipt, custody and disbursements of all funds and securities of
the corporation; (b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all
such moneys in the name of the corporation in such banks, trust
companies or other depositories as shall from time to time be selected
in accordance with the provisions of Section 07.04, DEPOSITS, of these
Bylaws; (c) disburse the funds of the corporation as ordered by the
Board of Directors or the President or as otherwise required in the
conduct of the business of the corporation; (d) render to the
President or Board of Directors, upon request, an account of all his
transactions as Treasurer and on the financial condition of the
corporation; and (e) in general, perform all the duties incident to
the office of Treasurer and such other duties as from time to time may
be assigned to him by the President, by the Board of Directors or
these Bylaws. He may sign, with the President, or a Vice President,
certificates for shares of stock of the corporation, the issuance of
which shall have been duly authorized by resolution of the Board of
Directors. He may delegate such details of the performance of duties
of his office as may be appropriate in the exercise of reasonable care
to one or more persons in his stead, but shall not thereby be relieved
of responsibility for the performance of such duties. If required by
the Board of Directors, the Treasurer shall give a bond for the
faithful discharge of his duties in such sum, and with such surety or
sureties, as the Board of Directors shall determine.
05.10 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES
The Assistant Treasurers and Assistant Secretaries shall perform all
functions and duties which the Secretary or Treasurer, as the case may
be, may assign or delegate; but such assignment or delegation shall
not relieve the principal officer from the responsibilities and
liabilities of his office. In addition, an assistant secretary or an
assistant treasurer, as thereto authorized by the Board of Directors,
may sign with the President, or a Vice President, certificates for
shares of the corporation, the issuance of which shall have been duly
authorized by resolution of the Board of Directors; and the Assistant
Secretaries and Assistant Treasurers shall, in general, perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or by the Board of Directors. The
Assistant Treasurers shall, if required by the Board of Directors,
give bonds for the faithful discharge of their duties in such sums,
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and with such surety or sureties, as the Board of Directors shall
determine.
05.11 SALARIES
The salaries of the officers shall be fixed from time to time by the
Board of Directors or by such officer as it shall designate for such
purpose or as it shall otherwise direct. No officer shall be
prevented from receiving a salary or other compensation by reason of
the fact that he is also a director of the corporation.
06.00 DIVISIONS
06.01 DIVISIONS OF THE CORPORATION
The Board of Directors shall have the power to create and establish
such operating divisions of the corporation as they may from time to
time deem advisable.
06.02 OFFICIAL POSITIONS WITHIN A DIVISION
The President may appoint individuals, whether or not they are
officers of the corporation, to, and may, with or without cause,
remove them from, official positions established within a division,
but not filled by the Board of Directors. (See also Section 05.01,
OFFICES AND OFFICIAL POSITIONS, of these Bylaws.)
07.00 CONTRACTS, LOANS, CHECKS AND DEPOSITS
07.01 CONTRACTS AND OTHER INSTRUMENTS
The Board of Directors may authorize any officer or officers, agent or
agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, or of any
division thereof, and such authority may be general or confined to
specific instances.
07.02 LOANS
No loans shall be contracted on behalf of the corporation, or any
division thereof, and no evidence of indebtedness shall be issued in
the name of the corporation, or any division thereof, unless
authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
07.03 CHECKS, DRAFTS, ETC.
All checks, demands, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the
corporation, or any division thereof, shall be signed by such officer
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or officers, agent or agents of the corporation; and in such manner,
as shall from time to time be authorized by the Board of Directors.
07.04 DEPOSITS
All funds of the corporation, or any division thereof, not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as
the Board of Directors may select.
08.00 CERTIFICATES OF STOCK AND THEIR TRANSFER
08.01 CERTIFICATES OF STOCK
The certificates of stock of the corporation shall be in such form as
may be determined by the Board of Directors, shall be numbered and
shall be entered in the books of the corporation as they are issued.
They shall exhibit the holder's name and number of shares and shall be
signed by the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. If
any stock certificate is signed (a) by a transfer agent or an
assistant transfer agent or (b) by a transfer clerk acting on behalf
of the corporation and a registrar, the signature of any officer of
the corporation may be facsimile. In case any such officer whose
facsimile signature has thus been used on any such certificate shall
cease to be such officer, whether because of death, resignation or
otherwise, before such certificate has been delivered by the
corporation, such certificate may nevertheless be delivered by the
corporation, as though the person whose facsimile signature has been
used thereon had not ceased to be such officer. All certificates
properly surrendered to the corporation for transfer shall be canceled
and no new certificate shall be issued to evidence transferred shares
until the former certificate for at least a like number of shares
shall have been surrendered and canceled and the corporation
reimbursed for any applicable taxes on the transfer, except that in
the case of a lost, destroyed or mutilated certificate a new one may
be issued therefor upon such terms, and with such indemnity (if any)
to the corporation, as the Board of Directors may prescribe
specifically or in general terms or by delegation to a transfer agent
for the corporation.
08.02 LOST, STOLEN OR DESTROYED CERTIFICATES
The Board of Directors in individual cases, or by general resolution
or by delegation to the transfer agent, 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 by the person claiming the certificate of stock to be lost,
stolen or destroyed. When authorizing such issue of a new certificate
or certificates, the Board of Directors may, in its discretion and as
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a condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificates, or his legal
representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
08.03 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,
and upon payment of applicable taxes with respect to such transfer,
and in compliance with any restrictions on transfer applicable to the
certificate or shares represented thereby of which the corporation
shall have notice and subject to such rules and regulations as the
Board of Directors may from time to time deem advisable concerning the
transfer and registration of certificates for shares of capital stock
of the corporation, the corporation shall issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Transfers of shares shall be made only on
the books of the corporation by the registered holder thereof or by
his attorney or successor duly authorized as evidenced by documents
filed with the Secretary or transfer agent of the corporation.
08.04 RESTRICTIONS ON TRANSFER
Any stockholder may enter into an agreement with other stockholders or
with the corporation providing for reasonable limitation or
restriction on the right of such stockholder to transfer shares of
capital stock of the corporation held by him, including, without
limiting the generality of the foregoing, agreements granting to such
other stockholders or to the corporation the right to purchase for a
given period of time any of such shares on terms equal to terms
offered such stockholders by any third party. Any such limitation or
restriction on the transfer of shares of this corporation may be set
forth on certificates representing shares of capital stock or notice
thereof may be otherwise given to the corporation or the transfer
agent, in which case the corporation or the transfer agent shall not
be required to transfer such shares upon the books of the corporation
without receipt of satisfactory evidence of compliance with the terms
of such limitation or restriction.
08.05 NO FRACTIONAL SHARE CERTIFICATES
Certificates shall not be issued representing fractional shares of
stock.
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08.06 FIXING RECORD DATE
The Board of Directors may fix in advance a date, not exceeding sixty
(60) days, nor less than ten (10) days, preceding the date of any
meeting of stockholders, or the date for the payment of any dividend,
or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, or a
date in connection with obtaining any consent, as a record date for
the determination of the stockholders entitled to notice of, and to
vote at, any such meeting, or adjournment thereof, or entitled to
receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent, and
in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to
notice of, and to vote at, such meeting and any adjournment thereof,
or to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of
the corporation after any such record date fixed as aforesaid.
08.07 STOCKHOLDERS OF RECORD
The corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof and
accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
09.00 INDEMNIFICATION
(a) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that such person is
or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
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did not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his or her conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such person
is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation, and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware
Court of Chancery or such other court shall deem proper.
(c) The Corporation may indemnify any person who is or was an
employee or agent of the Corporation, or is or was an employee or
agent of the Corporation serving at the request of the Corporation as
a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise to the extent
and under the circumstances provided by subsections (a) and (b) of
this Section 09.00 with respect to a person who is or was a director
or officer of the Corporation. To the extent that an employee or
agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this Section 09.00, or in defense of any
claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
09.00 (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of
conduct set forth in subsections (a) and (b) of this Section 09.00.
Such determination shall be made (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (ii) if there are no such directors, or
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if such directors so direct, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Section 09.00. Such expenses
(including attorneys' fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section 09.00 shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, 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.
(g) The Corporation shall have the 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 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 this
Section 09.00 or otherwise.
(h) For purposes of this Section 09.00, 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, shall stand in the same position under this Section 09.00
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.
(i) For purposes of this Section 09.00, references to "other
enterprises" shall include employee benefit plans; references to
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"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 or officer of the Corporation which imposes duties on, or
involves services by, such director or officer 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 Section 09.00.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 09.00 shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
(k) The Delaware Court of Chancery is vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this Section 09.00. The
Delaware Court of Chancery may summarily determine the Corporation's
obligation to advance expenses (including attorneys' fees).
(l) Notwithstanding any other Section of these Bylaws, no amendment,
modification, restatement or repeal of the Bylaws shall limit or
impair in any manner the rights of any person to indemnification or
advancement of expenses under this Section 09.00 in respect of any
action or failure to act occurring prior to such amendment,
modification, restatement or repeal.
(m) The provisions of this Section 09.00 shall be deemed to be a
contract between the Corporation and each person who serves as such
officer or director in any such capacity at any time while this
Section 09.00 and the relevant provisions of the General Corporation
Law of Delaware or other applicable laws, if any, are in effect, and
any repeal or modification of any such law or this Section 09.00 shall
not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in
whole or in part upon any such state of facts.
10.00 GENERAL PROVISIONS
10.01 FISCAL YEAR
The fiscal year of the corporation shall begin on January 1 of each
year and end on December 31 of each year.
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10.02 SEAL
The corporate seal shall have inscribed thereon the name of the
corporation, and the words "CORPORATE SEAL" and "DELAWARE;" and it
shall otherwise be in the form approved by the Board of Directors.
Such seal may be used by causing it, or a facsimile thereof, to be
impressed or affixed or otherwise reproduced.
11.00 AMENDMENTS
Subject to any contrary or limiting provisions contained in the
Certificate of Incorporation, these Bylaws may be amended or repealed,
or new Bylaws may be adopted (a) by the affirmative vote of the
holders of at least 85% of the total voting power of all outstanding
shares of capital stock of the Corporation, or (b) the affirmative
vote of the majority of the Board of Directors at any regular or
special meeting. Any Bylaws adopted or amended by the stockholders
may be amended or repealed by the Board of Directors or the
stockholders.