----------------------------------
RESTATED AND AMENDED BY-LAWS
OF
TECE, INC.
AS AMENDED THROUGH
March 26, 2001
---------------------------------
ARTICLE I
STOCKHOLDERS
SECTION 1.1. Annual Meetings. An annual meeting of
stockholders to elect directors and transact such other business as may properly
be presented to the meeting shall be held at such place, within or without the
State of Nevada, as the Board of Directors may from time to time fix, if that
day shall be a legal holiday in the jurisdiction in which the meeting is to be
held, then on the next day not a legal holiday or as soon thereafter as may be
practical, determined by the Board of Directors.
SECTION 1.2. Special Meetings. A special meeting of
stockholders may be called at any time by two or more directors or the Chairman
of the Board or the President and shall be called by any of them or by the
Secretary upon receipt of a written request to do so specifying the matter or
matters, appropriate for action at such a meeting, proposed to be presented at
the meeting and signed by holders of record of a majority of the shares of stock
that would be entitled to be voted on such matter or matters if the meeting were
held on the day such request is received and the record date for such meeting
were the close of business on the preceding day. Any such meeting shall be held
at such time and at such place, within or without the State of Nevada, as shall
be determined by the body or person calling such meeting and as shall be stated
in the notice of such meeting.
SECTION 1.3. Notice of Meeting. For each meeting of
stockholders written notice shall be given stating the place, date and hour and,
in the case of a special meeting, the purpose or
purposes for which the meeting is called. Except as otherwise provided by the
General Corporation Law of the State of Nevada (the "GCLN"), the written notice
of any meeting shall be given not less than 10 nor more than 60 days before the
date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, directed to the stockholder at such stockholder's address
as it appears on the records of the Corporation.
SECTION 1.4. Quorum. Except as otherwise required by the GCLN
or the Articles of Incorporation, the holders of record of a majority of the
shares of stock entitled to be voted present in person or represented by proxy
at a meeting shall constitute a quorum for the transaction of business at the
meeting, but in the absence of a quorum the holders of record present or
represented by proxy at such meeting may vote to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is obtained.
SECTION 1.5. Chairman and Secretary at Meeting. At each
meeting of stockholders the Chairman of the Board, or if there is no incumbent
Chairman of the Board, the President shall preside as Chairman of the meeting.
If neither of such persons is available to preside, then the Board of Directors
shall designate a Chairman. The Secretary, or in such person's absence a person
designated by the Chairman of the meeting, shall act as secretary of the
meeting.
SECTION 1.6. Voting; Proxies. Except as otherwise provided by
the GCLN or the Articles of Incorporation, and subject to the provisions of
Section 1.10:
(a) Each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of stock held by such
stockholder.
(b) Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after six
months after its date of creation, unless coupled with an interest or unless the
proxy provides for a longer period, which shall in no event be longer than seven
years.
(c) Directors shall be elected by a plurality vote.
(d) Each matter, other than election of directors,
properly presented to any meeting shall be decided by a majority of the votes
cast on the matter, unless a larger proportion is required by the GCLN or the
Articles of Incorporation.
(e) Election of directors and the vote on any other
matter presented to a meeting shall be by written ballot only if so ordered by
the Chairman of the meeting or if so requested by any stockholder present or
represented by proxy at the meeting entitled to vote in such election or on such
matter, as the case may be.
-2-
SECTION 1.7. Adjourned Meetings. A meeting of stockholders may
be adjourned to another time or place as provided in Section 1.4. Unless the
Board of Directors fixes a new record date, stockholders of record for an
adjourned meeting shall be as originally determined for the meeting from which
the adjournment was taken and unless otherwise provided by the GCLN or the
Articles of Incorporation, no notice of the new date, time and place need be
given if they were announced at the meeting at which the adjournment is taken.
If a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote.
At any adjourned meeting at which there shall be present or represented the
holders of record of the requisite number of shares of stock, any business may
be transacted that might have been transacted at the meeting as originally
called.
SECTION 1.8. Consent of Stockholders in Lieu of Meeting. Any
action that may be taken at any annual or special meeting of stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing before or after the action, setting forth the action so taken, shall
be signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares of stock entitled to vote thereon were present and
voted.
SECTION 1.9. Fixing of Record Date. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. If no record date is fixed, 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 day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed; and the record date for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders applies to an adjournment of the meeting unless the Board of
Director fixes a new record date if the meeting is adjourned to a date not more
than 60 days later than the date set for the original meeting.
-3-
ARTICLE II
DIRECTORS
SECTION 2.1. Number; Term of Office; Qualifications;
Vacancies. The number of the directors constituting the entire Board of
Directors shall be the number, not less than three nor more than 15, fixed from
time to time, subject to the provisions of the Articles of Incorporation, by a
majority of the total number of directors that the Corporation would have, prior
to any increase or decrease, if there were no vacancies; provided, however, that
no decrease shall shorten the term of an incumbent director. Until otherwise
fixed by the directors, the number of directors constituting the entire Board
shall be six. Directors shall be elected at the annual meeting of stockholders
to hold office, subject to Sections 2.2 and 2.3, until the next annual meeting
of stockholders and until their respective successors shall have been duly
elected and qualify. Unless otherwise provided in the Articles of Incorporation,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by the sole remaining director, and
the directors so chosen shall hold office, subject to Sections 2.2 and 2.3, for
the unexpired portion of the term of the class in which such directors were
chosen to serve and until their successors are elected and qualify.
SECTION 2.2. Resignation. Any director of the Corporation may
resign at any time by giving written notice of such resignation to the Board of
Directors or the Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein or, if no time be specified, upon receipt
thereof by the Board of Directors or the Secretary; and, unless specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. When one or more directors shall resign from the Board of Directors
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in these By-Laws in the filling of other vacancies.
SECTION 2.3. Removal. Unless otherwise provided in the GCLN or
the Articles of Incorporation, any one or more directors may be removed by the
vote or written consent of the holders representing not less than two-thirds of
the voting power of the issued and outstanding stock entitled to voting power .
SECTION 2.4. Regular and Annual Meetings; Notice. Regular
meetings of the Board of Directors shall be held at such time and at such place,
within or without the State of Nevada, as the Board of Directors may from time
to time prescribe.
SECTION 2.5. Special Meetings; Notice. A special meeting of
the Board of Directors may be called at any time by the Board of Directors, the
Chairman of the Board or the President and shall be called by any one of them or
by the Secretary upon receipt of a written request to do so specifying the
matter or matters, appropriate for action at such a meeting, proposed to be
-4-
presented at the meeting and signed by at least two directors. Any such meeting
shall be held at such time and at such place, within or without the State of
Nevada, as shall be determined by the body or person calling such meeting.
Notice of such meeting stating the time, place and purpose in sufficient detail
thereof shall be given (a) in person by hand delivery or overnight courier or
(b)by deposit of the notice in the mails, first class, postage prepaid, at least
seven days before the day fixed for the meeting addressed to each director at
such person's address as it appears on the Corporation's records or at such
other address as the director may have furnished the Corporation for that
purpose.
SECTION 2.6. Presumption of Assent; Waiver of Notice.
Attendance of a director at a meeting shall constitute a waiver of notice unless
the director objects at the commencement of the meeting that the meeting is not
lawfully called or convened. Any director may waive notice of any meeting by
executing a written waiver of notice.
SECTION 2.7. Presiding Officer and Secretary at Meetings. Each
meeting of the Board of Directors shall be presided over by the Chairman of the
Board or, if there is no incumbent Chairman of the Board, by the President if he
is a director, or otherwise by such member of the Board of Directors as shall be
chosen at the meeting. The Secretary, or in such person's absence an Assistant
Secretary, shall act as secretary of the meeting, or if no such officer is
present, a secretary of the meeting shall be designated by the person presiding
over the meeting.
SECTION 2.8. Quorum. A majority of the directors then in
office shall constitute a quorum for the transaction of business, but in the
absence of a quorum a majority of those present (or if only one be present, then
that one) may adjourn the meeting, to a later date not earlier than the fifth
and not later than the tenth business day following receipt by all members
absent therefrom of a written notice of adjournment of the meeting. The vote of
the majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
SECTION 2.9. Meeting by Telephone. Members of the Board of
Directors or of any committee thereof may participate in meetings of the Board
of Directors or of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 2.10. Action Without Meeting. Unless otherwise
restricted by the Articles of Incorporation, any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or of
such committee, as the case may be, consent thereto in writing and the writing
or writings are filed with the minutes of proceedings of the Board of Directors
or of such committee.
SECTION 2.11. Committees of the Board. The Board of Directors
may, by resolution passed by the Board of Directors, designate one or more
committees, each such committee to consist of one or more directors as the Board
of Directors may from time to time determine. Unless otherwise provided for in
the Articles of Incorporation, or the By-Laws provide otherwise,
-5-
the Board of Directors may appoint natural persons who are not directors to
serve on committees. Any such committee, to the extent provided in such
resolution or resolutions, shall have and may exercise the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation. Each such committee shall have such name as may be determined from
time to time by the Board of Directors.
SECTION 2.12. Compensation. No director shall receive any
stated salary for such person's services as a director or as a member of a
committee but shall receive such sum, if any, as may from time to time be fixed
by the Board of Directors.
ARTICLE III
OFFICERS
SECTION 3.1. Election; Qualification. The officers of the
Corporation shall be a President, a Secretary and a Treasurer, each of whom
shall be selected by the Board of Directors. The Board of Directors may elect a
Chairman of the Board, a Chief Executive Officer, one or more Vice Presidents, a
Chief Financial Officer, a Controller, one or more Assistant Secretaries, one or
more Assistant Treasurers, one or more Assistant Controllers and such other
officers as it may from time to time determine. Two or more offices may be held
by the same person.
SECTION 3.2. Term of Office. Each officer shall hold office
from the time of such person's election and qualification to the time at which
such person's successor is elected and qualifies, unless he shall die or resign
or shall be removed pursuant to Section 3.4 at any time sooner.
SECTION 3.3. Resignation. Any officer of the Corporation may
resign at any time by giving written notice of such resignation to the Board of
Directors, the Chairman of the Board, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if no time be specified, upon receipt thereof by the Board of
Directors or one of the above-named officers; and, unless specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 3.4. Removal. Any officer may be removed at any time,
with or without cause, by the vote of the Board of Directors, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 3.5. Vacancies. Any vacancy however caused in any
office of the Corporation may be filled by the Board of Directors.
SECTION 3.6. Compensation. The compensation of each officer
shall be such as the Board of Directors or Committee appointed by the Board may
from time to time determine.
-6-
SECTION 3.7. Chairman of the Board. The Chairman of the Board,
if there is an incumbent, shall preside at all meetings of the Board of
Directors and of the stockholders, and shall have such powers and duties as
generally pertain to the office of Chairman of the Board, subject to the
direction of the Board of Directors.
SECTION 3.8. President. The President shall have powers and
duties as generally pertain to the office of President, subject to the direction
of the Board of Directors. If there is no incumbent Chairman of the Board, the
President shall preside at all meetings of the stockholders, and if the
President is a director, at all meetings of the Board of Directors.
SECTION 3.9. Chief Executive Officer. The Chief Executive
Officer shall have general charge of the business and affairs of the
Corporation, subject however to the right of the Board of Directors to confer
specified powers on officers and subject generally to the direction of the Board
of Directors and the Chairman of the Board.
SECTION 3.10. Vice President. Each Vice President shall have
such powers and duties as generally pertain to the office of Vice President and
as the Board of Directors, the Chairman of the Board, the President or the Chief
Executive Officer may from time to time prescribe. During the absence of the
President or such President's inability to act, the Vice President, or if there
shall be more than one Vice President, then that one designated by the Board of
Directors, shall exercise the powers and shall perform the duties of the
President, subject to the direction of the Board of Directors, the Executive
Committee, if any, and the Chairman of the Board.
SECTION 3.11. Secretary. The Secretary shall attend all
meetings and shall keep the minutes of all meetings of stockholders and of the
Board of Directors. The Secretary shall be custodian of the corporate seal and
shall affix it or cause it to be affixed to such instruments as require such
seal and attest the same and shall exercise the powers and shall perform the
duties incident to the office of Secretary, subject to the direction of the
Board of Directors and the Executive Committee, if any.
SECTION 3.12. Treasurer. The Treasurer shall have charge of
and be responsible for the funds, securities and investments of the Corporation,
shall cause to be disbursed the funds of the Corporation, shall receive, endorse
for collection and give receipts for checks, notes, obligations, funds and
securities of the Corporation and shall deposit funds and other valuable effects
in the name of and to the credit of the Corporation.
SECTION 3.13. Other Officers. Each other officer of the
Corporation shall exercise the powers and shall perform the duties incident to
such person's office, subject to the direction of the Board of Directors and the
Executive Committee, if any.
-7-
ARTICLE IV
CAPITAL STOCK
SECTION 4.1. Stock Certificates. The interest of each holder
of stock of the Corporation shall be evidenced by a certificate or certificates
in such form as the Board of Directors may from time to time prescribe. Each
certificate shall be signed by, or in the name of, the Corporation by the
Chairman of the Board, the President or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary. Any of or all
the signatures appearing on such certificate or certificates may be a facsimile.
If 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 such
officer, transfer agent or registrar at the date of issue.
SECTION 4.2. Transfer of Stock. Shares of stock shall be
transferable on the books of the Corporation pursuant to applicable law and such
rules and regulations as the Board of Directors shall from time to time
prescribe; provided that the Corporation shall refuse to register any transfer
of its stock not made pursuant to registration under the Securities Act of 1933,
as amended, or an available exemption from such registration, including without
limitation that provided by Regulation S (Rules 901 through 905 and Preliminary
Notes) thereunder.
SECTION 4.3. Holders of Record. Prior to due presentment for
registration of transfer the Corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the rights and powers of
a complete owner thereof, notwithstanding notice to the contrary.
SECTION 4.4. Lost, Stolen, Destroyed or Mutilated
Certificates. The Corporation shall issue a new certificate of stock to replace
a certificate theretofore issued by it alleged to have been lost, destroyed or
wrongfully taken, if the owner or such owner's legal representative (i) requests
replacement, before the Corporation has notice that the stock certificate has
been acquired by a bona fide purchaser; (ii) if required by the Corporation,
files with the Corporation a bond sufficient to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such stock certificate or the issuance of any such
new stock certificate; and (iii) satisfies such other terms and conditions as
the Board of Directors may from time to time prescribe.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Indemnity. (a) The Corporation shall indemnify,
subject to the requirements of subsection (d) of this Section, any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil,
-8-
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify, subject to the
requirements of subsection (d) of this Section, any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation. Indemnification may not be made for a claim,
issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the Corporation or for amounts paid in settlement to the Corporation, unless
and only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application that in view
of all the circumstances of the case, the person is fully and reasonably
entitled to indemnity for such expenses as the court deems proper.
(c) To the extent that a present or former director or officer
of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsection (a) and (b) of this
section, or in defense of any claim, issue or matter therein, the Corporation
shall indemnify such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
(d) Any discretionary indemnification under subsections (a)
and (b) of this section (unless ordered by a court or advanced pursuant to
subsection (e) of this section) may be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances. Such determination shall be made (1) by a majority vote of a
quorum consisting of directors who are not parties to such action, suit or
proceeding, or (2) if such a quorum cannot be
-9-
obtained or if such a quorum so directs, by independent legal counsel in a
written opinion or (3) by the stockholders.
(e) Expenses incurred by a director, officer, employee or
agent in defending a civil or criminal action, suit or proceeding shall be paid
by the Corporation as they are incurred and in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount if it
shall ultimately be determined by a court of competent jurisdiction that such
person is not entitled to be indemnified by the Corporation.
(f) The indemnification and advancement of expenses provided
by or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
(g) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or who is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
section.
(h) The indemnification and advancement of expenses provided
by, or granted pursuant to this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. The provisions of this Section
5.1 shall be deemed to be a contract between the Corporation and each director
and officer who serves in such capacity at any time when this Section 5.1 and
the relevant provisions of the GCLN or other appreciable law are in effect, and
any repeal or modification of this Section 5.1 or any law shall not affect any
rights or obligations then existing with respect to any state of facts or
action, suit or proceeding then existing.
(i) For the purposes of this section, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this section with respect to the
resulting or
-10-
surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(j) This Section 5.1 shall be construed to give the
Corporation the broadest power permissible by the GCLN, as it now stands and as
hereafter amended.
SECTION 5.2. Waiver of Notice. Whenever notice is required by
the Articles of Incorporation, the By-Laws or any provision of the GCLN, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time required for such notice, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors or members of a committee of directors need be
specified in any written waiver of notice.
SECTION 5.3. Fiscal Year. The fiscal year of the Corporation
shall start on such date as the Board of Directors shall from time to time
prescribe.
SECTION 5.4. Offices. The registered office of the Corporation
in the State of Nevada shall be located at such address as is determined from
time to time by the Board of Directors. The Corporation may conduct business and
may have such other offices, either within or without the State of Nevada, as
the Board of Directors may designate or as the business of the Corporation may
from time to time require.
SECTION 5.5. Corporate Seal. The corporate seal shall be in
such form as the Board of Directors may from time to time prescribe, and the
same may be used by causing it or a facsimile thereof to be impressed or affixed
or in any other manner reproduced.
ARTICLE VI
AMENDMENT OF BY-LAWS
SECTION 6.1. Amendment. Subject to the provisions of the GCLN,
these By-Laws may be altered, amended or repealed by the Board of Directors.
-11-
ARTICLE VII
STOCKHOLDER PROPOSALS
SECTION 7.1. Stockholder Proposals Other Than a Nomination for
Election of the Corporation's Board of Directors.
(a) Any stockholder wishing to submit a proposal for
consideration at an annual meeting of stockholders, other than a nomination for
election to the Board of Directors, shall give notice to the Corporation of such
proposal not less than 45 days prior to the first anniversary of the date of the
last annual meeting of stockholders. Such notice shall be in writing, delivered
or mailed by first class mail, postage prepaid, to the Secretary of the
Corporation, and shall be received by the Secretary in conformity with the
deadline referred to in the previous sentence.
(b) Each notice shall set forth (i) the name, age and address
of the stockholder who intends to make the proposal and a brief description of
the proposal itself; (ii) a representation that the stockholder is a holder of
record of the Corporation entitled to vote at the meeting and intends to appear
in person or by proxy at the meeting to present the proposal specified in the
notice; and (iii) such other information regarding the proposal as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had such proposal been made by
the Board of Directors of the Corporation.
(c) The Chairman of any meeting of stockholders may, if the
facts warrant, determine and declare to the meeting that a stockholder proposal
was not made in accordance with the foregoing procedure, and if he or she should
so determine, the Chairman shall so declare to the meeting and the defective
proposal shall be disregarded.
(d) At all such times as any class of the Corporation's
securities is registered under the Securities Exchange Act of 1934, as amended,
all stockholder proposals shall also be required to conform to applicable
provisions (including notice provisions) of Regulation 14A thereunder.
SECTION 7.2. Stockholder Proposals for the Nomination for
Election to the Corporation's Board of Directors.
(a) Any stockholder wishing to submit a proposal for
consideration at the annual meeting of stockholders for the nomination for the
election to the Board of Directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class mail, postage pre- paid, to the
Secretary of the Corporation not less than 45 days prior to the first
anniversary of the date of the last meeting of stockholders of the Corporation
called for the election of directors.
(b) Each notice shall set forth (i) the name, age and address
of the stockholder who intends to make the nomination and of the person or
persons to be nominated; (ii) a representation that the stockholder is a holder
of record of the Corporation entitled to vote at the meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (iii) the name, age, business address and, if known,
residence address of each
-12-
nominee proposed in such notice; (iv) the principal occupation or employment of
each such nominee; (v) a description of all arrangements or understandings
between the stockholder and each such nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or nominations
are to be made by the stockholder; (vi) such other information regarding each
such nominee as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated, by the Board of
Directors of the corporation; and (vii) the consent of each such nominee to
serve as a director of the Corporation if so elected.
(c) The Chairman of any meeting of stockholders may, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he or she should so
determine, the Chairman shall so declare to the meeting and the defective
nomination shall be disregarded.
(d) Except as required in the By-Laws no election need be by
written ballot.
(e) At all such times as any class of the Corporation's
securities is registered under the Securities Exchange Act of 1934, as amended,
stockholder proposals for nomination for election to the Board of Directors
shall also be required to conform to applicable provisions (including notice
provisions) of Regulation 14A thereunder.
-13-