EXHIBIT 3.2
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, if any, 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, and at such other time 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. Business transacted at any special meeting of the
stockholders shall be limited to the purpose stated in the notice of meeting.
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 purpose or purposes for which the meeting is called, 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 or by electronic
transmission, 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. Whenever notice is
required to be given to any stockholder to whom (1) notice of 2 consecutive
annual meetings, and all notices of meetings or of the taking of action by
written consent without a meeting to such person during the period between such
2 consecutive annual meetings, or (2) all, and at least 2, payments (if sent by
first-class mail) of dividends or interests or securities during a 12 month
period, have been mailed addressed to such person at such person's address as
shown on the records of the corporation and have been returned undeliverable,
the giving of such notice shall not be required. If any such person shall
deliver to the corporation a written notice setting forth such person's then
current address, the requirement that notice be given to such person shall be
reinstated. If mailed, notice shall be deemed to have been given at the time
when delivered personally or deposited in the United States 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
voting power of the outstanding 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.
2
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, 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
voting power 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
percentage or voting by classes is required by the General Corporation Law of
the State of Delaware (the "General Corporation Law") or the certificate of
incorporation or the certificate of designations of preferences as to any
preferred stock, or the rules and regulations of any stock exchange applicable
to the corporation, or applicable law or pursuant to any rule or regulation
applicable to the corporation or its securities.
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, gives
a 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.
3
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 proxy. Without limiting the manner in which a proxy may be
granted, a stockholder may grant a proxy in the following manners: (i) by
executing a writing authorizing another person or persons to act for such
stockholder as proxy or (ii) by transmitting or authorizing the transmission of
a telegram, cablegram, or other means of electronic transmission to a person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided however that any such
telegram, cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by the
stockholder. A written 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 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 or
electronic transmission 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) notice of the death
or 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 three years 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 90th day nor earlier
than the close of business on the 120th 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
4
30 days before or more than 70 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 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th 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 or postponement of an annual meeting commence a
new time period (or extend any 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") (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 material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made (including the text of any resolutions proposed for consideration and in
the event that such business includes an amendment to the Bylaws, the language
of the proposed amendment); 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, (ii) the class and number of
shares of the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (iii) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination, and (iv) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group which
intends (a) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation's outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (b) otherwise to
solicit proxies from stockholders in support of such proposal or nomination. The
foregoing notice requirements shall be deemed satisfied by a stockholder if the
stockholder has notified the corporation of his or her intention to present a
proposal at an annual meeting in compliance with Rule 14a-8 (or any successor
thereof) promulgated under the Exchange Act and such stockholder's proposal has
been included in a proxy statement that has been prepared by the corporation to
solicit proxies for such annual meeting. The corporation may require any
proposed nominee to furnish such other information as the corporation may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the corporation.
(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 100
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 by 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
5
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 120th day prior to such special meeting and not later than the
close of business on the later of the 90th 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 or postponement of a special meeting commence a
new time period (or extend any 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 be elected at an annual
or special meeting of stockholders 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
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (A)(2)(c)(iv) of this Bylaw), to declare
that such defective proposal or nomination shall be disregarded. Notwithstanding
the foregoing provisions of this Bylaw, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the corporation to present a nomination or business,
such nomination shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been
received by the corporation.
(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 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 pursuant to any
applicable provision of the certificate of incorporation.
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.
6
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 Twelve (12) 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 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 AND NEWLY CREATED DIRECTORSHIPS.
Vacancies and newly created directorships 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, disqualification or
removal of any director, or if the authorized number of directors be increased.
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.
7
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 other 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 or by electronic transmission 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 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, telegram
or other form of electronic transmission, it shall be delivered personally, or
by telephone or to the telegraph company or transmitted by other electronic
transmission 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 gives a
waiver of notice, a consent to holding the meeting or an approval of the minutes
thereof. The waiver of notice or consent need
8
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
if the time and place thereof are announced at the adjourned meeting, 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 to such action in compliance with applicable law.
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.
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 the board 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
9
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) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the General Corporation
Law to be submitted to the stockholders for approval; or
(b) adopting, amending or repealing any bylaw of the
corporation.
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 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;
10
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.
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
11
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.
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 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 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
12
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) by a committee of Disinterested Directors
designated by Disinterested Directors, even though less than a quorum, or (iii)
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 (iv) 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 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 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, 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
13
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. 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.
(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
14
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 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.
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
15
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 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 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.
16
SECTION 7. CONSTRUCTION AND DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the 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.
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 December 5, 2002
17