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EXHIBIT 3(b)
Form
10-K for 1994
File
No. 1-11237
AT&T CAPITAL CORPORATION
AMENDED AND RESTATED
BY-LAWS
OCTOBER 21, 1994
BY-LAWS
OF
AT&T CAPITAL CORPORATION
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Dover, County of Kent, State
of
Delaware.
Section 2. Other Offices. The Corporation may also have
offices at
such other places both within and without the State of Delaware
as the
Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders
for the
election of directors or for any other purpose shall be held at
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. Each
meeting of the stockholders shall be chaired by the Chairman of
the Board
of Directors or his designee.
Section 2. Annual Meetings. The Annual Meeting 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, at
which meeting the stockholders shall elect by a plurality vote a
Board of
Directors, and transact such other business as may properly be
brought
before the meeting. Written notice of the Annual Meeting stating
the
place, date and hour of the meeting shall be given to each
stockholder
entitled to vote at such meeting not less than ten nor more than
sixty days
before the date of the meeting. Any previously scheduled Annual
Meeting of
Stockholders may be postponed by resolution of the Board of
Directors upon
public notice given on or prior to the date previously scheduled
for such
meeting.
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Section 3. Special Meetings. Unless otherwise prescribed
by law or
by the Restated Certificate of Incorporation of the Corporation
(including
any Certificates of Designation with respect to any Preferred
Stock, the
"Certificate of Incorporation"), Special Meetings of
Stockholders, for any
purpose or purposes, may be called by (i) the Chairman of the
Board of
Directors, (ii) the Chief Executive Officer, (iii) the President,
(iv) the
Secretary or (v) the Chairman of the Executive Committee, and
shall be
called by any such officer at the request in writing of a
majority of the
entire Board of Directors or, so long as (and only so long as)
such request
is received prior to the Trigger Date, of the holders of a
majority of the
then outstanding Common Stock. Such request shall state the
purpose or
purposes of the proposed meeting. Written notice of a Special
Meeting of
Stockholders stating the place, date and hour of the meeting and
the
purpose or purposes for which the meeting is called shall be
given not less
than ten nor more than sixty days before the date of the meeting
to each
stockholder entitled to vote at such meeting. Except as
otherwise required
by law or by the Certificate of Incorporation, no business shall
be
transacted at any Special Meeting of Stockholders other than the
items of
business stated in the notice of meeting. If the Chairman of a
Special
Meeting of Stockholders determines that any business proposed to
be
conducted at such meeting was not properly brought before such
meeting in
accordance with the foregoing procedures, the Chairman shall
declare to
such meeting that such business was not properly brought before
such
meeting, and such business shall not be transacted.
For purposes of these By-Laws:
1. "Trigger Date" shall mean the first date on which AT&T
ceases to
beneficially own (excluding for such purposes shares of Common
Stock
beneficially owned by AT&T but not for its own account, including
(in such
exclusion) beneficial ownership which arises by virtue of some
entity that
is an affiliate of AT&T being a sponsor or advisor of a mutual or
similar
fund that beneficially owns shares of Common Stock) forty percent
or more
of the then outstanding Common Stock and preferred stock entitled
to vote
together with the Common Stock as a single class (collectively,
the "Voting
Stock");
2. "AT&T" shall have the meaning specified in Section D(1)
of
Article FIFTH of the Certificate of Incorporation; and
3. "affiliate" and "beneficial ownership" shall have the
respective
meanings given to such terms in Rules 12b-2 and 13d-3 of the
General Rules
and Regulations under the Securities Exchange Act of 1934, as
amended (the
"Exchange Act"), as in effect at the Filing Time (as defined in
the
Certificate of Incorporation).
Section 4. Quorum. Except as otherwise provided by law or
by the
Certificate of Incorporation, the holders of a majority of the
capital
stock issued and outstanding and entitled to vote thereat,
present in
person or represented by proxy, shall constitute a quorum at all
meetings
of the stockholders for the transaction of business. 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
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or represented by proxy, shall have power to adjourn the meeting
from time
to time, without notice other than announcement at the meeting of
the
place, date and hour of the adjourned meeting, until a quorum
shall be
present or represented. At such adjourned meeting at which a
quorum shall
be present or represented, any business may be transacted which
might have
been transacted at the meeting as originally noticed. If the
adjournment
is for more than thirty days, or if after the adjournment a new
record date
is fixed for the adjourned meeting, a notice of the adjourned
meeting shall
be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the
Certificate
of Incorporation or these By-Laws, any question brought before
any meeting
of stockholders shall be decided by the vote of the holders of a
majority
of the stock represented and entitled to vote thereat. Each
stockholder
represented at a meeting of stockholders shall be entitled to
cast one vote
for each share of the capital stock entitled to vote thereat held
by such
stockholder or such other vote, if any, as shall be set forth in
the
Certificate of Incorporation. Such votes may be cast in person
or by duly
executed proxy but no proxy shall be voted on or after three
years from its
date, unless such proxy provides for a longer period. The Board
of
Directors, in its discretion, or the officer of the Corporation
presiding
at a meeting of stockholders, in his discretion, may require that
any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The
officer of the
Corporation who has charge of the stock ledger of the Corporation
shall
prepare and make, at least ten days before every 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.
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
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 7. Stock Ledger. The stock ledger of the
Corporation shall
be the only evidence as to who are the stockholders entitled to
examine the
stock ledger, the list required by Section 6 of this Article II
or the
books of the Corporation, or to vote in person or by proxy at any
meeting
of stockholders.
Section 8. Nomination of Directors. After the Trigger
Date, only
persons who are nominated in accordance with the following
procedures shall
be eligible for election as directors of the Corporation, except
as may be
otherwise provided in the Certificate of Incorporation with
respect to the
right of holders of preferred stock of the Corporation to
nominate and
elect a specified number of directors in certain circumstances:
Nominations of persons for election to the Board of
Directors may be
made at any annual meeting of stockholders (a) by or at the
direction of
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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
8 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 8.
In addition to any other applicable requirements of (i) the
Exchange
Act and the rules and regulations thereunder, (ii) the General
Corporation
Law of the State of Delaware, (iii) the rules or regulations of
any
national securities exchange or similar body overseeing any
trading of
shares of the Corporation, (iv) the Certificate of Incorporation
or (v)
these By-laws, 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, as set forth below.
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 sixty (60) days nor more than
ninety (90)
days prior to the anniversary date of the immediately preceding
annual
meeting of stockholders; provided, however, that in the event
that the
annual meeting is called for a date that is not within thirty
(30) days
before or after such anniversary date, notice by the stockholder
in order
to be timely must be so received not later than the close of
business on
the tenth (10th) day following the day on which notice of the
date of the
annual meeting was mailed or 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 (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 such person as a director pursuant to Section 14 of
the
Exchange Act and the rules and regulations promulgated thereunder
or any
other applicable laws, rules or regulations (including those of
any
national securities exchange or similar body overseeing any
trading of
shares of the Corporation); 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
detailed
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 annual 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
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accompanied by a written consent of each proposed nominee to
being named as
a nominee and to serve as a director if elected.
After the Trigger Date, 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 8. If the Chairman of an
Annual
Meeting of Stockholders determines that a nomination was not made
in
accordance with the foregoing procedures, the Chairman shall
declare to
such meeting that the nomination was defective and such defective
nomination shall be void for all purposes and shall be
disregarded.
Section 9. Business at Annual Meetings. 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 of Stockholders 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 of Stockholders 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 9
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 9.
In addition to any other applicable requirements of (i) the
Exchange
Act and the rules and regulations thereunder, (ii) the General
Corporation
Law of the State of Delaware, (iii) the rules or regulations of
any
national securities exchange or similar body overseeing any
trading of
shares of the Corporation, (iv) the Certificate of Incorporation
or (v)
these By-laws, for business to be properly brought before an
Annual Meeting
of Stockholders by a stockholder (other than business consisting
of the
election of directors, with respect to which the procedures set
forth in
Section 8 shall be applicable), 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 sixty (60) days nor more than
ninety (90)
days prior to the anniversary date of the immediately preceding
Annual
Meeting of Stockholders; provided, however, that in the event
that the
Annual Meeting of Stockholders is called for a date that is not
within
thirty (30) days before or after such anniversary date, notice by
the
stockholder in order to be timely must be so received not later
than the
close of business on the tenth (10th) day following the day on
which notice
of the date of the Annual Meeting of Stockholders was mailed or
public
disclosure of the date of the Annual Meeting of Stockholders 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 of Stockholders (i) a brief description of the
business
desired to be brought before the Annual Meeting of Stockholders
and the
reasons for conducting such business at such meeting, (ii) the
name and
record address of such stockholder and the name and address of
the
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beneficial owner, if any, on whose behalf the proposal is made,
(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 and such other person or persons in such
business and
(v) a representation that such stockholder intends to appear in
person or
by proxy at such meeting to bring such business before the
meeting.
No business shall be conducted at any Annual Meeting of
Stockholders
except business brought before such meeting in accordance with
the
procedures set forth in this Section 9; provided, however, that
once
business has been properly brought before an Annual Meeting of
Stockholders
in accordance with such procedures, nothing in this Section 9
shall be
deemed to preclude discussion at such meeting by any stockholder
of any
such business. If the Chairman of an Annual Meeting of
Stockholders
determines that business was not properly brought before such
meeting in
accordance with the foregoing procedures, the Chairman shall
declare to
such meeting that the business was not properly brought before
the meeting
and such business shall not be transacted.
Section 10. Inspectors. Prior to any meeting of
stockholders, the
Board of Directors or the Chief Executive Officer shall appoint
one or more
inspectors to act at such meeting and make a written report
thereof and may
designate one or more persons as alternate inspectors to replace
any
inspector who fails to act. If no inspector or alternate is able
to act at
the meeting of stockholders, the person presiding at the meeting
shall
appoint one or more inspectors to act at the meeting. Each
inspector,
before entering upon the discharge of his duties, shall take and
sign an
oath faithfully to execute the duties of inspector with strict
impartiality
and according to the best of his or her ability. The inspectors
shall
ascertain the number of shares outstanding and the voting power
of each,
determine the shares represented at the meeting and (subject to
any
appropriate review) the validity of proxies and ballots, count
all votes
and ballots, determine and retain for a reasonable period a
record of the
disposition of any challenges made to any determination by the
inspectors
and certify their determination of the number of shares
represented at the
meeting and their count of all votes and ballots. The inspectors
may
appoint or retain other persons to assist them in the performance
of their
duties. 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. No ballot, proxy or vote, nor any
revocation
thereof or change thereto, shall be accepted by the inspectors
after the
closing of the polls. In determining the validity and counting
of proxies
and ballots, the inspectors shall be limited to an examination of
the
proxies, any envelopes submitted therewith, any information
provided by a
stockholder who submits a proxy by telegram, cablegram or other
electronic
transmission from which it can be determined that the proxy was
authorized
by the stockholder, ballots and the regular books and records of
the
corporation, and they may also consider other reliable
information for the
limited purpose of reconciling proxies and ballots submitted by
or on
behalf of banks, brokers, their nominees or similar persons which
represent
more votes than the holder of a proxy is authorized by the record
owner to
cast or more votes than the stockholder holds of record. If the
inspectors
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consider other reliable information for such purpose, they shall,
at the
time they make their certification, specify the precise
information
considered by them, including the person or persons from whom
they obtained
the information, when the information was obtained, the means by
which the
information was obtained and the basis for the inspectors' belief
that such
information is accurate and reliable.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of
Directors
shall consist of not less than three nor more than twenty-five
members, the
exact number of which shall be fixed from time to time by
resolution
adopted by the affirmative vote of a majority of the entire Board
of
Directors. Any director may resign at any time by delivering a
written
notice of resignation, signed by such director, to the Board of
Directors
or the Chief Executive Officer. Unless otherwise specified
therein, such
resignation shall take effect upon delivery. Directors need not
be
stockholders.
Section 2. Vacancies. Any vacancy on the Board of
Directors may be
filled in accordance with Section 223 of the General Corporation
Law of the
State of Delaware; provided, however, that after the Trigger
Date,
vacancies and newly created directorships resulting from any
increase in
the authorized number of directors may only be filled by a
majority of the
directors then in office, though less than a quorum, or by a sole
remaining
director, and the directors so chosen shall hold office until the
next
election of directors and until their successors are duly elected
and
qualified, or until their earlier death, resignation or removal.
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 By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors of the
Corporation may
hold meetings, both regular and special, either within or without
the State
of Delaware. Each meeting of the Board of Directors shall be
chaired by
the Chairman of the Board of Directors, who shall be a director
chosen by a
majority of the entire Board, or, in his absence, by the Vice
Chairman of
the Board of Directors, who shall also be a director chosen by a
majority
of the entire Board, or, in their absence, by such director as
shall be
chosen by a majority of the directors in attendance at such
meeting.
Regular meetings of the Board of Directors may be held without
notice at
such time and at such place as may from time to time be
determined by the
Board of Directors. Special meetings of the Board of Directors
may be
called by the Chairman, the Vice Chairman, the Chief Executive
Officer, the
President or any director. Notice thereof stating the place,
date and hour
of the meeting shall be given to each director either by mail not
less than
forty-eight (48) hours before the date of the meeting, by
telephone or
telegram on twenty-four (24) hours' notice, or on such shorter
notice as
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the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically
provided
by law, the Certificate of Incorporation or these By-Laws, at all
meetings
of the Board of Directors, a majority of the entire Board of
Directors
shall constitute a quorum for the transaction of business and the
act of a
majority of the directors present at any meeting at which there
is a quorum
shall be the act of the Board of Directors. If a quorum shall
not be
present at any meeting of the Board of Directors, the directors
present
thereat may adjourn the meeting from time to time, without notice
other
than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions by Consent. Unless otherwise provided
by the
Certificate of Incorporation or these By-Laws, 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, by written
consent of all
the members of the Board of Directors or such committee, as the
case may
be, which consent may be executed in counterparts, and the
writing or
writings are filed with the minutes of proceedings of the Board
of
Directors or such committee.
Section 7. Meetings by Means of Conference Telephone.
Unless
otherwise provided by the Certificate of Incorporation or these
By-Laws,
members of the Board of Directors of the Corporation, 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, and participation in a meeting pursuant to this
Section 7
shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by
resolution
passed by a majority of the entire Board of Directors, designate
one or
more committees, 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 any such committee. In
the
absence or disqualification of a member of a committee, and in
the absence
of a designation by the Board of Directors of an alternate member
to
replace the absent or disqualified member, the member or members
thereof
present at any 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 the place of any
absent or
disqualified member. Any committee, to the extent allowed by law
and
provided in the resolution establishing such committee, 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. Each
committee
shall keep regular minutes and report to the Board of Directors
when
required.
Section 9. Compensation. The directors may be paid their
expenses,
if any, of attendance at each meeting of the Board of Directors
and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors
or a stated salary or retainer as director. No such payment
shall preclude
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any director from serving the Corporation in any other capacity
and
receiving compensation therefor. Members of special or standing
committees
may be allowed like compensation for attending committee meetings
or acting
as chairman of any committee.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall
be chosen
by the Board of Directors and shall be a Chief Executive Officer,
a
President, a Secretary and a Treasurer. The Board of Directors,
in its
discretion, may also choose one or more Vice Presidents,
Assistant
Secretaries, Assistant Treasurers and other officers. Any number
of
offices may be held by the same person, unless otherwise
prohibited by law,
the Certificate of Incorporation or these By-Laws. The officers
of the
Corporation need not be stockholders of the Corporation nor need
such
officers be directors of the Corporation. The Chairman and Vice
Chairman
of the Board of Directors, in such capacity, shall not be
considered
officers of the Corporation.
Section 2. Election. The Board of Directors at its first
meeting
held after each Annual Meeting of Stockholders shall elect the
officers of
the Corporation who shall hold their offices for such terms and
shall
exercise such powers and perform such duties as shall be
determined from
time to time by the Board of Directors; and all officers of the
Corporation
shall hold office until their successors are chosen and
qualified, or until
their earlier death, resignation or removal. Any vacancy
occurring in any
office of the Corporation shall be filled by the Board of
Directors. The
salaries and other compensation of all officers of the
Corporation shall be
fixed from time to time by the Board of Directors or the
appropriate
committee thereof; provided that the Board of Directors or such
committee
may delegate to the Chief Executive Officer (who may further
delegate such
power) the power to fix from time to time the salaries and other
compensation of any officer of the Corporation other than the
Chief
Executive Officer.
Section 3. Voting Securities Owned by the Corporation.
Powers of
attorney, proxies, waivers of notice of meeting, consents and
other
instruments relating to securities owned by the Corporation may
be executed
in the name of and on behalf of the Corporation by the Chief
Executive
Officer, the President or any Vice President and any such officer
may, in
the name of and on behalf of the Corporation, take all such
action as any
such officer may deem advisable to vote in person or by proxy at
any
meeting of security holders of any corporation in which the
Corporation may
own securities and at any such meeting shall possess and may
exercise any
and all rights and powers incident to the ownership of such
securities and
which, as the owner thereof, the Corporation might have exercised
and
possessed if present. The Board of Directors may, by resolution,
from time
to time confer like powers upon any other person or persons.
Section 4. Chief Executive Officer. The Chief Executive
Officer
shall be the chief executive officer of the Corporation, shall
have general
and active supervision, and plenary power, over all the business
and
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affairs of the Corporation, subject to the control of the Board
of
Directors, shall be responsible for the general management and
direction of
all the business and affairs of the Corporation and except where
by law the
signature of the President is required, shall possess the same
power as the
President to execute, in the name and on behalf of the
Corporation, all
bonds, mortgages, contracts and other instruments of the
Corporation which
may be authorized by the Board of Directors. During the absence
or
disability of the President, the Chief Executive Officer shall
exercise all
the powers and discharge all the duties of the President. The
Chief
Executive Officer shall also perform such other duties and may
exercise
such other powers as are incident to his office or as from time
to time may
be assigned to him by these By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to the
control of
the Board of Directors and of the Chief Executive Officer, have
general and
active supervision over all the business and affairs of the
Corporation and
shall see that all orders and resolutions of the Board of
Directors and of
the Chief Executive Officer are carried into effect. At the
request of the
Chief Executive Officer or in his absence or in the event of his
inability
or refusal to act, the President shall perform the duties of the
Chief
Executive Officer and when so acting, shall have all the powers
of and be
subject to all the restrictions upon the Chief Executive Officer.
The
President shall execute, in the name and on behalf of the
Corporation, all
bonds, mortgages, contracts and other instruments of the
Corporation
requiring a seal, under the seal of the Corporation, except where
required
by law to be otherwise signed and executed and except that the
other
officers of the Corporation may sign and execute documents when
so
authorized by these By-Laws, the Board of Directors, the Chief
Executive
Officer or the President. The President also may execute, in the
name and
on behalf of the Corporation, all other bonds, mortgages,
contracts and
other instruments of the Corporation. The President shall also
perform
such other duties and may exercise such other powers as are
incident to his
office or as from time to time may be assigned to him by these
By-Laws or
by the Board of Directors or by the Chief Executive Officer.
Section 6. Vice Presidents. In the absence of the
President or in
the event of his inability or refusal to act, the Vice President
or the
Vice Presidents if there is more than one (in the order
designated by the
Board of Directors) shall perform the duties of the President,
and when so
acting, shall have all the powers of and be subject to all the
restrictions
upon the President. Each Vice President shall perform such other
duties
and have such other powers as the Board of Directors, the Chief
Executive
Officer or the President from time to time may prescribe.
Section 7. Secretary. The Secretary shall attend all
meetings of the
Board of Directors and all meetings of stockholders and record
all the
proceedings thereat in a book or books to be kept for that
purpose; the
Secretary shall also perform like duties for each standing
committee when
required by such committee. The Secretary shall give, or cause
to be
given, notice of all meetings of the stockholders and special
meetings of
the Board of Directors, and shall perform such other duties as
may be
prescribed by the Board of Directors, the Chairman of the Board
of
Directors, the Chief Executive Officer or the President. If the
Secretary
shall be unable or shall refuse to cause to be given notice of
any meeting
of the stockholders or special meeting of the Board of Directors,
and if
11
there be no Assistant Secretary, then the Board of Directors, the
Chairman
of the Board of Directors, the Chief Executive Officer or the
President may
choose another officer to cause such notice to be given. The
Secretary
shall have custody of the seal of the Corporation and the
Secretary or any
Assistant Secretary, if there be one, shall have authority to
affix the
same to any instrument requiring it and when so affixed, it may
be attested
by the signature of the Secretary or by the signature of any such
Assistant
Secretary. The Board of Directors may give general authority to
any other
officer to affix the seal of the Corporation and to attest the
affixing by
his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required
by law to
be kept or filed are properly kept or filed, as the case may be.
In
addition, the Secretary shall, promptly upon receipt of a request
for
indemnification from any director, officer, employee or agent
pursuant to
Section 3 of Article VIII, advise the Board of Directors in
writing of the
receipt of such request.
Section 8. Treasurer. Subject at all times to the control
of the
Board of Directors, the Chief Executive Officer and the
President, the
Treasurer shall have custody of, and be responsible for, the
corporate
funds and securities and shall invest the same in his discretion
and shall
keep full and accurate accounts of receipts and disbursements in
books
belonging to the Corporation and shall deposit all moneys and
other
valuable effects in the name and to the credit of the Corporation
in such
depositories as may be designated by the Board of Directors. The
Treasurer
shall disburse the funds of the Corporation as may be ordered by
the Board
of Directors, taking proper vouchers for such disbursements, and
shall
render to the Chief Executive Officer or the President, and the
Board of
Directors, at its regular meetings, or when the Board of
Directors so
requires, an account of all his transactions as Treasurer and of
the
financial condition of the Corporation. The Treasurer shall
perform such
other duties and have such other powers as the Board of
Directors, the
Chief Executive Officer or the President from time to time may
prescribe.
Section 9. Assistant Secretaries. Except as may be
otherwise
provided in these By-Laws, Assistant Secretaries, if there be
any, shall
perform such duties and have such powers as from time to time may
be
assigned to them by the Board of Directors, the Chief Executive
Officer,
the President, any Vice President, if there be one, or the
Secretary, and
in the absence of the Secretary or in the event of his disability
or
refusal to act, shall perform the duties of the Secretary, and
when so
acting, shall have all the powers of and be subject to all the
restrictions
upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if
there be
any, shall perform such duties and have such powers as from time
to time
may be assigned to them by the Board of Directors, the Chief
Executive
Officer, the President, any Vice President, if there be one, or
the
Treasurer, and in the absence of the Treasurer or in the event of
his
disability or refusal to act, shall perform the duties of the
Treasurer,
and when so acting, shall have all the powers of and be subject
to all the
restrictions upon the Treasurer.
12
Section 11. Other Officers. Such other 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 other officer of the Corporation
the power
to choose such other officers and to prescribe their respective
duties and
powers.
Section 12. Removal and Resignation; Vacancies. Any
officer may be
removed for or without cause at any time by the Board of
Directors. Any
officer may resign at any time by delivering a written notice of
resignation, signed by such officer, to the Board of Directors or
the Chief
Executive Officer. Unless otherwise specified therein, such
resignation
shall take effect upon delivery. Any vacancy occurring in any
office of
the Corporation by death, resignation, removal or otherwise,
shall be
filled by the Board of Directors.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in
the
Corporation shall be entitled to have a certificate signed, in
the name of
the Corporation (i) by the Chief Executive Officer, the President
or a Vice
President and (ii) by the Treasurer or an Assistant Treasurer, or
the
Secretary or an Assistant Secretary of the Corporation,
certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is
countersigned by (i) a
transfer agent other than the Corporation or its employee, or
(ii) a
registrar other than the Corporation or its employee, any other
signature
on the certificate may be facsimile. In case any officer,
transfer agent or
registrar who has signed or whose facsimile signature has been
placed upon
a certificate shall have ceased to be such officer, transfer
agent or
registrar before such certificate is issued, it may be issued by
the
Corporation with the same effect as if he or it were such
officer, transfer
agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may
direct a
new certificate to be issued in place of any certificate
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, 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 his legal
representative, to
advertise the same in such manner as the Board of Directors 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.
Section 4. Transfers. Stock of the Corporation shall be
transferable
in the manner prescribed by law and in these By-Laws. Transfers
of stock
shall be made on the books of the Corporation only by the person
named in
the certificate or by his attorney lawfully constituted in
writing and upon
13
the surrender of the certificate therefor, which shall be
cancelled before
a new certificate shall be issued.
Section 5. Record Date. 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, prior to the Trigger
Date,
entitled to express consent to corporate action in writing
without a
meeting, 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 days
nor less
than ten days before the date of such meeting, nor more than
sixty days
prior to any such other corporate 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.
Section 6. Beneficial Owners. The Corporation shall be
entitled to
recognize the exclusive right of a person registered on its books
as the
owner of shares to receive dividends, and to vote as such owner,
and for
all other purposes, and 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 law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by
law, the
Certificate of Incorporation or these By-Laws to be given to any
director,
member of a committee or stockholder, such notice may be given by
mail,
addressed to such director, member of a committee or stockholder,
at his
address as it appears on the records of the Corporation, with
postage
thereon prepaid, and such notice shall be deemed to be given at
the time
when the same shall be deposited in the United States mail.
Written notice
may also be given personally or by telegram, facsimile, telex,
cable or
nationally recognized overnight courier.
Section 2. Waivers of Notice. Whenever any notice is
required by
law, the Certificate of Incorporation or these By-Laws, to be
given to any
director, member of a committee or stockholder, a waiver thereof
in
writing, signed by the person or persons entitled to said notice,
whether
before or after the time stated therein, and, in the case of a
waiver of
notice of a meeting, whether or not the business to be transacted
at or the
purposes of such meeting is set forth in such waiver, shall be
deemed
equivalent thereto. The attendance of any person at any meeting,
in person
or, in the case of a meeting of stockholders, by proxy, shall
constitute a
waiver of notice of such meeting except where such person attends
such
meeting for the express purpose of objecting at the beginning of
such
meeting to the transaction of any business on the grounds that
such meeting
is not duly called or convened.
14
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of
the
Corporation, subject to the provisions of the Certificate of
Incorporation,
if any, may be declared by the Board of Directors at any regular
or special
meeting, and may be paid in cash, in property, or in shares of
capital
stock. 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 from time to time, in its absolute discretion,
deems
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 any proper purpose, and the Board of Directors may modify
or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money
and notes
of the Corporation shall be signed by such officer or officers or
such
other person or persons as may be provided by these By-laws or as
the Board
of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be
fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed
thereon the name of the Corporation, the year of its organization
and the
words "Corporate Seal--Delaware". The seal may be used by
causing it or a
facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or
Proceedings other
Than Those by or in the Right of the Corporation. Subject to
Section 3 of
this Article VIII, the Corporation shall, to the fullest extent
permitted
by applicable law, indemnify any person who was or is a party to
(or
witness in) or is threatened to be made a party to (or witness
in) any
threatened, pending or completed action, suit or proceeding,
whether civil,
criminal, administrative or investigative (other than an action
or suit by
or in the right of the Corporation) by reason of the fact that he
is or was
or has agreed to become a director or officer of the Corporation,
or is or
was a director or officer of the Corporation serving (or has
agreed to
serve) at the request of the Corporation as a director or
officer,
employee, trustee or agent of or in any other capacity with
respect to
another corporation, partnership, joint venture, trust, employee
benefit
plan or other enterprise (in any of the foregoing capacities, a
"Representative of the Corporation"), or by reason of any action
alleged to
have been taken or omitted in such capacity, and may indemnify
any person
who was or is a party to (or witness in) or is threatened to be
made a
party to (or witness in) any such action, suit or proceeding by
reason of
the fact that he is or was or has agreed to become an employee or
agent of
the Corporation, or is or was serving (or has agreed to serve) at
the
15
request of the Corporation as a Representative of the
Corporation, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in
settlement actually and reasonably incurred by him in connection
with such
action, suit or proceeding and any appeal therefrom, if he acted
in good
faith and in a manner he 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 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 did
not act in good faith and in a manner which he reasonably
believed to be in
or not opposed to the best interests of the Corporation, and,
with respect
to any criminal action or proceeding, have reasonable cause to
believe that
his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or
Proceedings by or
in the Right of the Corporation. Subject to Section 3 of this
Article
VIII, the Corporation shall, to the fullest extent permitted by
applicable
law, indemnify any person who was or is a party to (or witness
in) or is
threatened to be made a party to (or witness in) 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 he is or was or
has agreed
to become a director or officer of the Corporation, or is or was
a director
or officer of the Corporation serving (or has agreed to serve) at
the
request of the Corporation as a Representative of the
Corporation, or by
reason of any action alleged to have been taken or omitted in
such
capacity, and may indemnify any person who was or is a party to
(or witness
in) or is threatened to be made a party to (or witness in) any
such action,
suit or proceeding by reason of the fact that he is or was or has
agreed to
become an employee or agent of the Corporation, or is or was an
employee or
agent of the Corporation serving (or has agreed to serve) at the
request of
the Corporation as a Representative of the Corporation, against
expenses
(including attorneys' fees) actually and reasonably incurred by
him in
connection with the defense or settlement of such action or suit
if he
acted in good faith and in a manner he reasonably believed to be
in or not
opposed to the best interests of the Corporation; 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.
Section 3. Authorization of Indemnification; Procedures.
Any
indemnification under this Article VIII (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 (or
employee
or agent, as the case may be) is proper in the circumstances
because he has
met the applicable standard of conduct set forth in Section 1 or
Section 2
of this Article VIII, as the case may be. A director, officer,
employee or
agent seeking indemnification under this Article VIII shall
submit to the
Secretary of the Corporation a written request including such
documentation
and information as is reasonably available to such director,
officer,
16
employee or agent and reasonably necessary to determine whether
and to what
extent such director, officer, employee or agent is entitled to
indemnification (the "Supporting Documentation"). Such
determination shall
be made not later than 60 calendar days after receipt by the
Corporation of
such request together with the Supporting Documentation (i) by
the Board of
Directors by a majority vote of a quorum consisting of directors
who were
not parties to such action, suit or proceeding, or (ii) if such a
quorum is
not obtainable, or, even if obtainable a quorum of disinterested
directors
so directs, by independent legal counsel in a written opinion, or
(iii) by
majority vote of the stockholders. If no such determination has
been made
within 60 calendar days after receipt by the Corporation of the
request
therefor together with the Supporting Documentation such
director, officer,
employee or agent shall be deemed entitled to indemnification,
unless (x)
such director, officer, employee or agent misrepresented or
failed to
disclose a material fact in making the request for
indemnification or in
the Supporting Documentation or (y) such indemnification is
prohibited by
law. Notwithstanding the foregoing, to the extent that a
director or
officer of the Corporation has been successful on the merits or
otherwise
in defense of any action, suit or proceeding described above, or
in defense
of any claim, issue or matter therein, he shall be indemnified
against
expenses (including attorneys' fees) actually and reasonably
incurred by
him in connection therewith, without the necessity of
authorization in the
specific case. If a determination shall have been made or deemed
to have
been made, pursuant to this Section 3, or pursuant to the
preceding
sentence is not required to be made, that any director, officer,
employee
or agent is entitled to indemnification, the Corporation shall be
obligated
to pay the amounts constituting such indemnification within five
days after
such determination has been made or deemed to have been made and
shall be
conclusively bound by such determination unless (A) such
director, officer,
employee or agent misrepresented or failed to disclose a material
fact in
making the request for indemnification or in the Supporting
Documentation
or (B) such indemnification is prohibited by law. In the event
that (x)
advancement of expenses is not timely made pursuant to Section 6
or (y)
payment of indemnification is not made within five calendar days
after a
determination of entitlement to indemnification has been made or
deemed to
have been made or is not required to be made pursuant to this
Section 3,
such director, officer, employee or agent shall be entitled to
seek
judicial enforcement, in any court of competent jurisdiction, of
the
Corporation's obligations to pay such advancement of expenses or
indemnification. Notwithstanding the foregoing, the Corporation
may bring
an action, in an appropriate court in the State of Delaware or
any other
court of competent jurisdiction, contesting the right of any
director,
officer, employee or agent to receive indemnification hereunder
due to the
occurrence of an event or a condition described in subclause (A)
or (B) of
the second preceding sentence (a "Disqualifying Event");
provided, however,
that in any such action the Corporation shall have the burden of
proving
the occurrence of such Disqualifying Event.
Section 4. Good Faith Defined. For purposes of any
determination
under Section 3 of this Article VIII, a person shall be deemed to
have
acted in good faith and in a manner he reasonably believed to be
in or not
opposed to the best interests of the Corporation, or, with
respect to any
criminal action or proceeding, to have had no reasonable cause to
believe
his conduct was unlawful, if his action is based on the records
or books of
account of the Corporation or another enterprise, or on
information
17
supplied to him by the officers of the Corporation or another
enterprise in
the course of their duties, or on the advice of legal counsel for
the
Corporation or another enterprise or on information or records
given or
reports made to the Corporation or another enterprise by an
independent
certified public accountant or by an appraiser or other expert
selected
with reasonable care by the Corporation or another enterprise,
unless the
Corporation shall sustain the burden of proof that such person
had actual
knowledge that such records, books of account, information,
advice or
reports were incorrect in a material respect. The term "another
enterprise" as used in this Section 4 shall mean any other
corporation or
any partnership, joint venture, trust, employee benefit plan or
other
enterprise of which such person is or was serving at the request
of the
Corporation as a Representative of the Corporation. The
provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any
way the
circumstances in which a person may be deemed to have met the
applicable
standard of conduct set forth in Sections 1 or 2 of this Article
VIII, as
the case may be.
Section 5. Actions for Indemnification. Notwithstanding
any contrary
determination in the specific case under Section 3 of this
Article VIII,
and notwithstanding the absence of any determination thereunder,
any
director or officer shall, after the 60 calendar day period
referred to in
Section 3 of this Article VIII has elapsed, be entitled to seek
an
adjudication of his entitlement to indemnification under this
Article VIII
either, at his sole option, in (i) any court of competent
jurisdiction in
the State of Delaware or (ii) an arbitration to be conducted by a
single
arbitrator pursuant to the then applicable rules of the American
Arbitration Association. The basis of any such indemnification
shall be a
determination by such court or arbitrator that indemnification of
the
director or officer is proper in the circumstances because he has
met the
applicable standards of conduct set forth in Sections 1 or 2 of
this
Article VIII, as the case may be. It shall be a defense to any
such
adjudication (other than an adjudication brought to enforce a
claim for the
advance of costs, charges and expenses under Section 6 of this
Article VIII
where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of
conduct set
forth in Section 1 or 2 of this Article VIII, but the burden of
proving
such defense shall be on the Corporation. Neither a contrary
determination
in the specific case under Section 3 of this Article VIII nor the
absence
of any determination thereunder shall be a defense to such claim
for
indemnification or create a presumption that the director or
officer
seeking indemnification has not met any applicable standard of
conduct.
The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 5
that the
procedures and presumptions of this Article VIII are not valid,
binding and
enforceable and shall stipulate in any such court or before any
such
arbitrator that the Corporation is bound by all the provisions of
this
Article. Notice of any adjudication for indemnification pursuant
to this
Section 5 shall be given to the Corporation promptly upon the
filing of the
application for such adjudication. If successful, in whole or in
part, the
director or officer seeking indemnification shall also be
entitled to be
paid the expense (including attorneys' fees) of prosecuting such
adjudication.
18
Section 6. Expenses Payable in Advance. Expenses
(including
attorneys' fees) incurred by a director or officer in defending
or
investigating any threatened or pending action, suit or
proceeding shall be
paid by the Corporation in advance of the final disposition of
such action,
suit or proceeding within five business days after the receipt by
the
Corporation of a statement or statements from such director or
officer
requesting such advance or advances from time to time. Such
statement or
statements shall reasonably evidence such expenses and shall
include or be
accompanied by an undertaking by or on behalf of such director or
officer
to repay such amount or amounts if it shall ultimately be
determined that
he is not entitled to be indemnified by the Corporation as
authorized in
this Article VIII. Such expenses (including attorneys' fees)
incurred by
other employees and agents of the Corporation may be so paid upon
such
terms and conditions, if any, as the Board of Directors deems
appropriate.
The Board of Directors may authorize the Corporation's counsel to
represent
such Director, officer, employee or agent in any action, suit or
proceeding, whether or not the Corporation is a party to such
action, suit
or proceeding.
Section 7. Nonexclusivity of Indemnification and
Advancement of
Expenses. The indemnification and advancement of expenses
provided by or
granted pursuant to this Article VIII shall not be deemed
exclusive of any
other rights to which those seeking indemnification or
advancement of
expenses may be entitled under the Certificate of Incorporation,
any By-Law, agreement, contract, vote of stockholders or
disinterested directors
or pursuant to the direction (howsoever embodied) of any court of
competent
jurisdiction or otherwise, both as to action in his official
capacity and
as to action in another capacity while holding such office, it
being the
policy of the Corporation that indemnification of the persons
specified in
Sections 1 and 2 of this Article VIII shall be made to the
fullest extent
permitted by law. The provisions of this Article VIII shall not
be deemed
to preclude the indemnification of any person who is not
specified in
Sections 1 or 2 of this Article VIII but whom the Corporation has
the power
or obligation to indemnify under the provisions of the General
Corporation
Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may, to the fullest
extent
permitted by applicable law, purchase and maintain insurance on
behalf of
any person who is or was or has agreed to become a director,
officer,
employee or agent of the Corporation, or is or was a director,
officer,
employee or agent of the Corporation serving at the request of
the
Corporation as a Representative of the Corporation against any
liability
asserted against him and incurred by him in any such capacity, or
arising
out of his status as such, whether or not the Corporation would
have the
power or the obligation to indemnify him against such liability
under the
provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this
Article VIII,
references to "fines" shall include any excise taxes assessed on
or against
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 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 he reasonably
believed to be
19
in the interest of the participants and beneficiaries of an
employee
benefit plan shall be deemed to have acted in a manner "in or not
opposed
to the best interests of the Corporation" as referred to in this
Article
VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses;
Contract Right. The indemnification and advancement of expenses
provided
by, or granted pursuant to, this Article VIII 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.
The indemnification provisions of this Article VIII shall be
deemed to be a
contract between the Corporation and each director, officer,
employee and
agent who serves in any such capacity at any time while these
provisions
are in effect, and any repeal or modification thereof shall not
affect any
right or obligation then existing with respect to any state of
facts then
or previously existing or any action, suit or proceeding
previously or
thereafter brought or threatened based in whole or in part upon
any such
state of facts. Such a "contract right" may not be modified
retroactively
without the consent of such director, officer, employee or agent.
Section 11. Limitation on Indemnification. Notwithstanding
anything
contained in this Article VIII to the contrary, except for
proceedings to
enforce rights to indemnification (which shall be governed by
Section 5
hereof), the Corporation shall not be obligated to indemnify any
director
or officer in connection with a proceeding (or part thereof)
initiated by
such person unless such proceeding (or part thereof) was
authorized or
consented to by the Board of Directors of the Corporation.
Section 12. Severability. If this Article VIII or any
portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction,
then the Corporation shall nevertheless indemnify each director
or officer
and may indemnify each employee or agent of the Corporation as to
costs,
charges and expenses (including attorneys' fees), judgments,
fines and
amounts paid in settlement with respect to any action, suit or
proceeding,
whether civil, criminal, administrative or investigative,
including an
action by or in the right of the Corporation, to the fullest
extent
permitted by any applicable portion of this Article VIII that
shall not
have been invalidated and to the fullest extent permitted by
applicable
law.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. The Board of Directors shall have
the express
power, without a vote of stockholders, to adopt any By-Law, and
to amend,
alter or repeal these By-Laws, except to the extent that these
By-Laws or
the Certificate of Incorporation otherwise provide. The Board of
Directors
may exercise such power upon the affirmative vote of a majority
of the
entire Board of Directors. Stockholders may not adopt any
By-Law, nor
amend, alter or repeal these By-Laws of the Corporation, except
upon the
affirmative vote of the holders of at least a majority of the
votes
entitled to be cast by the holders of all then outstanding shares
of stock
20
of the Corporation entitled to vote generally in the election of
directors,
voting together as a single class.
ARTICLE X
CONSTRUCTION
Section 1. Construction. In the event of any conflict
between the
provisions of these By-Laws as in effect from time to time and
the
provisions of the Certificate of Incorporation of the Corporation
as in
effect from time to time, the provisions of such Certificate of
Incorporation shall be controlling.
Section 2. Entire Board of Directors. As used in this
Article X and
in these By-Laws generally, the term "entire Board of Directors"
means the
total number of directors which the Corporation would have if
there were no
vacancies in the Board of Directors.