Exhibit 3(ii)
BYLAWS
OF
AVERY DENNISON CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office.
The registered office of Avery Dennison Corporation (hereinafter called the
"corporation") in the State of Delaware shall be at 2711 Centerville Road, Suite
400, City of Wilmington, County of New Castle, and the name of the registered
agent at that address shall be United States Corporation Company.
Section 2. Principal Office.
The principal executive office for the transaction of the business of the
corporation is hereby fixed and located in Los Angeles County, California. The
board of directors is hereby granted full power and authority to change said
principal executive office from one location to another within or without the
State of California.
Section 3. Other Offices.
The corporation may also have offices at such other places 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.
ARTICLE II
stockholders
Section 1. Place of Meetings.
Meetings of stockholders shall be held at any place within or outside the State
of Delaware designated by the board of directors. In the absence of any such
designation, stockholders' meetings shall be held at the principal executive
office of the corporation.
Section 2. Annual Meetings of Stockholders.
The annual meeting of stockholders shall be held on the last Thursday in April
of each year at 1:30 p.m. of said day, or on such other day, which shall not be
a legal holiday, as shall be determined by the board of directors. Any
previously scheduled annual meeting of stockholders may be postponed by
resolution of the board of directors upon public notice given prior to the date
previously scheduled for such annual meeting of stockholders.
Section 3. Special Meetings.
A special meeting of the stockholders may be called at any time by the board of
directors, or by a majority of the directors or by a committee authorized by the
board to do so. Any previously scheduled special meeting of the stockholders may
be postponed by resolution of the board of directors upon public notice given
prior to the date previously scheduled for such special meeting of the
stockholders.
Section 4. Notice of Stockholders' Meetings.
All notices of meetings of stockholders shall be sent or otherwise given in
accordance with Section 5 of this Article II not less than ten (10) nor more
than sixty (60) days before the date of the meeting being noticed. The notice
shall specify the place, date and hour of the meeting and (i) in case of a
special meeting, the general nature of the business to be transacted, or (ii) in
the case of the annual meeting, those matters which the board of directors, at
the time of giving the notice, intends to present for action by the
stockholders. The notice of any meeting at which directors are to be elected
shall include the name of any nominee or nominees who, at the time of the
notice, management intends to present for election.
Section 5. Manner of Giving Notice; Affidavit of Notice.
Notice of any meeting of stockholders shall be given either personally or by
mail or telegraphic or other written communication, charges prepaid, addressed
to the stockholder at the address of such stockholder appearing on the books of
the corporation or given by the stockholder to the corporation for the purpose
of notice. If no such address appears on the corporation's books or has been so
given, notice shall be deemed to have been given if sent by mail or telegraphic
or other written communication to the corporation's principal executive office,
or if published at least once in a newspaper of general circulation in the
county where such office is located. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting shall be executed by the secretary, assistant secretary or
any transfer agent of the corporation giving such notice, and shall be filed and
maintained in the minute book of the corporation.
Section 6. Quorum.
The presence in person or by proxy of the holders of a majority of the shares
entitled to vote at any meeting of stockholders shall constitute a quorum for
the transaction of business. The stockholders present at a duly called or held
meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum.
Section 7. Adjourned Meeting and Notice Thereof.
Any stockholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the Chairman of the meeting, but
in the absence of a quorum, no other business may be transacted at such meeting,
except as provided in Section 6 of this Article II.
When any meeting of stockholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at a meeting at which the adjournment is
taken, unless a new record date for the adjourned meeting is fixed, or unless
the adjournment is for more than thirty (30) days from the date set for the
original meeting. Notice of any such adjourned meeting, if required, shall be
given to each stockholder of record entitled to vote at the adjourned meeting in
accordance with the provisions of Sections 4 and 5 of this Article II. At any
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
Section 8. Voting.
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 11 of this Article II.
Such vote may be by voice vote or by ballot, at the discretion of the Chairman
of the meeting. Any stockholder entitled to vote on any matter (other than the
election of directors) may vote part of the shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the proposal; but,
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if the stockholder fails to specify the number of shares such stockholder is
voting affirmatively, it will be conclusively presumed that the stockholder's
approving vote is with respect to all shares such stockholder is entitled to
vote. If a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on any matter shall be the act
of the stockholders, unless the vote of a greater number or voting by classes is
required by the Delaware General Corporation Law or the certificate of
incorporation or the certificate of determination of preferences as to any
preferred stock.
At a stockholders' meeting involving the election of directors, no stockholder
shall be entitled to cumulate (i.e., cast for any one or more candidates a
number of votes greater than the number of the stockholder's shares). The
candidates receiving the highest number of votes, up to the number of directors
to be elected, shall be elected.
Section 9. Waiver of Notice or Consent by Absent Stockholders.
The transactions of any meeting of stockholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum be present
either in person or by proxy, and if, either before or after the meeting, each
person entitled to vote, not present in person or by proxy, signs a written
waiver of notice or a consent to the holding of the meeting, or an approval of
the minutes thereof. The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any annual or special meeting of
stockholders. All such waivers, consents or approvals shall be filed with the
corporate records or made part of the minutes of the meeting.
Attendance of a person at a meeting shall also constitute a waiver of notice of
such meeting, except when the person objects, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened, and except that attendance at a meeting is not a waiver of any right
to object to the consideration of matters not included in the notice of the
meeting if such objection is expressly made at the meeting.
Section 10. No Stockholder Action by Written Consent Without a Meeting.
Stockholders may take action only at a regular or special meeting of
stockholders.
Section 11. Record Date for Stockholder Notice and Voting.
For purposes of determining the holders entitled to notice of any meeting or to
vote, the board of directors may fix, in advance, a record date, which shall not
be more than sixty (60) days nor less than ten (10) days prior to the date of
any such meeting, and in such case only stockholders of record on the date so
fixed are entitled to notice and to vote, notwithstanding any transfer of any
shares on the books of the corporation after the record date fixed as aforesaid,
except as otherwise provided in the Delaware General Corporation Law.
If the board of directors does not so fix a record date, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is
held.
Section 12. Proxies.
Every person entitled to vote for directors or on any other matter shall have
the right to do so either in person or by one or more agents authorized by a
written proxy signed by the person and filed with the secretary of the
corporation or by any other means permitted by the Delaware General Corporation
Code (Section 212). A proxy shall be deemed signed if the stockholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or electronic transmission or otherwise) by the stockholder or the
stockholder's attorney in fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it, prior to the vote pursuant thereto, by a
writing delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing the proxy, or (ii) written notice of the death or
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incapacity of the maker of such proxy is received by the corporation before the
vote pursuant thereto is counted; provided, however, that no such proxy shall be
valid after the expiration of eleven (11) months from the date of such proxy,
unless otherwise provided in the proxy.
Section 13. Inspectors of Election; Opening and Closing the Polls.
The board of directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her 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 have the
duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting the date and
time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting.
Section 14. Nomination and Stockholder Business Bylaw.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the board of
directors of the corporation and the proposal of business to
be considered by the stockholders may be made at an annual
meeting of stockholders (a) pursuant to the corporation's
notice of meeting, (b) by or at the direction of the board
of directors or (c) by any stockholder of the corporation
who was a stockholder of record at the time of giving of
notice provided for in this Bylaw, who is entitled to vote
at the meeting and who complies with the notice procedures
set forth in this Bylaw.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause
(c) of paragraph (A) (1) of this Bylaw, the stockholder must
have given timely notice thereof in writing to the secretary
of the corporation and such other business must otherwise be
a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to 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;
provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60
days after such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the close
of business on the 90th day prior to such annual meeting and
not later than the close of business on the later of the
60th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date
of such meeting is first made by the corporation. In no
event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of
a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such
person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including
such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if
elected); (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any
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material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal
is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination
or proposal is made (i) the name and address of such
stockholder, as they appear on the corporation's books, and
of such beneficial owner and (ii) the class and number of
shares of the corporation which are owned beneficially and
of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Bylaw to the contrary, in the event that the
number of directors to be elected to the board of directors
of the corporation is increased and there is no public
announcement by the corporation naming all of the nominees
for director or specifying the size of the increased board
of directors at least 70 days prior to the first anniversary
of the preceding year's annual meeting, a stockholder's
notice required by this Bylaw shall also be considered
timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered
to the secretary at the principal executive offices of the
corporation not later than the close of business on the 10th
day following the day on which such public announcement is
first made b the corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the corporation's notice
of meeting. Nominations of persons for election to the board of
directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the corporation's
notice of meeting (a) by or at the direction of the board of
directors or (b) provided that the board of directors has
determined that directors shall be elected at such meeting, by
any stockholder of the corporation who is a stockholder of record
at the time of giving of notice provided for in this Bylaw, who
shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this Bylaw. In the event the
corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the board of
directors, any such stockholder may nominate a person or persons
(as the case may be), for election to such position(s) as
specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (A) (2) of this Bylaw
shall be delivered to the secretary at the principal executive
offices of the corporation not earlier than the close of business
on the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such
special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and
of the nominees proposed by the board of directors to be elected
at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for
the giving of a stockholder's notice as described above.
(C) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to
serve as directors and only such business shall be conducted
at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set
forth in this Bylaw. Except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, the
chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to
be brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in
this Bylaw and, if any proposed nomination or business is
not in compliance with this Bylaw, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news
service or in a document publicly filed by the corporation
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with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth
in this Bylaw. Nothing in this Bylaw shall be deemed to
affect any rights (i) of stockholders to request inclusion
of proposals in the corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock, if any, to elect directors
under certain circumstances.
ARTICLE III
DIRECTORS
Section 1. Powers.
Subject to the provisions of the Delaware General Corporation Law and any
limitations in the certificate of incorporation and these bylaws relating to
action required to be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
Without prejudice to such general powers, but subject to the same limitations,
it is hereby expressly declared that the directors shall have the power and
authority to:
(a) Select and remove all officers, agents and employees of the
corporation, prescribe such powers and duties for them as may not be
inconsistent with law, the certificate of incorporation or these bylaws,
fix their compensation, and require from them security for faithful
service.
(b) Change the principal executive office or the principal business
office in the State of California from one location to another; cause the
corporation to be qualified to do business in any other state, territory,
dependency, or foreign country and conduct business within or outside the
State of California; designate any place within or without the State of
California for the holding of any stockholders' meeting or meetings,
including annual meetings; adopt, make and use a corporate seal, and
prescribe the forms of certificates of stock, and alter the form of such
seal and of such certificates from time to time as in their judgment they
may deem best, provided that such forms shall at all times comply with
the provisions of law.
(c) Authorize the issuance of shares of stock of the corporation from
time to time, upon such terms as may be lawful, in consideration of money
paid, labor done or services actually rendered, debts or securities
canceled or tangible or intangible property actually received.
(d) Borrow money and incur indebtedness for the purpose of the
corporation, and cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, or other evidences of debt and
securities therefor.
Section 2. Number and Qualification of Directors.
The number of directors of the corporation shall be thirteen (13) until changed
by a bylaw amending this Section 2, duly adopted by the board of directors or by
the stockholders.
Section 3. Election and Term of Office of Directors.
Subject to Section 15 below, one class of the directors shall be elected at each
annual meeting of the stockholders, but if any such annual meeting is not held
or the directors are not elected thereat, the directors may be elected at any
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special meeting of stockholders held for that purpose. All directors shall hold
office until their respective successors are elected. Irrespective of the
provisions of Section 15 of this Article III and of the preceding sentence, a
director shall automatically be retired on the date of the expiration of the
first annual meeting following his 72nd birthday.
Section 4. Vacancies.
Vacancies in the board of directors may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director. Each
director elected to fill a vacancy shall hold office for the remainder of the
term of the person whom he or she succeeds, unless otherwise determined by the
board of directors, and until a successor has been elected and qualified.
A vacancy or vacancies in the board of directors shall be deemed to exist in the
case of the death, retirement, resignation or removal of any director, or if the
board of directors by resolution declares vacant the office of a director who
has been declared of unsound mind by an order of court or convicted of a felony,
or if the authorized number of directors be increased, or if the stockholders
fail at any meeting of stockholders at which any director or directors are
elected, to elect the full authorized number of directors to be voted for at
that meeting.
Any director may resign or voluntarily retire upon giving written notice to the
chairman of the board, the president, the secretary or the board of directors.
Such retirement or resignation shall be effective upon the giving of the notice,
unless the notice specifies a later time for its effectiveness. If such
retirement or resignation is effective at a future time, the board of directors
may elect a successor to take office when the retirement or resignation becomes
effective.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of his term of office. No director
may be removed during his term except for cause.
Section 5. Place of Meetings and Telephonic Meetings.
Regular meetings of the board of directors may be held at any place within or
without the State of Delaware that has been designated from time to time by
resolution of the board. In the absence of such designation, regular meetings
shall be held at the principal executive office of the corporation. Special
meetings of the board shall be held at any place within or without the State of
Delaware that has been designated in the notice of the meeting or, if not stated
in the notice or there is no notice, at the principal executive office of the
corporation. Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in such meeting can hear one another, and all such directors shall
be deemed to be present in person at such meeting.
Section 6. Annual Meetings.
Immediately following each annual meeting of stockholders, the board of
directors shall hold a regular meeting for the purpose of organization, any
desired election of officers and transaction of other business. Notice of this
meeting shall not be required.
Section 7. Other Regular Meetings.
Other regular meetings of the board of directors shall be held at such time as
shall from time to time be determined by the board of directors. Such regular
meetings may be held without notice provided that notice of any change in the
determination of time of such meeting shall be sent to all of the directors.
Notice of a change in the determination of the time shall be given to each
director in the same manner as for special meetings of the board of directors.
Section 8. Special Meetings.
Special meetings of the board of directors for any purpose or purposes may be
called at any time by the chairman of the board or the president or any vice
president or the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered personally
or by telephone to each director or sent by first-class mail or telegram,
charges prepaid, addressed to each director at his or her address as it is shown
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upon the records of the corporation. In case such notice is mailed, it shall be
deposited in the United States mail at least four (4) days prior to the time of
the holding of the meeting. In case such notice is delivered personally, or by
telephone or telegram, it shall be delivered personally, or by telephone or to
the telegraph company at least forty-eight (48) hours prior to the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated to either the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose of the meeting nor
the place if the meeting is to be held at the principal executive office of the
corporation.
Section 9. Quorum.
A majority of the authorized number of directors shall constitute a quorum for
the transaction of business, except to adjourn as hereinafter provided. Every
act or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the board
of directors. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for such
meeting.
Section 10. Waiver of Notice.
The transactions of any meeting of the board of directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice if a quorum be present and if, either before or
after the meeting, each of the directors not present signs a written waiver of
notice, a consent to holding the meeting or an approval of the minutes thereof.
The waiver of notice or consent need not specify the purpose of the meeting. All
such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting. Notice of a meeting shall also be
deemed given to any director who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such director.
Section 11. Adjournment.
A majority of the directors present, whether or not constituting a quorum, may
adjourn any meeting to another time and place.
Section 12. Notice of Adjournment.
Notice of the time and place of an adjourned meeting need not be given, unless
the meeting is adjourned for more than twenty-four (24) hours, in which case
notice of such time and place shall be given prior to the time of the adjourned
meeting, in the manner specified in Section 8 of this Article III, to the
directors who were not present at the time of the adjournment.
Section 13. Action Without Meeting.
Any action required or permitted to be taken by the board of directors may be
taken without a meeting, if all members of the board shall individually or
collectively consent in writing to such action. Such action by written consent
shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent or consents shall be filed with the minutes of
the proceedings of the board.
Section 14. Fees and Compensation of Directors.
Directors and members of committees may receive such compensation, if any, for
their services and such reimbursement of expenses, as may be fixed or determined
by resolution of the board of directors. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee, or otherwise, and receiving
compensation for such services.
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Section 15. Classification of Directors.
The board of directors shall be and is divided into three classes, Class I,
Class II and Class III. The number of directors in each class shall be the whole
number contained in the quotient arrived at by dividing the authorized number of
directors by three, and if a fraction is also contained in such quotient then if
such fraction is one-third (1/3) the extra director shall be a member of Class
III and if the fraction is two-thirds (2/3) one of the extra directors shall be
a member of Class III and the other shall be a member of Class II. Each director
shall serve for a term ending on the date of the third annual meeting following
the annual meeting at which such director was elected.
In the event of any increase or decrease in the authorized number of directors,
(a) each director then serving as such shall nevertheless continue as a director
of the class of which he is a member until the expiration of his current term,
or his prior death, resignation or removal, and (b) the newly created or
eliminated directorships resulting from such increase or decrease shall be
apportioned by the board of directors to such class or classes as shall, so far
as possible, bring the number of directors in the respective classes into
conformity with the formula in this Section 15, as applied to the new authorized
number of directors.
ARTICLE IV
committees
Section 1. Committees of Directors.
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, including an
executive committee, each consisting of two or more directors, to serve at the
pleasure of the board. The board may designate one or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution of the board, shall have all the authority of the board, except with
respect to:
(a) the approval of any action which, under the General Corporation
Law of Delaware, also requires stockholders' approval or approval of the
outstanding shares;
(b) the filling of vacancies on the board of directors or in any
committee;
(c) the fixing of compensation of the directors for serving on the
board or on any committee;
(d) the amendment or repeal of bylaws or the adoption of new bylaws;
(e) the amendment or repeal of any resolution of the board of
directors which by its express terms is not so amendable or repealable;
(f) a distribution to the stockholders of the corporation, except at
a rate or in a periodic amount or within a price range determined by the
board of directors; or
(g) the appointment of any other committees of the board of
directors or the members thereof.
Section 2. Meetings and Action of Committees.
Meetings and action of committees shall be governed by, and held and taken in
accordance with, the provisions of Article III of these bylaws, Sections 5
(place of meetings), 7 (regular meetings), 8 (special meetings and notice), 9
(quorum), 10 (waiver of notice), 11 (adjournment), 12 (notice of adjournment)
and 13 (action without meetings), with such changes in the context of those
bylaws as are necessary to substitute the committee and its members for the
board of directors and its members, except that the time of regular meetings of
committees may be determined by resolution of the board of directors as well as
the committee, special meetings of committees may also be called by resolution
of the board of directors, and notice of special meetings of committees shall
also be given to all alternate members, who shall have the right to attend all
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Page 9 of 18
meetings of the committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the provisions of these
bylaws.
ARTICLE V
OFFICERS
Section 1. Officers.
The officers of the corporation shall be the chairman of the board, the
president, a vice president, a secretary and a treasurer. The corporation may
also have, at the discretion of the board of directors, one or more additional
vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article V. Any number of offices may be held by
the same person.
Section 2. Election of Officers.
The officers of the corporation, except such officers as may be appointed in
accordance with the provisions of Section 3 or Section 5 of this Article V,
shall be chosen annually by the board of directors, and each shall hold his
office until he shall resign or be removed or otherwise disqualified to serve or
his successor shall be elected and qualified.
Section 3. Subordinate Officers, etc.
The board of directors may appoint, and may empower the chairman of the board to
-----
appoint, such other officers as the business of the corporation may require,
each of whom shall hold office for such period, have such authority and perform
such duties as are provided in the bylaws or as the board of directors may from
time to time determine.
Section 4. Removal and Resignation of Officers.
Any officer may be removed, either with or without cause, by the board of
directors, at any regular or special meeting thereof, or, except in case of an
officer chosen by the board of directors, by any officer upon whom such power of
removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to 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.
Section 5. Vacancies in Office.
A vacancy in any office because of death, resignation, removal,
disqualification, or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
Section 6. Chairman of the Board.
The chairman of the board shall be the chief executive officer of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction and control of the business and affairs of the
corporation.
Section 7. President.
The president shall be the chief operating officer of the corporation and shall
exercise and perform such powers and duties with respect to the administration
of the business and affairs of the corporation as may from time to time be
assigned to him by the chairman of the board or by the board of directors, or as
may be prescribed by the bylaws.
Exhibit 3(ii)
Page 10 of 18
Section 8. Vice Presidents.
In the absence or disability of the president, a vice president designated by
the board of directors shall perform all 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. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them
respectively by the board of directors or the bylaws.
Section 9. Secretary.
The secretary shall keep or cause to be kept, at the principal executive office
or such other place as the board of directors may order, a book of minutes of
all meetings and actions of directors, committees of directors and stockholders,
with the time and place of holding, whether regular or special, and, if special,
how authorized, the notice thereof given, the names of those present at
directors' and committee meetings, the number of shares present or represented
at stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office
or at the office of the corporation's transfer agent or registrar, as determined
by resolution of the board of directors, a stock register, or a duplicate
register, showing the names of all stockholders and their addresses, the number
and classes of shares held by each, the number and date of certificates issued
for the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the
stockholders and of the board of directors required by the bylaws or by law to
be given, and he shall keep the seal of the corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or by the bylaws.
Section 10. Treasurer.
The treasurer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings
and shares. The books of account shall be open at all reasonable times to
inspection by any director.
The treasurer shall deposit all monies and other valuables in the name and to
the credit of the corporation with such depositories as may be designated by the
board of directors. He shall disburse the funds of the corporation as may be
ordered by the board of directors, shall render to the chairman of the board and
directors, whenever they request it, an account of all of his transactions as
treasurer and of the financial condition of the corporation, and shall have
other powers and perform such other duties as may be prescribed by the board of
directors or the bylaws.
Section 11. Assistant Secretaries and Assistant Treasurers.
Any assistant secretary may perform any act within the power of the secretary,
and any assistant treasurer may perform any act within the power of the
treasurer, subject to any limitations which may be imposed in these bylaws or in
board resolutions.
Exhibit 3(ii)
Page 11 of 18
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. Indemnification and Insurance.
(A) Each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit, or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she or a person of whom he or she is the legal representative is
or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans maintained or sponsored
by the Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee of agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, liability and loss (including
attorneys' fees, judgements, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that except as provided in paragraph (C) of this Bylaw, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this Bylaw shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Bylaw or otherwise.
(B) To obtain indemnification under this Bylaw, a claimant shall submit to the
Corporation a written request, including therein or therewith such documentation
and information as is reasonably available to the claimant and reasonably
necessary to determine whether and to what extent the claimant is entitled to
indemnification. Upon written request by a claimant for indemnification pursuant
to the first sentence of this paragraph (B), a determination, if required by
applicable law, with respect to the claimant's entitlement thereto shall be made
as follows: (1) if requested by the claimant, by Independent Counsel (as
hereinafter defined), or (2) if no request is made by the claimant for a
determination by Independent Counsel, (i) by the Board of Directors by a
majority vote of a quorum consisting of Disinterested Directors (as hereinafter
defined), or (ii) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtained or even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to the claimant,
or (iii) if a quorum of Disinterested Directors so directs, by the stockholders
of the Corporation. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification is
claimed a "Change of Control" as defined in the 1996 Stock Incentive Plan, in
Exhibit 3(ii)
Page 12 of 18
which case the Independent Counsel shall be selected by the claimant unless the
claimant shall request that such selection be made by the Board of Directors. If
it is so determined that the claimant is entitled to indemnification, payment to
the claimant shall be made within 10 days after such determination.
(C) If a claim under paragraph (A) of this Bylaw is not paid in full by the
Corporation within 30 days after a written claim pursuant to paragraph (B) of
this Bylaw has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim, including attorney's
fees. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to paragraph (B) of this
Bylaw that the claimant is entitled to indemnification, the Corporation shall be
bound by such determination in any judicial proceeding commenced pursuant to
paragraph (C) of this Bylaw.
(E) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to paragraph (C) of this Bylaw that the procedures
and presumptions of this Bylaw are not valid, binding and enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the provisions
of this Bylaw.
(F) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Bylaw shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Bylaw shall in any way
diminish or adversely affect the rights of any director, officer, employee or
agent of the Corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
General Corporation Law of the State of Delaware. To the extent that the
Corporation maintains any policy or policies providing such insurance, each such
director or officer, and each such agent or employee to which rights to
indemnification have been granted as provided in paragraph (H) of this Bylaw,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to time by the
Board of Directors or the Chief Executive Officer, grant rights to
indemnification, and rights to be paid by the Corporation the expenses incurred
in defending any proceeding in advance of its final disposition, to any employee
or agent of the Corporation to the fullest extent of the provisions of this
Bylaw with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
Exhibit 3(ii)
Page 13 of 18
(I) If any provision or provisions of this Bylaw shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (1) the validity, legality
and enforceability of the remaining provisions of this Bylaw (including, without
limitation, each portion of any paragraph of this Bylaw containing any such
provisions held to be invalid, illegal or unenforceable, that is not itself held
to be invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (2) to the fullest extent possible, the provisions of this
Bylaw (including, without limitation, each such portion of any paragraph of this
Bylaw containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
(J) For purposes of this Bylaw:
(1) "Disinterested Director" means a director of the Corporation who is not
and was not a party to the matter in respect of which indemnification is sought
by the claimant.
(2) "Independent Counsel" means a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the Corporation or the claimant in an action to determine the claimant's
rights under this Bylaw.
(K) Any notice, request or other communication required or permitted to be
given to the Corporation under this Bylaw shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and shall be effective
only upon receipt by the Secretary.
Section 2. Fiduciaries of Corporate Employee Benefit Plan.
This Article VI does not apply to any proceeding against any trustee,
investment manager or other fiduciary of an employee benefit plan in such
person's capacity as such, even though such person may also be an agent of the
corporation as defined in Section 1 of this Article VI. Nothing contained in
this Article VI shall limit any right to indemnification to which such a
trustee, investment manager or other fiduciary may be entitled by contract or
otherwise, which shall be enforceable to the extent permitted by Section 410 of
the Employee Retirement Income Security Act of 1974, as amended, other than this
Article VI.
ARTICLE VII
RECORDS AND REPORTS
Section 1. Maintenance and Inspection of Stock Register.
The corporation shall keep at its principal executive office, or at the office
of its transfer agent or registrar, if either be appointed, and as determined by
resolution of the board of directors, a record of its stockholders, giving the
names and addresses of all stockholders and the number and class of shares held
by each stockholder.
A stockholder or stockholders of the corporation holding at least five percent
(5%) in the aggregate of the outstanding voting shares of the corporation may
(i) inspect and copy the records of stockholders' names and addresses and
stockholders during usual business hours upon five days prior written demand
upon the corporation, and/or (ii) obtain from the transfer agent of the
corporation, upon written demand and upon the tender of such transfer agent's
usual charges for such list, a list of the stockholders' names and addresses,
who are entitled to vote for the election of directors, and their shareholdings
as of the most recent record date for which such list has been compiled or as of
a date specified by the stockholder subsequent to the date of demand. Such list
shall be made available to such stockholder or stockholders by the transfer
Exhibit 3(ii)
Page 14 of 18
agent on or before the later of five (5) days after the demand is received or
the date specified therein as the date as of which the list is to be compiled.
The record of stockholders shall be open to inspection upon the written demand
of any stockholder or holder of a voting trust certificate, at any time during
usual business hours, for a purpose reasonably related to such holder's
interests as a stockholder or as the holder of a voting trust certificate. Any
inspection and copying under this Section 1 may be made in person or by an agent
or attorney of the stockholder or holder of a voting trust certificate making
such demand.
Section 2. Maintenance and Inspection of Bylaws.
The corporation shall keep at its principal executive office the original or a
copy of the bylaws as amended to date, which shall be open to inspection by the
stockholders at all reasonable times during office hours.
Section 3. Maintenance and Inspection of Other Corporate Records.
The accounting books and records and minutes of proceedings of the stockholders
and the board of directors and any committee or committees of the board of
directors shall be kept at such place or places designated by the board of
directors, or, in the absence of such designation, at the principal executive
office of the corporation. The minutes shall be kept in written form and the
accounting books and records shall be kept either in written form or in any
other form capable of being converted into written form. Such minutes and
accounting books and records shall be open to inspection upon the written demand
of any stockholder or holder of a voting trust certificate, at any reasonable
time during usual business hours, for a purpose reasonably related to such
holder's interests as a stockholder or as a holder of a voting trust
certificate. Such inspection may be made in person or by an agent or attorney,
and shall include the right to copy and make extracts. The foregoing rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
Section 4. Inspection by Directors.
Every director shall have the absolute right at any reasonable time to inspect
all books, records and documents of every kind and the physical properties of
the corporation and each of its subsidiary corporations. Such inspection by a
director may be made in person or by agent or attorney and the right of
inspection includes the right to copy and make extracts.
Section 5. Annual Report to Stockholders.
The board of directors shall cause an annual report to be sent to the
stockholders not later than one hundred twenty (120) days after the close of the
fiscal year adopted by the corporation. Such report shall be sent at least
fifteen (15) days prior to the annual meeting of stockholders to be held during
the next fiscal year and in the manner specified in Section 5 of Article II of
these bylaws for giving notice to stockholders of the corporation. The annual
report shall contain a balance sheet and statement of changes in financial
position for such fiscal year, accompanied by any report thereon of independent
accountants.
Section 6. Financial Statements.
A copy of any annual financial statement and any income statement of the
corporation for each quarterly period of each fiscal year, and any accompanying
balance sheet for the corporation as of the end of each such period, that has
been prepared by the corporation shall be kept on file in the principal
executive office of the corporation for twelve (12) months and each such
statement shall be exhibited at all reasonable times to any stockholder
demanding an examination of any such statement or a copy shall be mailed to any
such stockholder.
If a stockholder or stockholders holding at least five percent (5%) of the
outstanding shares of any class of stock of the corporation make a written
request to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the current fiscal year ended
more than thirty (30) days prior to the date of the request, and a balance sheet
Exhibit 3(ii)
Page 15 of 18
of the corporation as of the end of such period, the treasurer shall cause such
statement to be prepared, if not already prepared, and shall deliver personally
or mail such statement or statements to the person making the request within
thirty (30) days after the receipt of such request. If the corporation has not
sent to the stockholders its annual report for the last fiscal year, this report
shall likewise be delivered or mailed to such stockholder or stockholders within
thirty (30) days after such request.
The corporation also shall, upon the written request of any stockholder, mail to
the stockholder a copy of the last annual, semi-annual or quarterly income
statement which it has prepared and a balance sheet as of the end of such
period.
The quarterly income statements and balance sheets referred to in this section
shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation, or the certificate of an authorized
officer of the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. Record Date for Purposes Other Than Notice and Voting.
For purposes of determining the stockholders 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 other lawful action, the board of
directors may fix, in advance, a record date, which shall not be more than sixty
(60) days prior to any such action, and in such case only stockholders of record
on the date so fixed are entitled to receive the dividend, distribution or
allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date fixed as aforesaid, except as otherwise provided in the Delaware
General Corporation Law.
If the board of directors does not so fix a record date, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the board adopts the resolution relating thereto, or the
sixtieth (60th) day prior to the date of such action, whichever is later.
Section 2. Checks, Drafts, Evidences of Indebtedness.
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness, issued in the name of or payable to the corporation
shall be signed or endorsed by such person or persons and in such manner as,
from time to time, shall be determined by resolution of the board of directors.
Section 3. Corporate Contracts and Instruments; How Executed.
The board of directors, except as otherwise provided in these bylaws, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the agency power of
an officer, no officer, agent or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or to any amount.
Section 4. Stock Certificates.
A certificate or certificates for shares of the capital stock of the corporation
shall be issued to each stockholder when any such shares are fully paid. All
certificates shall be signed in the name of the corporation by the chairman of
the board or the president or vice president and by the treasurer or an
Exhibit 3(ii)
Page 16 of 18
assistant treasurer or the secretary or any assistant secretary, certifying the
number of shares and the class or series of shares owned by the stockholder. Any
or all of the signatures 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 such person were an officer,
transfer agent or registrar at the date of issue.
Section 5. Lost Certificates.
Except as hereinafter in this Section 5 provided, no new stock certificate shall
be issued in lieu of an old certificate unless the latter is surrendered to the
corporation and canceled at the same time. The board of directors may in case
any stock certificate or certificate for any other security is lost, stolen or
destroyed, authorize the issuance of a new certificate in lieu thereof, upon
such terms and conditions as the board of directors may require, including
provision for indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of such certificate or the issuance of such
new certificate.
Section 6. Representation of Stock of Other Corporations.
The chairman of the board, the president, or any vice president, or any other
person authorized by resolution of the board of directors by any of the
foregoing designated officers, is authorized to vote on behalf of the
corporation any and all stock of any other corporation or corporations, foreign
or domestic, standing in the name of the corporation. The authority herein
granted to said officers to vote or represent on behalf of the corporation any
and all stock by the corporation in any other corporation or corporations may be
exercised by any such officer in person or by any person authorized to do so by
proxy duly executed by said officer.
Section 7. Construction and Definitions.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the Delaware General Corporation Law shall
govern the construction of the bylaws. Without limiting the generality of the
foregoing, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
Section 8. Fiscal Year.
The fiscal year of the corporation shall commence the first day of the calendar
year.
Section 9. Seal.
The seal of the corporation shall be round and shall bear the name of the
corporation and words and figures denoting its organization under the laws of
the State of Delaware and year thereof, and otherwise shall be in such form as
shall be approved from time to time by the board of directors.
ARTICLE IX
AMENDMENTS
Section 1. Amendment by Stockholders.
New bylaws may be adopted or these bylaws may be amended or repealed by the vote
of not less than 80% of the total voting power of all shares of stock of the
corporation entitled to vote in the election of directors, considered for
purposes of this Section 1 as one class.
Exhibit 3(ii)
Page 17 of 18
Section 2. Amendment by Directors.
Subject to the rights of the stockholders as provided in Section 1 of this
Article IX, to adopt, amend or repeal bylaws, bylaws may be adopted, amended or
repealed by the board of directors.
Amended : 10/25/01
Exhibit 3(ii)
Page 18 of 18