BY-LAWS
STRATEGIC INDUSTRIES, INC.
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. (a) All annual meetings of the
Stockholders for the election of directors shall be held at such place as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting.
(b) Annual meetings of Stockholders shall be held on such date
and at such time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. At the annual meeting, a
Board of Directors shall be elected or, during such time as the Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation") provides
for a classified Board of Directors, that class of directors the term of which
shall expire at the meeting shall be elected, and the Stockholders shall
transact such other business as may properly be brought before the meeting.
(c) Written notice of the annual meeting stating the place,
date, and hour of the meeting shall be given to each Stockholder entitled to
vote at such meeting not less than ten days nor more than sixty days prior to
the date of the meeting. A written waiver of any such notice signed by the
person entitled thereto, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a person at a meeting in person or
by proxy shall constitute a waiver of notice of such meeting, except when the
person attends the 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.
(d) The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Stockholder who is
present. The stock ledger shall be the only evidence as to the Stockholders
entitled to examine
1
the stock ledger, the list required by this section or the books of the
Corporation, or to vote in person or by proxy at any meeting of Stockholders.
SECTION 2. Special Meetings. (a) Special meetings of the
Stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation of the Corporation, shall be
called only by the Chairman of the Board or by the Secretary upon direction of
the Board of Directors pursuant to a resolution adopted by a majority of the
Directors then in office. Such request shall state the purpose or purposes of
the proposed meeting.
(b) Written notice of a special meeting stating the place,
date, and hour of the meeting and, in general terms, the purpose or purposes for
which the meeting is called, shall be given not less than ten days nor more than
sixty days prior to the date of the meeting, to each Stockholder entitled to
vote at such meeting. Special meetings may be held at such place as shall be
designated by the Board of Directors. Whenever the directors shall fail to fix
such place, the meeting shall be held at the principal executive offices of the
Corporation.
(c) Business transacted at any special meeting of
Stockholders, other than procedural matters and matters relating to the conduct
of the meeting, shall be limited to the purpose or purposes stated in the
notice.
SECTION 3. Quorums. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
Stockholders for the transaction of business except as otherwise provided by the
Delaware General Corporation Law ("Delaware Law") or by the Certificate of
Incorporation. Unless these By-Laws otherwise require, when a meeting is
adjourned to another time or place, whether or not a quorum is present, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each Stockholder of
record entitled to vote at the meeting. When a quorum is once present it is not
broken by the subsequent withdrawal of any Stockholder.
SECTION 4. Organization. Meetings of Stockholders shall be
presided over by the Chairman of the Board, if any, or if none or in the
Chairman's absence, by the President, if any, or if none or in the President's
absence, by the Executive Vice President, if any, or if none or in the Executive
Vice President's absence, by a chairman to be designated by the Chairman of the
Board. The Secretary of the Corporation, or in the Secretary's absence an
Assistant Secretary, shall act as Secretary of every meeting and keep the
minutes thereof, but if neither the Secretary nor an Assistant Secretary is
present, the presiding officer of the meeting shall appoint any person present
to act as secretary of the meeting. The order of business at all meetings of
stockholders shall be as determined by the Chairman of the meeting.
2
SECTION 5. Voting; Proxies; Required Vote. (a) At each meeting
of Stockholders, every Stockholder shall be entitled to vote in person or by
proxy (but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period) and, unless Delaware Law or
the Certificate of Incorporation (including resolutions designating any class or
series of preferred stock pursuant to Article IV of the Certificate of
Incorporation) provides otherwise, shall have one vote for each share of stock
entitled to vote registered in the name of such Stockholder on the books of the
Corporation on the applicable record date fixed pursuant to these By-Laws.
Except as otherwise required by law or the Certificate of Incorporation, at all
elections of directors the voting may but need not be by ballot and a plurality
of the votes entitled to vote thereon that are cast shall elect directors.
Except as otherwise required by law or the Certificate of Incorporation, any
other action shall be authorized by a majority of the votes entitled to vote
thereon that are cast.
(b) Where a separate vote by a class or classes is required on
a matter by law or the Certificate of Incorporation, a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum entitled to vote on that matter, and the
affirmative vote of the majority of shares of such class or classes entitled to
vote thereon that are cast shall be the act of such class, unless otherwise
provided in the Certificate of Incorporation.
SECTION 6. Inspector of Election. The Board of Directors, in
advance of any meeting, may, but need not, unless required by Delaware Law,
appoint one or more inspectors of election to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not so appointed, the
person presiding at the meeting may, but need not, unless required by Delaware
Law, appoint one or more inspectors. In case any person who may be appointed as
an inspector fails to appear or act, the vacancy may be filled by appointment
made by the directors in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, if any, before entering upon the discharge of
his or her duties, shall take and sign an oath faithfully to execute the duties
of inspector at such meeting with strict impartiality and according to the best
of his ability. The inspectors, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock represented
at the meeting, the existence of a quorum, and the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all Stockholders.
On request of the person presiding at the meeting, the inspector or inspectors,
if any, shall make a report in writing of any challenge, question or matter
determined by such inspector or inspectors and execute a certificate of any fact
found by such inspector or inspectors.
SECTION 7. Stockholder Proposals and Nominations. (a) No
proposal for a stockholder vote shall be submitted by a Stockholder (a
"Stockholder Proposal") to the Corporation's Stockholders unless the Stockholder
submitting such proposal (the "Proponent") shall have filed a written notice in
accordance with subsection (c) hereof setting forth with particularity (i) the
names and business addresses of the Proponent and all persons or entities
3
(collectively, the "Persons") acting in concert with the Proponent; (ii) the
name and address of the Proponent and the Persons identified in clause (i), as
they appear on the Corporation's books (if they so appear); (iii) the class and
number of shares of the Corporation beneficially owned by the Proponent and the
Persons identified in clause (i); (iv) a description of the Stockholder Proposal
containing all material information relating thereto; and (v) such other
information as the Board of Directors reasonably determines is necessary or
appropriate to enable the Board of Directors and Stockholders of the Corporation
to consider the Stockholder Proposal. The presiding officer at any Stockholders'
meeting may determine that any Stockholder Proposal was not made in accordance
with the procedures prescribed in these By-Laws or is otherwise not in
accordance with law, and if it is so determined, such officer shall so declare
at the meeting and the Stockholder Proposal shall be disregarded.
(b) Only persons who are selected and recommended by the Board
of Directors or the committee of the Board of Directors designated to make
nominations (if any), or who are nominated by Stockholders in accordance with
the procedures set forth in this Section 7, shall be eligible for election, or
qualified to serve, as directors. Nominations of individuals for election to the
Board of Directors of the Corporation at any annual meeting or any special
meeting of Stockholders at which directors are to be elected may be made by any
Stockholder of the Corporation entitled to vote for the election of directors at
that meeting by compliance with the procedures set forth in this Section 7.
Nominations by Stockholders shall be made by written notice filed in accordance
with subsection (c) hereof (a "Nomination Notice"), which shall set forth (i) as
to each individual nominated, (A) the name, date of birth, business address and
residence address of such individual; (B) the business experience during the
past five years of such nominee, including his or her principal occupations and
employment during such period, the name and principal business of any
corporation or other organization in which such occupations and employment were
carried on, and such other information as to the nature of his or her
responsibilities and level of professional competence as may be sufficient to
permit assessment of his or her prior business experience; (C) whether the
nominee is or has ever been at any time a director, officer or owner of 5% or
more of any class of capital stock, partnership interests or other equity
interest of any corporation, partnership or other entity; (D) any directorships
held by such nominee in any company with a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, or
subject to the requirements of Section 15(d) of such Act or any company
registered as an investment company under the Investment Company Act of 1940, as
amended; and (E) whether, in the last five years, such nominee has been
convicted in a criminal proceeding or has been subject to a judgment, order,
finding or decree of any federal, state or other governmental entity, concerning
any violation of federal, state or other law, or any proceeding in bankruptcy,
which conviction, order, finding, decree or proceeding may be material to an
evaluation of the ability or integrity of the nominee; and (ii) as to the Person
submitting the Nomination Notice and any Person acting in concert with such
Person, (x) the name and business address of such Person, (y) the name and
address of such Person as they appear on the Corporation's books (if they so
appear), and (z) the class and number of shares of the Corporation that are
beneficially owned by such Person. A written consent to being named in a proxy
statement as a nominee, and to serve as a director if elected, signed by the
nominee, shall be filed with any Nomination Notice. If the presiding officer at
any Stockholders' meeting determines that a nomination was
4
not made in accordance with the procedures prescribed by these By-Laws, he shall
so declare to the meeting and the defective nomination shall be disregarded.
(c) Stockholder Proposals and Nomination Notices shall be
delivered to the Secretary at the principal executive office of the Corporation
120 days or more before the date of the anniversary of the last annual
Stockholders' meeting if such Stockholder Proposal or Nomination Notice is to be
submitted at an annual Stockholders' meeting, unless the meeting is to be held
more than 60 days in advance of such anniversary date, in which event the
Stockholder Proposal or Nomination Notice shall be delivered to the Secretary at
the principal executive office of the Corporation no later than the close of
business on the 15th day following the day on which notice of the meeting was
given. Nomination Notices shall be delivered to the Secretary at the principal
executive office of the Corporation no later than the close of business on the
15th day following the day on which notice of the date of a special meeting of
Stockholders was given if the Nomination Notice is to be submitted at a special
Stockholders' meeting.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs
of the Corporation shall be managed by, or under the direction of, the Board of
Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each
director shall be at least 18 years of age. A director need not be a
Stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board shall be such
number as may be fixed from time to time by the Board of Directors, but shall be
not less than three or more than eleven. One of the directors shall be selected
by the Board of Directors to be its Chairman, who shall preside at meetings of
the Stockholders and the Board of Directors and shall have such other duties, if
any, as may from time to time be assigned by the Board of Directors. The use of
the phrase "entire Board" herein refers to the total number of directors which
the Corporation would have if there were no vacancies.
(b) Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing Committees may be allowed like compensation for attending
Committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise
provided by law, a majority of the entire Board of Directors shall constitute a
quorum. A majority of the directors present, whether or not a quorum is present,
may adjourn a meeting from time to time to another time and place without
notice. The vote of the majority of the directors present at a
5
meeting at which a quorum is present shall be the act of the Board of Directors.
When a meeting is adjourned to another time or place, whether or not a quorum is
present, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Board of Directors may transact any business which might
have been transacted at the original meeting.
SECTION 4. Annual Meeting. At the next regular meeting
following the annual meeting of Stockholders, the newly elected Board of
Directors shall meet for the purpose of the election of officers and the
transaction of such other business as may properly come before the meeting.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as the Board of Directors shall from time
to time by resolution determine. After the place and time of regular meetings of
the Board of Directors shall have been determined and notice thereof shall have
been once given to each member of the Board of Directors, regular meetings may
be held without further notice being given.
SECTION 6. Special Meetings. Notice of the date, time and
place of each special meeting shall be mailed by regular mail to each director
at his designated address at least six days before the meeting; or sent by
overnight courier to each director at his designated address at least two days
before the meeting (with delivery scheduled to occur no later than the day
before the meeting); or given orally by telephone or other means, or by
telegraph or telecopy, or by any other means comparable to any of the foregoing,
to each director at his designated address at least 24 hours before the meeting;
provided, however, that if less than five days' notice is provided and one third
of the members of the Board of Directors then in office object in writing prior
to or at the commencement of the meeting, such meeting shall be postponed until
five days after such notice was given pursuant to this sentence (or such shorter
period to which a majority of those who objected in writing agree), provided
that notice of such postponed meeting shall be given in accordance with this
Section 6. The notice of the special meeting shall state the general purpose of
the meeting, but other routine business may be conducted at the special meeting
without such matter being stated in the notice.
SECTION 7. Organization. At all meetings of the Board of
Directors, the Chairman or in the Chairman's absence or inability to act, a
chairman chosen by the directors, shall preside. The Secretary of the
Corporation shall act as secretary at all meetings of the Board of Directors
when present, and, in the Secretary's absence, the presiding officer may appoint
any person to act as Secretary.
SECTION 8. Resignation and Removal. Any director may resign at
any time upon written notice to the Corporation and such resignation shall take
effect upon receipt thereof by the Chairman or Secretary, unless otherwise
specified in the resignation. Directors may be removed only in the manner
provided in the Certificate of Incorporation.
SECTION 9. Vacancies. Unless otherwise provided in these
By-Laws or the Certificate of Incorporation, vacancies on the Board of
Directors, whether caused by
6
resignation, death, disqualification, removal, an increase in the authorized
number of directors or otherwise, may be filled by the affirmative vote of a
majority of the remaining directors, although less than a quorum, or by a sole
remaining director.
SECTION 10. Preferred Directors. Notwithstanding anything else
contained herein, whenever the holders of one or more classes or series of
Preferred Stock shall have the right, voting separately as a class or series, to
elect directors, the election, term of office, filling of vacancies, removal and
other features of such directorships shall be governed by the terms of the
Certificate of Incorporation.
ARTICLE III
Committees
SECTION 1. Appointment; Powers. The Board of Directors may
designate one or more Committees, each Committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any Committee, who may replace any absent
or disqualified member at any meeting of the Committee. In the absence or
disqualification of a member of a Committee, the member or members present at
any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such Committee, to the extent provided in the
resolution, shall, have and may exercise, to the extent permitted by Delaware
Law, the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such Committee shall have the
power or authority to: (i) approve or adopt, or recommend to the stockholders,
any action or matter required to be submitted to the Stockholders for approval,
(ii) adopt, amend or repeal any By-Law or (iii) take any action that it is not
permitted to take pursuant to Delaware Law. Such Committee or Committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
SECTION 2. Procedures, Quorum and Manner of Acting. Each
Committee shall fix its own rules of procedure, and shall meet where and as
provided by such rules or by resolution of the Board of Directors. Except as
otherwise provided by law, the presence of a majority of the then appointed
members of a Committee shall constitute a quorum for the transaction of business
by that Committee, and in every case where a quorum is present the affirmative
vote of a majority of the members of the Committee present shall be the act of
the Committee. Each Committee shall keep minutes of its proceedings, and actions
taken by a Committee shall be reported to the Board of Directors.
SECTION 3. Termination. In the event any person shall cease to
be a director of the Corporation, such person shall simultaneously therewith
cease to be a member of any Committee appointed by the Board of Directors.
7
ARTICLE IV
Officers
SECTION 1. Election and Qualifications. The Board of Directors
at its first meeting held after each annual meeting of Stockholders shall elect
the officers of the Corporation, which shall include a President and a
Secretary, and may include, by election or appointment, a Chairman of the Board,
one or more Vice-Presidents (any one or more of whom may be given an additional
designation of rank or function), a Treasurer and such Assistant Secretaries,
such Assistant Treasurers and such other officers as the Board of Directors may
from time to time deem proper. Each officer shall have such powers and duties as
may be prescribed by these By-Laws and as may be assigned by the Board of
Directors or the President. Any two or more offices may be held by the same
person.
SECTION 2. Term of Office and Remuneration. The term of office
of all officers shall be until their respective successors have been elected and
qualified or their earlier death, resignation or removal. The remuneration of
all officers of the Corporation may be fixed by the Board of Directors or in
such manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any
time upon written notice to the Corporation and such resignation shall take
effect upon receipt thereof by the President or Secretary, unless otherwise
specified in the resignation. Any officer shall be subject to removal, with or
without cause, at any time by the Board of Directors. Any vacancy in any office
shall be filled in such manner as the Board of Directors shall determine.
SECTION 4. Powers and Duties of Officers.
(a) The Chairman of the Board of Directors, if there be one,
shall be the chief executive officer of the Corporation and shall preside at all
meetings of the Stockholders and the Board of Directors and shall have general
management of and supervisory authority over the property, business and affairs
of the Corporation and its other officers. The Chairman of the Board may execute
and deliver in the name of the Corporation powers of attorney, contracts, bonds
and other obligations and instruments, and shall have such other authority and
perform such other duties as from time to time may be assigned by the Board of
Directors. The Chairman of the Board shall see that all orders and resolutions
of the Board of Directors are carried into effect and shall perform such
additional duties that usually pertain to the office of chief executive officer.
(b) If there be no Chairman of the Board, the President shall
be the chief executive officer and shall exercise the powers listed in (a)
above. Otherwise, the President may execute and deliver in the name of the
Corporation powers of attorney, contracts, bonds and other obligations and
instruments, and shall have such other authority and perform such other duties
as from time to time may be assigned by the Board of Directors or the Chairman
of the Board.
8
(c) A Vice President may execute and deliver in the name of
the Corporation powers of attorney, contracts, bonds and other obligations and
instruments, and shall have such other authority and perform such other duties
as from time to time may be assigned by the Board of Directors, the Chairman of
the Board or the President.
(d) The Treasurer shall in general have all duties and
authority incident to the position of Treasurer and such other duties and
authority as may be assigned by the Board of Directors, the Chairman of the
Board or the President. The Treasurer shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by or at the direction
of the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, the Chairman of the
Board or the President, and shall render, upon request, an account of all such
transactions.
(e) The Secretary shall in general have all the duties and
authority incident to the position of Secretary and such other duties and
authority as may be assigned by the Board of Directors, the Chairman of the
Board or the President. The Secretary shall attend all meetings of the Board of
Directors and all meetings of Stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose. The Secretary shall
give, or cause to be given, notice of all meetings of the Stockholders and
special meetings of the Board of Directors. The Secretary shall have custody of
the seal of the Corporation and any officer of the Corporation shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by the signature of the Secretary or any other officer.
(f) The Corporate Controller, if there be one, shall be the
Corporation's principal accounting officer, and shall have all duties and
authority in connection with financial reporting and related matters that are
incident to such position.
(g) Any assistant officer shall have such duties and authority
as the officer such assistant officer assists and, in addition, such other
duties and authority as the Board of Directors, the Chairman of the Board or
President shall from time to time assign.
ARTICLE V
Contracts, Etc.
SECTION 1. Contracts. The Board of Directors may authorize any
person or persons, in the name and on behalf of the Corporation, to enter into
or execute and deliver any and all deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or confined to
specific instances. In addition, the officers may enter into, execute and
deliver such undertakings in the ordinary course of business, and authorize
other persons to enter into, execute and deliver such undertakings in the
ordinary course of
9
business, in connection with the officers' exercise of their powers enumerated
in these By-Laws.
SECTION 2. Proxies; Powers of Attorney; Other Instruments. (a)
The Chairman of the Board, the President, any Vice President, the Treasurer or
any other person designated by any of them shall have the power and authority to
execute and deliver proxies, powers of attorney and other instruments on behalf
of the Corporation in connection with the execution of contracts, the purchase
of real or personal property, the rights and powers incident to the ownership of
stock by the Corporation and such other situations as the Chairman of the Board,
the President, such Vice President or the Treasurer shall approve (to the extent
in the ordinary course of business or, in other instances, as may be authorized
by the Board of Directors), such approval to be conclusively evidenced by the
execution of such proxy, power of attorney or other instrument on behalf of the
Corporation.
(b) The Chairman of the Board, the President, any Vice
President, the Treasurer or any other person to the extent authorized by proxy
or power of attorney executed and delivered by any of them on behalf of the
Corporation may vote any and all stock or other equity interest held by the
Corporation in any other corporation or other business entity, and may exercise
on behalf of the Corporation any and all of the rights and powers incident to
the ownership of such stock or other equity interest. The Board of Directors,
from time to time, may confer like powers upon any other person.
ARTICLE VI
Books and Records
SECTION 1. Location. The books and records of the Corporation
may be kept at such place or places as the Board of Directors or the respective
officers in charge thereof may from time to time determine. The record books
containing the names and addresses of all Stockholders, the number and class of
shares of stock held by each and the dates when they respectively became the
owners of record thereof shall be kept by the Secretary as prescribed in the
By-Laws or by such officer or agent as shall be designated by the Board of
Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and
all other corporate notices may be delivered personally or mailed to each
Stockholder at the Stockholder's address as it appears on the records of the
Corporation, and shall be deemed given when delivered personally or deposited in
the mails for mailing to such address.
SECTION 3. Fixing Date for Determination of Stockholders of
Record. (a) 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, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors and which record date shall not be more
than 60 days nor less than 10 days before the date of such meeting. If no record
date is fixed by the
10
Board of Directors, 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. A determination of Stockholders of record entitled to
notice of or to vote at a meeting of Stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the
Stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the Stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action not contemplated by paragraph (a) of this Section 3, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted and which
record date shall be not more than 60 days prior to such action. If no record
date is fixed, the record date for determining Stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
ARTICLE VII
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate, signed by or in the name of the Corporation by
the Chairman or Vice-Chairman of the Board of Directors, or the President or any
Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, representing the number of shares
registered in certificate form. Any or all of the signatures on any such
certificate may be a 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 such officer, transfer agent or registrar at the date of
issue. In furtherance and not in limitation of the foregoing, the Board of
Directors shall have authority to authorize a direct registration system whereby
the registration of the issuance and transfer of any or all of the shares of any
or all classes and series of capital stock of the Company may, to the extend
permitted by applicable law, be entered in the Company's stock records in
book-entry form without the issuance of certificates therefor.
11
SECTION 2. Record Ownership. The names and addresses of the
holders of record of the shares of each class and series of the Corporation's
capital stock, together with the number of shares of each class and series held
by each record holder and the date of issue of such shares, shall be entered on
the books of the Corporation. The Corporation shall be entitled to treat the
holder of record of any share of stock as the holder in fact thereof, and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in any share on the part of any other person, whether or not it shall
have express or other notice thereof, except as required by Delaware Law. The
Board of Directors shall have power and authority to make all such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates representing shares of the Corporation.
SECTION 3. Transfer of Record Ownership. Transfer of stock in
certificated form shall be made on the books of the Corporation only by
direction of the person named in the certificate or such person's attorney,
lawfully constituted in writing, and only upon the surrender of the certificate
therefor and a written assignment of the shares evidenced thereby, which
certificate shall be canceled before the new certificate is issued.
SECTION 4. Fractional Shares. The Corporation may, but shall
not be required to, issue certificates for fractions of a share where necessary
to effect authorized transactions, or the Corporation may pay in cash the fair
value of fractions of a share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the Corporation or of
its agent, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a Stockholder except as therein
provided.
SECTION 5. Lost, Stolen or Destroyed Certificates. The
Corporation may issue a new certificate in place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the Board of
Directors may require the owner of any lost, stolen or destroyed certificate, or
his legal representative, to give 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 certificate or the issuance of
any such new certificate.
SECTION 6. Transfer Agents; Registrants; Rules Respecting
Certificates. The Board of Directors may appoint, or authorize any officer or
officers to appoint, one or more transfer agents and one or more registrars. The
Board of Directors may make such further rules and regulations as it may deem
expedient concerning the issue, transfer and registration of stock certificates
of the Corporation.
ARTICLE VIII
Dividends
12
Subject to the provisions of Delaware Law and the Certificate
of Incorporation, the Board of Directors shall have full power to declare and
pay dividends on the capital stock of the Corporation. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available
for dividends such sum or sums as the Board of Directors from time to time, in
its absolute discretion, may determine for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
ARTICLE IX
Ratification
Any transaction, questioned in any lawsuit on the ground of
lack of authority, defective or irregular execution, adverse interest of
director, officer or Stockholder, non-disclosure, miscomputation, or the
application of improper principles or practices of accounting, may be ratified
before or after judgment, by the Board of Directors or by the requisite majority
of Stockholders, to the fullest extent permitted by Delaware Law, and if so
ratified shall have the same force and effect as if the questioned transaction
had been originally duly authorized. Such ratification shall be binding upon the
Corporation and its Stockholders and shall constitute a bar to any claim or
execution of any judgment in respect of such questioned transaction.
ARTICLE X
Corporate Seal
The corporate seal shall be in form of a circular inscription
which contains the words "Corporate Seal" and such additional information as the
officer inscribing such seal shall determine in such officer's sole discretion.
The corporate seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise displayed or it may be manually
inscribed.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors. Unless otherwise fixed by the
Board of Directors, the fiscal year of the Corporation shall end on the Saturday
closest to September 30.
ARTICLE XII
13
Waiver of Notice
Whenever notice is required to be given by these By-Laws or by
the Certificate of Incorporation or by law, a written waiver thereof, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XIII
Amendments
By-Laws may be adopted, amended or repealed by either the
Board of Directors or the affirmative vote of the holders of at least 66 2/3% of
the voting power of all shares of the Corporation's capital stock then entitled
to vote generally in the election of directors.
ARTICLE XIV
Indemnification
SECTION 1. Right to Indemnification. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact (a) that he or she is or was a director or officer of the Corporation, or
(b) that he or she, being at the time a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
member, employee, fiduciary or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (collectively, "another enterprise" or "other
enterprise"), shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by Delaware Law as the same exists or may hereafter be
amended (but, in the case of any such amendment, with respect to alleged action
or inaction occurring prior to such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
permitted prior thereto), against all expense, liability and loss (including,
without limitation, attorneys' and other professionals' fees and expenses,
claims, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) ("Losses") actually and reasonably incurred or suffered by such
person in connection with such Proceeding. Without diminishing the scope of
indemnification provided by this Section 1, such persons shall also be entitled
to the further rights set forth below.
SECTION 2. Permissive Indemnification. Each person who was or
is made a party or is threatened to be made a party to or is otherwise involved
in any threatened, pending or completed Proceeding, by reason of the fact (a)
that he or she is or was an employee or agent of the Corporation or (b) that he
or she, not being at the time a director or officer of the Corporation, is or
was serving at the request of the Corporation as a director, officer, member,
employee, fiduciary or agent of another corporation or of another enterprise,
may be
14
indemnified and held harmless by the Corporation to the fullest extent
permitted by Delaware law as the same exists or may hereafter be amended,
against all Losses actually and reasonably incurred or suffered by such person
in connection with such Proceeding.
SECTION 3. Authorization of Indemnification. Any
indemnification under this Article (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of a person is proper in the circumstances because such
person has met the applicable standards of conduct, if any, required by Delaware
Law. Such determination shall be made, with respect to a person who is a
director or officer of the Corporation at the time of such determination, in a
reasonably prompt manner (i) by the Board of Directors by a majority vote of
directors who were not parties to such action, suit or proceeding, whether or
not they constitute a quorum of the Board of Directors, (ii) by a committee of
such directors designated by majority vote of such directors, even though less
than a quorum, (iii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, (iv) by the
Stockholders or (v) as Delaware Law may otherwise permit. To the extent,
however, that a present or former director or officer of the Corporation has
been successful on the merits or otherwise in defense of any Proceeding, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' and other professionals' fees) actually
and reasonably incurred by such person in connection therewith, without the
necessity of authorization in the specific case.
SECTION 4. Good Faith Defined. To the extent that Delaware Law
requires a determination that a person has acted in good faith before
indemnification is permitted under this Article, then, to the extent permitted
by law, for purposes of any determination under Section 3 of this Article, a
person shall be deemed to have acted in good faith if the action is based on (a)
the records or books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties or on (b) the advice of legal
counsel for the Corporation or another enterprise, or on information or records
given or reports made to the Corporation or another enterprise by an independent
certified public accountant, independent financial adviser, appraiser or other
expert selected with reasonable care by the Corporation or the other enterprise.
The provisions of this Section 4 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met any
applicable standard of conduct.
SECTION 5. Proceedings Initiated by Indemnified Persons;
Settlements.
(a) Notwithstanding any provisions of this Article to the
contrary, the Corporation shall not indemnify any person or make advance
payments in respect of Losses to any person pursuant to this Article in
connection with any Proceeding (or portion thereof) initiated against the
Corporation by such person unless such Proceeding (or portion thereof) is
authorized by the Board of Directors or its designee; provided, however, that
this prohibition shall not apply to a compulsory counterclaim, cross-claim or
third-party claim brought in any
15
Proceeding or to the extent required by Section 7 of this Article in connection
with a suit to enforce a claim for indemnification or advancement of expenses
under this Article.
(b) Notwithstanding any provisions of this Article to the
contrary, the Corporation shall not be required to indemnify any person pursuant
to this Article in respect of amounts paid in settlement of any Proceeding
effected without the written consent of the Corporation. The Corporation shall
not unreasonably withhold or delay its consent to any proposed settlement.
SECTION 6. Expenses Payable In Advance. Expenses (including
attorneys' and other professionals' fees) reasonably incurred by a present
officer or director in defending any threatened or pending Proceeding shall be
paid by the Corporation in advance of the final disposition of such Proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article.
Expenses shall be reasonably documented by the officer or director and required
payments shall be made promptly by the Corporation. Expenses (including
attorneys' and other professionals' fees) reasonably incurred by former
directors and officers or other employees and agents in defending any threatened
or pending Proceeding may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate.
SECTION 7. Suits Seeking to Enforce Right to Indemnification or
Advancement of Expenses. If a claim under Section 1 or under the first sentence
of Section 6 of this Article is not paid in full by the Corporation within
thirty (30) days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
enforce his or her right to indemnification or advancement of expenses, as the
case may be, and if successful in whole or in part, the claimant shall be
entitled to be paid also the reasonable expenses (including attorney's and other
professionals' fees) of prosecuting such suit. It shall be a defense to any such
suit seeking to enforce a right to indemnification (but not to a suit seeking to
enforce a right to advancement of expenses) that the claimant has not met any
applicable standard of conduct required by Delaware Law for the Corporation to
indemnify such claimant, but the burden of proving such defense shall be on the
Corporation. In any suit brought by a claimant to enforce a right to
indemnification or to advancement of expenses under this Section 7, or brought
by the Corporation to recover an advancement of expenses to any person (whether
pursuant to an undertaking or otherwise), the burden of proving that the
claimant or other person to whom expenses were advanced is not entitled to be
indemnified or to such advancement of expenses, shall be on the Corporation.
SECTION 8. Non-exclusivity and Survival of Indemnification.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, any By-Law, agreement, contract, vote of
Stockholders or of disinterested directors, or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise. The
provisions of this Article shall not be deemed to preclude the indemnification
of any person
16
who is not specified in Section 1 or 2 of this Article but whom the Corporation
has the power or obligation to indemnify under the provisions of Delaware Law,
or otherwise. The rights to indemnification conferred by this Article shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of such person and the heirs, executors, administrators and
other comparable legal representatives of such person. The rights conferred in
this Article shall be enforceable as contract rights, and shall continue to
exist after any rescission or restrictive modification hereof with respect to
events occurring prior thereto. No rights are conferred in this Article for the
benefit of any person (including, without limitation, officers, directors and
employees of subsidiaries of the Corporation) in any capacity other than as
explicitly set forth herein.
SECTION 9. Meaning of certain terms in connection with
Employee Benefit Plans, etc. For purposes of this Article, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; references to "serving at the request of the Corporation" shall
include any service as a director, officer or employee of the Corporation which
imposes duties on, or involves services by, such director, officer or employee,
with respect to an employee benefit plan, its participants or beneficiaries; and
a person who has acted in good faith and in a manner reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article.
SECTION 10. Insurance. The Corporation may, but shall not be
required to, purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, member,
employee, fiduciary or agent of another 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 or the obligation to indemnify such person against such
liability under the provisions of this Article.
Dated: _________ ___, 1999.
17