EX 3.3
BOLLE INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
BY-LAWS
ARTICLE I
OFFICES
The registered office of Bolle Inc. (the "Corporation") in Delaware
shall be at 1013 Centre Road in the City of Wilmington, County of New Castle,
in the State of Delaware, and Corporation Service Company shall be the
registered agent of this Corporation in charge thereof. The Corporation may
also have such other offices at such other places, within or without the State
of Delaware, as the Board of Directors may from time to time designate or the
business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Subject to change by resolution
of the Board of Directors, the annual meeting of the Stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other business as may be brought before the meeting shall be held on the
___ day of ___ of each year, or as soon after such date as may be practicable.
If said day be a legal holiday, said meeting shall be held on the next
succeeding business day. The meeting may be held at such time and such place
within or without the State of Delaware as shall be fixed by the Board of
Directors and stated in the notice of the meeting. At the annual meeting any
business may be transacted and any corporate action may be taken, whether
stated in the notice of meeting or not, except as otherwise expressly provided
by statute or the Certificate of Incorporation.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
stockholders for any purpose may be called at any time by a majority of the
Board of Directors, by the Chairman of the Board, or by the President, and
shall be called by the Chairman of the Board or by the President at the request
of the holders of a majority of the outstanding shares of capital stock
entitled to vote. Special meetings shall be held at such place or places within
or without the State of Delaware as shall from time to time be designated by
the Board of Directors and stated in the notice of such meeting. At a special
meeting no business shall be
transacted and no corporate action shall be taken other than that stated in the
notice of the meeting.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise expressly
required by law or the Certificate of Incorporation of the Corporation, written
notice stating the place and time of the meeting and the purpose or purposes of
such meeting, shall be given by the Secretary to each stockholder entitled to
vote thereat, by personal delivery or by mailing the same to him at his address
as it appears on the records of the Corporation not less than ten (10) nor more
than sixty (60) days prior to the meeting. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy; and if any stockholder shall, in
person or by attorney thereunto duly authorized, waive notice of any meeting,
in writing or by telephone or facsimile, whether before or after such meeting
be held, the notice thereof need not be given to him. The attendance of any
stockholder at a meeting, in person or by proxy, without protesting prior to
the conclusion of the meeting the lack of notice of such meeting, shall
constitute a waiver of notice by him. Notice of any adjourned meeting of
stockholders need not be given except as provided in Section 5 of this Article
II.
SECTION 4. QUORUM. Any number of stockholders, together
holding at least a majority of the capital stock of the Corporation issued and
outstanding and entitled to vote, who shall be present in person or represented
by proxy at any meeting duly called, shall constitute a quorum for the
transaction of all business, except as otherwise provided by law, by the
Certificate of Incorporation or by these By-Laws. Where a separate vote by a
class or classes is required, a majority of the outstanding shares of such
class or classes, present in person or represented by proxy, shall constitute a
quorum entitled to take action with respect to that vote on that matter and the
affirmative vote of the majority of shares of such class or classes present in
person or represented by proxy at the meeting shall be the act of such class.
SECTION 5. ADJOURNMENT. At any meeting of stockholders,
whether or not there shall be a quorum present, the holders of a majority of
the shares voting at the meeting, whether present in person at the meeting or
represented by proxy at the meeting, may adjourn the meeting from time to time.
Except as provided by law, notice of such adjourned meeting need not be given
otherwise than by announcement of the time and place of such adjourned meeting
at the meeting at which the adjournment is taken. At any adjourned meeting at
which a quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally called.
SECTION 6. CONDUCT. The Chairman of the Board or, in his
absence or non-election, the Vice Chairman or, in his absence or non-election,
the President or, in the absence of both the
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foregoing officers, a Vice President shall call meetings of the stockholders to
order and shall act as Chairman of such meetings. In the absence of all of the
foregoing officers, holders of a majority in number of the shares of the
capital stock of the Corporation present in person or represented by proxy and
entitled to vote at such meeting shall elect a Chairman, who may be the
Secretary of the Corporation. To the maximum extent permitted by the law, such
presiding person shall have the power to set procedural rules, including but
not limited to rules respecting the time allotted to allow shareholders to
speak, governing all aspects of the conduct of such meetings. The Secretary of
the Corporation shall act as secretary of all meetings of the stockholders; but
in the absence of the Secretary, the Chairman may appoint any person to act as
secretary of the meeting.
SECTION 7. VOTING. Each stockholder shall, except as
otherwise provided by law or by the Certificate of Incorporation, at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of capital stock entitled to vote held by such stockholder, but no
proxy shall be voted on after three years from its date, unless said proxy
provides for a longer period. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors. Any other action shall be
authorized by a vote of a majority of the votes cast except where the General
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power, and except as may be otherwise prescribed by the
provisions of the Certificate of Incorporation and these By-Laws.
SECTION 8. STOCKHOLDERS LIST. The officer of the Corporation
who has charge of the stock ledger of the Corporation shall prepare and make a
complete list of the stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order with the address of each and the
number of shares held by each, which 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 (10) 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 thereof and may be inspected
by any stockholder who is present. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the
ledger, the list required by this Section 8 of Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 9. ADDRESS OF STOCKHOLDERS. Each stockholder shall
designate to the Secretary of the Corporation an address at
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which notices of meetings and all other corporate notices may be served upon or
mailed to him, and if any stockholder shall fail to designate such address,
corporate notices may be served upon him by mail directed to him at his last
known post office address.
SECTION 10. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. 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, to express consent to corporate action in writing without a meeting,
to receive payment of any dividend or other distribution or allotment of any
rights, to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date which shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, nor more than sixty
days (60) prior to any other action, and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of
and to vote at such meeting and any adjournment thereof, to express consent to
any such corporate action, to receive payment of such dividend or to receive
such allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. If the stock transfer books are to be
closed for the purpose of determining stockholders entitled to notice of or to
vote at a meeting in the case of a merger or consolidation, the books shall be
closed at least twenty days before such meeting.
SECTION 11. INSPECTORS OF ELECTION. The Board of Directors
may at any time appoint one or more persons to serve as Inspectors of Election
at the next succeeding annual meeting of stockholders or at any other meeting
or meetings and the Board of Directors may at any time fill any vacancy in the
office of Inspector. If the Board of Directors fails to appoint Inspectors or
this office becomes vacant and is not filled by the Board of Directors, the
Chairman of any meeting of the stockholders may appoint one or more temporary
Inspectors for such meeting. All proxies shall be filed with the Inspectors for
such meeting. All proxies shall be filed with the Inspectors of Election of the
meeting before being voted upon.
SECTION 12. ACTION BY CONSENT. Unless otherwise provided in
the Certificate of Incorporation or restricted by the rules of the National
Association of Securities Dealers, Inc., any action required to be taken at any
meeting of stockholders, or any action which may be taken at any meeting of
such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, 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 entitled to vote thereon were
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present and voted and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing. Action taken pursuant
to this paragraph shall be subject to the provisions of Section 228 of the
General Corporation Law.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The property, affairs and business
of the Corporation shall be managed by or under the direction of the Board of
Directors. Any business may be transacted and any corporate action may be taken
at any regular or special meeting of the Board of Directors at which a quorum
shall be present, whether such business or proposed action be stated in the
notice of such meeting or not, unless special notice of such business or
proposed action shall be required by statute. The Board of Directors shall have
the power and authority to authorize the officers of the Corporation to enter
into such agreements as the Board of Directors shall deem appropriate including
the power and authority to authorize the seal of the Corporation to be affixed
to all papers that may require it.
SECTION 2. NUMBER, QUALIFICATION AND TERM OF OFFICE. The
number of directors shall be at least two and not more than twelve, except as
may otherwise be provided in the Certificate of Incorporation of the
Corporation. Directors need not be stockholders. The directors shall be elected
by the stockholders at the annual meeting of stockholders. Each director chosen
at an annual meeting shall, except as hereinafter provided, hold office until
the next annual election and until his successor shall have been elected and
shall qualify, or until his death or until he shall resign or shall have been
removed in the manner hereinafter provided. The Chairman of the Board, if one
be elected, and the Vice Chairman of the Board, if one be elected, shall be
chosen from among the directors. The number of directors may be increased or
decreased by action of the directors.
SECTION 3. QUORUM AND MANNER OF ACTION. Except as otherwise
provided by law or these By-Laws, a majority of the entire Board of Directors
shall be required to constitute a quorum for the transaction of business at any
meeting. At any meeting at which a quorum is present, the vote of a majority of
the members present shall be the act of the Board of Directors unless the act
of a greater number is specifically required by
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law or by the Certificate of Incorporation or these By-Laws. In the absence of
a quorum, a majority of the directors present may adjourn any meeting from time
to time until a quorum be had. Notice of any adjourned meeting need not be
given. The directors shall act only as a board and individual directors shall
have no power as such.
SECTION 4. NOTICE AND PLACE OF MEETINGS. The Board of
Directors may hold its meetings, have one or more offices and keep the books
and records of the Corporation at such place or places within or without the
State of Delaware as the Board may from time to time determine or as shall be
specified or fixed in the respective notices or waivers of notice thereof.
Notice of any special meeting, and, except as the Board of Directors may
otherwise determine by resolution, notice of any regular meeting also, shall be
mailed to each director addressed to him at his residence or usual place of
business at least three days before the day on which the meeting is to be held,
or if delivered to him personally, or transmitted by telecopies, overnight
mail, telegraph, cable, wireless, telephone or orally, not later than
twenty-four hours before the day on which the meeting is to be held. No notice
of the annual meeting of the Board of Directors shall be required if it is held
immediately after the annual meeting of the stockholders and if a quorum is
present.
SECTION 5. REGULAR MEETINGS. A regular meeting of the Board
of Directors shall be held for the election of officers and the transaction of
other business as soon as practicable after each annual meeting of
stockholders, and other regular meetings of said Board shall be held at such
times and places as said Board shall direct.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors or by the
President.
SECTION 7. ACTION BY CONSENT. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting, if a written consent thereto is signed by all
members of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
SECTION 8. CONDUCT. At each meeting of the Board of
Directors, the Chairman of the Board or in his absence, the Vice Chairman of
the Board, or in his absence, the President, or in his absence or non-election,
a director chosen by a majority of the directors present shall act as Chairman.
The Secretary or, in his absence, an Assistant Secretary or, in the absence of
both the Secretary and an Assistant Secretary, any person appointed by the
Chairman shall act as Secretary of the meeting.
SECTION 9. RESIGNATIONS. Any director of the Corporation may
resign at any time by giving written notice to
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the Board of Directors, the President or the Secretary of the Corporation. The
resignation of any director shall take effect at the time specified therein;
and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 10. REMOVAL OF DIRECTORS. Except as otherwise
provided by law, any director may be removed with or without cause, by the
affirmative vote of a majority of the shares of capital stock entitled to vote,
either by written consent or by consents or at any special meeting of the
stockholders called for that purpose, and the office of such director shall
forthwith become vacant.
SECTION 11. VACANCIES. Any vacancy in the Board of Directors
caused by death, resignation, removal, disqualification, an increase in the
number of directors or any other cause shall be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, provided, however, that the stockholders removing any director may at
the same meeting fill the vacancy caused by such removal, and provided,
further, that if the directors fail to fill any such vacancy, the stockholders
may at any special meeting called for that purpose fill such vacancy. Directors
chosen in accordance with this Section 11 of Article III shall hold office
until the next annual election of directors and until their successors are duly
elected and qualified, or until their earlier resignation or removal.
SECTION 12. COMPENSATION OF DIRECTORS. The directors shall
not receive any stated salary for their services as directors. However,
directors may receive such reasonable sums for their services and expenses as
may be directed by resolution of the Board; provided that nothing herein
contained shall be construed to 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 their
services and expenses.
SECTION 13. PARTICIPATION IN MEETINGS. Members of the Board
of Directors or of any committee may participate in any meeting of the Board or
committee, as the case may be, 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 14. INTERESTED DIRECTORS. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association, or
other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
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is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted by such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee
thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate two or more of
their number to constitute an Executive Committee to hold office at the
pleasure of the Board, which Committee shall, during the intervals between
meetings of the Board of Directors, have and exercise all of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, subject only to such restrictions or limitations as the Board of
Directors may from time to time specify, or as limited by the Delaware
Corporation Law, and shall have power to authorize the seal of the Corporation
to be affixed to all papers which may require it.
Any member of the Executive Committee may be removed at any time, with or
without cause, by a resolution of a majority of the whole Board of Directors.
Any person ceasing to be a director shall ipso facto cease to be a member of
the Executive Committee.
Any vacancy in the Executive Committee occurring from any cause whatsoever may
be filled from among the directors by a resolution of a majority of the whole
Board of Directors.
SECTION 2. AUDIT COMMITTEE. The Board of Directors shall, by
resolution passed by a majority of the whole Board,
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designate two or more of their number to constitute an Audit Committee.
Any member of the Audit Committee may be removed at any time, with or without
cause, by a resolution of a majority of the whole Board of Directors.
Any person ceasing to be a director shall ipso facto cease to be a member of
the Executive Committee.
Any vacancy in the Audit Committee occurring from any cause whatsoever may be
filled from among the directors by a resolution of a majority of the whole
Board of Directors.
SECTION 3. OTHER COMMITTEES. Other committees, whose members
need not be directors, may be appointed by the Board of Directors or the
Executive Committee, which committees shall hold office for such time and have
such powers and perform such duties as may from time to time be assigned to
them by the Board of Directors or the Executive Committee.
Any member of such a committee may be removed at any time, with or without
cause, by the Board of Directors or the Executive Committee. Any vacancy in a
committee occurring from any cause whatsoever may be filled by the Board of
Directors or the Executive Committee.
SECTION 4. RESIGNATION. Any member of a committee may resign
at any time. Such resignation shall be made in writing and shall take effect at
the time specified therein, or, if no time be specified, at the time of its
receipt by the President or Secretary. The acceptance of a resignation shall
not be necessary to make it effective unless so specified therein.
SECTION 5. QUORUM. A majority of the members of a committee
shall constitute a quorum. The act of a majority of the members of a committee
present at any meeting at which a quorum is present shall be the act of such
committee. The members of a committee shall act only as a committee, and the
individual members thereof shall not have any powers as such.
SECTION 6. RECORD OF PROCEEDINGS, ETC. Each committee shall
keep a record of its acts and proceedings, and shall report the same to the
Board of Directors when and as required by the Board of Directors.
SECTION 7. ORGANIZATION, MEETINGS, NOTICES, ETC. A committee
may hold its meetings at the principal office of the Corporation, or at any
other place which a majority of the committee may at any time agree upon. Each
committee may make such rules as it may deem expedient for the regulation and
carrying on of its meetings and proceedings. Unless otherwise ordered by the
Executive Committee, any notice of a meeting of
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such committee may be given by the Secretary of the Corporation or by the
chairman of the committee and shall be sufficiently given if mailed to each
member at his residence or usual place of business at least two days before the
day on which the meeting is to be held, or if sent to him by telegraph, cable,
wireless, telephone or orally not later than twenty-four hours before the time
at which the meeting is to be held.
SECTION 8. COMPENSATION. The members of any committee shall
be entitled to such compensation as may be allowed them by resolution of the
Board of Directors.
ARTICLE V
OFFICERS
SECTION 1. NUMBER. The officers of the Corporation shall be a
Chairman of the Board, a Vice Chairman of the Board, a Chief Executive Officer,
a Chief Financial Officer and a Secretary. In addition, the Board may elect one
or more Vice Presidents, Treasurers, Assistant Treasurers, Assistant
Secretaries 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, as the directors may determine.
SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The
officers, except as provided in Section 3 of this Article V, shall be elected
annually by the Board of Directors at their first meeting after each annual
meeting of the stockholders of the Corporation. Each officer, except such
officers as may be appointed in accordance with the provisions of Section 3 of
this Article V, shall hold office until his successor shall have been duly
elected and qualified, or until his death or until he shall have resigned or
shall have become disqualified or shall have been removed in the manner
hereinafter provided.
SECTION 3. SUBORDINATE OFFICER. The Board of Directors or the
Chief Executive Officer may from time to time appoint such other officers
(including, without limitation, a Treasurer, Assistant Treasurers, or Assistant
Secretaries), and such agents and employees of the Corporation as may be deemed
necessary or desirable. Such officers, agents and employees shall hold office
for such period and upon such terms and conditions, have such authority and
perform such duties as provided in these By-Laws or as the Board of Directors
or the Chief Executive Officer may from time to time prescribe. The Board of
Directors or the Chief Executive Officer may from time to time authorize any
officer to appoint and remove agents and employees and to prescribe the powers
and duties thereof.
SECTION 4. REMOVAL. Any officer of the Corporation may be
removed, either with or without cause, by the affirmative vote of a majority of
the Board of Directors.
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SECTION 5. RESIGNATIONS. Any officer may resign at any time
by giving written notice to the Board of Directors, the Chief Executive Officer
or the Secretary. Any such resignation shall take effect at the date of receipt
of such notice or at any later time specified therein; and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 6. VACANCIES. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be
filled for the unexpired portion of the term in the manner prescribed in these
By-Laws for regular election or appointment to such office.
SECTION 7. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall be the Chief Executive Officer of the Corporation and shall preside, if
present, at all meetings of the stockholders and shall preside, if present, at
all meetings of the stockholders and at all meetings of the Board of Directors
and shall perform such other duties and have such other powers as from time to
time may be assigned by the Board of Directors or prescribed by these By-Laws.
SECTION 8. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of
the Board shall, at the request of the Chairman of the Board or in his absence
or disability, perform the duties of the Chairman of the Board and when so
acting shall, have all the powers of, and be subject to all restrictions upon,
the Chairman of the Board and shall perform such other duties and have such
other powers as from time to time may be assigned to him by the Chairman of the
Board or prescribed by these By-Laws.
SECTION 9. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall have general direction of the affairs of the Corporation and
general supervision over its several officers, subject, however, to the control
of the Board of Directors, and in general shall perform such duties and,
subject to the other provisions of these By-Laws, have such powers incident to
the office of Chief Executive Officer and perform such other duties and have
such other powers as from time to time may be assigned to him by the Board of
Directors.
SECTION 10. CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall be responsible to the Board of Directors and the Chief Executive
Officer for all financial control and internal audit of the Corporation and its
subsidiaries. He shall perform such other duties as may be assigned to him by
the Board of Directors, the Chief Executive Officer or prescribed by these
By-Laws, and shall be responsible to a designated Vice President only for the
routine administrative matters pertaining to the duties of his office. The
Chief Financial Officer shall, in the absence of an appointed Treasurer,
perform the duties and functions of the Treasurer.
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SECTION 11. VICE PRESIDENT. A Vice President may sign with
the Chief Financial Officer or the Secretary or an Assistant Secretary
certificates of stock of the Corporation and shall have such other powers and
shall perform such other duties as from time to time may be assigned to him by
the Board of Directors or the Chief Executive Officer or prescribed by these
By-Laws.
SECTION 12. SECRETARY. The Secretary shall keep or cause to
be kept, in books provided for the purpose, the minutes of the meetings of the
stockholders, the Board of Directors and any committee when so required, shall
see that all notices are duly given in accordance with the provisions of these
By-Laws and as required by law, shall be custodian of the records and the seal
of the Corporation and see that the seal is affixed to all documents, the
execution of which on behalf of the Corporation under its seal is duly
authorized in accordance with the provisions of these By-Laws, shall keep or
cause to be kept a register of the post office address of each stockholder, may
sign with the Chairman of the Board, the Chief Executive Officer or any Vice
President certificates of stock of the Corporation, and in general shall
perform such duties and have such powers incident to the office of Secretary
and shall perform such other duties and have such other powers as from time to
time may be assigned to him by the Board of Directors or the Chief Executive
Officer or prescribed by these By-Laws.
SECTION 13. ASSISTANT SECRETARY. Any Assistant Secretary
shall, at the request of the Secretary or in his absence or disability, perform
the duties of the Secretary and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the Secretary and shall perform
such other duties and have such other powers as from time to time may be
assigned to him by the Chief Executive Officer, the Secretary or the Board of
Directors or prescribed by these By-Laws.
SECTION 14. TREASURER. The Treasurer, if any, shall have
charge and custody of, and be responsible for, all funds and securities of the
Corporation, and deposit all such funds in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of these By-Laws, shall at all reasonable times exhibit his
books of account and records, and cause to be exhibited the books of account
and records of any corporation controlled by the Corporation to any of the
directors of the Corporation upon application during business hours at the
office of the Corporation, or such other corporation, where such books and
records are kept, shall, if called upon to do so, receive and give receipts for
monies due and payable to the Corporation from any source whatsoever, may sign
with the Chairman of the Board, the Chief Executive Officer or any Vice
President certificates of stock of the Corporation, and in general shall
perform such duties and have such powers incident to the office of Treasurer
and such other duties and have such other powers as from time to
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time may be assigned to him by the Board of Directors or the Chief Executive
Officer or prescribed by these By-Laws.
SECTION 15. ASSISTANT TREASURER. Any Assistant Treasurer
shall, at the request of the Treasurer or in his absence or disability, perform
the duties of the Treasurer and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the Treasurer and shall perform
such duties and have such other powers as from time to time may be assigned to
him by the Chief Executive Officer, the Treasurer or the Board of Directors or
prescribed by these By-Laws.
SECTION 16. OTHER OFFICERS. Such officers as the Board of
Directors may choose shall perform such duties and have such powers as may be
appropriate to such officer or as from time to time may be assigned to them by
the Board of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
SECTION 17. COMPENSATION. The compensation of the officers
shall be fixed from time to time by the Board of Directors, or by any committee
upon whom power in that regard may be conferred by the Board of Directors. No
officer shall be prevented from receiving such compensation by reason of the
fact that he is also a director of the Corporation.
SECTION 18. AUTHORITY OF OFFICERS. The officers of the
Corporation shall have such duties and authority as set forth in these By-Laws
and as shall be determined from time to time by the Board of Directors.
ARTICLE VI.
CAPITAL STOCK
SECTION 1. ISSUE OF CERTIFICATES OF STOCK. Certificates for
shares of the capital stock of the Corporation shall be in such form not
inconsistent with law as shall be approved by the Board of Directors. They
shall be numbered in order of their issue and shall be signed by the Chairman
of the Board or the Chief Executive Officer or any Vice President and the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary of the Corporation, and the seal of the Corporation or a facsimile
thereof shall be impressed or affixed or reproduced thereon, provided, however,
that where such certificates are signed by a transfer agent or an assistant
transfer agent or by a transfer clerk acting on behalf of the Corporation and a
registrar, the signature of any such Chairman of the Board, Chief Executive
Officer, Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary may be facsimile. In case any officer, transfer agent or registrar
who shall have signed or whose facsimile signature shall have been placed upon
any such certificate or certificates shall cease to be such officer or officers
of the Corporation, whether because
13
of death, resignation or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or certificates
may nevertheless be adopted by the Corporation and be issued and delivered as
though the person or persons who signed such certificate or certificates or
whose facsimile signature shall have been used thereon had not ceased to be
such officer or officers of the Corporation.
SECTION 2. UNCERTIFIED SHARES. Subject to any conditions
imposed by the Delaware General Corporation Law, 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 the stock of the Corporation shall be uncertified
shares. Within a reasonable time after the issuance or transfer of any
uncertified shares, the Corporation shall send to the registered owner thereof
any written notice prescribed by the General Corporation Law.
SECTION 3. FRACTIONAL SHARE INTERESTS. The Corporation may,
but shall not be required to, issue fractions of a share. If the Corporation
does not issue fractions of a share, it shall (i) arrange for the disposition
of fractional interests by those entitled thereto, (2) 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 (3) issue scrip or warrants in registered
form (either represented by a certificate or uncertificated) or bearer form
(represented by a certificate) which shall entitle the holder to receive a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated fractional share shall,
but scrip or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of
liquidation. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing the full shares or uncertificated full shares before
a specified date, or subject to the conditions that the shares for which scrip
or warrants are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other conditions which the Board of Directors may impose.
SECTION 4. REGISTRATION AND TRANSFER OF STOCK. The shares of
capital stock of the Corporation shall be issued in registered form. The name
of each person owning a share of the capital stock of the Corporation shall be
entered on the books of the Corporation together with the number of shares held
by him, the numbers of the certificates covering such shares and the dates of
issue of such certificates. The shares of stock of the Corporation shall be
transferable on the books of the Corporation by the holders thereof in person,
or by their duly authorized attorneys or legal representatives, on surrender
and cancellation
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of certificates for a like number of shares, accompanied by an assignment or
power of transfer endorsed thereon or attached thereto, duly executed, and with
such proof of the authenticity of the signature as the Corporation or its
agents may reasonably require. A record shall be made of each transfer. A
person in whose name shares of stock stand on the books of the Corporation
shall be deemed the owner thereof as regards the Corporation, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by the
laws of the State of Delaware.
SECTION 5. LOST, STOLEN AND DESTROYED CERTIFICATES. The
holder of any stock issued by the Corporation shall immediately notify the
Corporation of any loss, theft, or destruction of the certificate therefor or
the failure to receive a certificate of stock issued by the Corporation, and
the Board of Directors or the Secretary of the Corporation may, in its or his
discretion, cause to be issued to such holder a new certificate or certificates
of stock, upon compliance with such rules, regulations and/or procedures as may
be prescribed or have been prescribed by the Board of Directors with respect to
the issuance of new certificates in lieu of such lost, stolen or destroyed
certificate or certificates of stock issued by the Corporation which are not
received. The Board of Directors or the Secretary of the Corporation may, in
its or his discretion, require the owner of the lost, stolen or destroyed
certificate, or his legal representatives, to give the Corporation a bond, in
such sum not exceeding double the value of the stock and with such surety or
sureties as they may require, to indemnify it against any claim that may be
made against it by reason of the issue of such new certificate and against all
other liability in the premises, or may remit such owner to such remedy or
remedies as he may have under the laws of the State of Delaware.
SECTION 6. TRANSFER AGENT AND REGISTRAR; REGULATIONS. The
Corporation shall, if and whenever the Board of Directors shall so determine,
maintain one or more transfer offices or agencies, each in the charge of a
transfer agent designated by the Board of Directors, where the shares of the
capital stock of the Corporation shall be directly transferable, and also one
or more registry offices, each in the charge of a registrar designated by the
Board of Directors, where such shares of stock shall be registered, and no
certificate for shares of the capital stock of the Corporation, in respect of
which a Registrar and/or Transfer Agent shall have been designated, shall be
valid unless countersigned by such Transfer Agent and registered by such
Registrar, if any. The Board of Directors shall also make such additional rules
and regulations as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of the capital stock of the
Corporation.
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SECTION 7. BENEFICIAL OWNERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
SECTION 8. STOCKHOLDER APPROVALS. Except as otherwise
expressly required by law, any stock option or purchase plan pursuant to which
stock may be acquired by officers or directors of the Company must be approved
by the affirmative vote of a majority of the outstanding shares entitled to
vote thereon, provided that, where such option or purchase plan applies
generally to security holders of the Company or broadly to other employees of
the Company, stockholder approval shall not be required.
ARTICLE VII
DIVIDENDS, SURPLUS, ETC.
SECTION 1. GENERAL DISCRETION TO DIRECTORS. The Board of
Directors shall have power to fix and vary the amount to be set aside or
reserved as working capital of the Corporation, or as reserves, or for other
proper purposes of the Corporation, and, subject to the requirements of the
Certificate of Incorporation, to determine whether any, if any, part of the
surplus or net profits of the Corporation shall be declared as dividends and
paid to the stockholders, and to fix the date or dates for the payment of
dividends.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation
shall commence on the first day of January and end on the last day of December.
SECTION 2. NOTICE. Except as otherwise expressly provided,
any notice required by these By-Laws to be given shall be sufficient if given
by depositing the same in a post office or letter box in a sealed postpaid
wrapper addressed to the person entitled thereto at his address, as the same
appears upon the books of the Corporation, or by telegraphing or cabling the
same to such person at such addresses; and such notice shall be deemed to be
given at the time it is mailed, telegraphed or cabled.
SECTION 3. WAIVERS OF NOTICE. Whenever any notice of any
nature is required by law, the provisions of the Certificate of Incorporation
or these By-Laws to be given, a waiver thereof in writing, signed by the person
or persons entitled to said
16
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
SECTION 4. QUALIFYING IN FOREIGN JURISDICTION. The Board of
Directors shall have the power at any time and from time to time to take or
cause to be taken any and all measures which they may deem necessary for
qualification to do business as a foreign corporation in any one or more
foreign jurisdictions and for withdrawal therefrom.
SECTION 5. PROXIES. Except as otherwise provided in these
By-Laws or in the Certificate of Incorporation of the Corporation, and unless
otherwise provided by resolution of the Board of Directors, the Chairman of the
Board may appoint from time to time an attorney or attorneys, or agent or
agents, of the Corporation, on behalf and in the name of the Corporation, to
cast the votes which the Corporation may be entitled to cast as a stockholder
or otherwise in any other corporation any of whose stock or other securities
may be held by the Corporation, at meetings of the holders of the stock or
other securities of such other corporation, or to consent in writing to any
action by such other corporation, and may instruct the person or persons so
appointed as to the manner of casting such votes or giving such consent, and
may execute or cause to be executed on behalf and in the name of the
Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the
premises.
SECTION 6. CORPORATE SEAL. The Board of Directors shall
provide a suitable seal containing the name of the Corporation, which seal
shall be in the charge of the Secretary and which may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or otherwise. If
and when so directed by the Board of Directors, a duplicate of the seal may be
kept and be used by an officer of the Corporation designated by the Board.
SECTION 7. DISBURSEMENTS. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the Corporation, shall be signed by such officer or officers, agent
or agents of the Corporation, and in such manner, as shall from time to time be
designated by resolution of the Board of Directors.
SECTION 8. DEPOSITS. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such bank or
banks, trust companies or other depositories as the Board of Directors may
select, and, for the purpose of such deposit, checks, drafts, warrants and
other orders for the payment of money which are payable to the order of the
Corporation, may be endorsed for deposit, assigned and delivered by any officer
of the Corporation, or by such agents of the Corporation as the Board of
Directors or the Chairman of the Board may authorize for that purpose.
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ARTICLE IX
INDEMNIFICATION
SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR
PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to
Section 3 of this Article IX, the Corporation shall indemnify any person (to
the full extent permitted by the laws of the State of Delaware, as amended from
time to time) 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
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, employee benefit plan, or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding 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.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR
PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this
Article IX, the Corporation shall indemnify 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, proceeding or claim 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, employee benefit plan or other
enterprises against expenses (including attorney's fees and expenses) actually
and reasonably incurred by him and to the extent permitted by applicable law in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation; except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
18
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnification for such expenses and amounts
which the Court of Chancery or such other court shall deem proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any
indemnification under this Article IX (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article IX, as the case may be. Such
determination and determinations under Section 5 or 6 of this Article IX shall
be made (i) by the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, or (ii)
if such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent, however, that a director
or officer, employee or agent of the Corporation has been successful on the
merits or otherwise in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees and expenses)
actually and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
SECTION 4. GOOD FAITH DEFINED.
(a) For purposes of any determination under Section 3 of
this Article IX, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of 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 account or by an appraiser or other expert selected with reasonable care
by the Corporation or another enterprise. The term "another enterprise" as used
in this Section 4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of the Corporation as a director, officer,
agent or employee.
(b) References in this Article IX to "penalties" include
any excise taxes assessed on a person with respect to an employee benefit plan;
references in this Article IX to "serving at the request of the Corporation"
include any service as a director or officer (or if appropriate an employee or
agent) or
19
former director or officer (or if appropriate a former employee or agent) of
the Corporation which imposes duties on, or involves services by, such person
with respect to an employee benefit plan or its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the participants or beneficiaries
of such an employee benefit plan shall be deemed to have acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation.
(c) The provisions of this Section 4 shall not be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in Sections 1
or 2 of this Article IX, as the case may be.
SECTION 5. INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION; ETC. Except as otherwise provided in the proviso to Section 2 of
this Article IX:
(d) Any indemnification under Section 1 or 2 of this
Article IX shall be made no later than 45 days after receipt by the Corporation
of the written request by the director, officer, employee or agent or the
former director, officer, employee or agent, unless a determination is made
within said 45-day period in accordance with Section 3 of this Article IX that
such person has not met the applicable standard of conduct set forth in Section
1 or 2 of this Article IX.
(e) The right to indemnification under Section 1 or 2 of
this Article IX or advances under Section 6 of this Article IX shall be
enforceable by the director, officer, employee or agent or former director,
officer, employee or agent in any court of competent jurisdiction. The burden
of proving that indemnification is not appropriate shall be on the Corporation.
Neither the absence of any prior determination that indemnification is proper
in the circumstances, nor a prior determination that indemnification is not
proper in the circumstance, shall be a defense to the action or create a
presumption that the director or officer, or former director or officer, has
not met the applicable standard of conduct. The expenses (including attorneys'
fees and expenses) incurred by the director, officer, employee or agent in
connection with successfully establishing his right to indemnification, in
whole or in part, in any such action (or in any action or claim brought by him
to recover under any insurance policy or policies referred to in Section 9 of
this Article IX) shall also be indemnified by the Corporation.
(f) If any person is entitled under any provision of
this Article IX to indemnification by the Corporation for some or a portion of
expenses, judgments, fines, penalties or amounts paid in settlement incurred by
him, but not, however, for the total amount thereof, the corporation shall
nevertheless
20
indemnify such person for the portion of such expense, judgments, fines,
penalties and amounts to which he is entitled.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses (including
attorneys' fees and expenses) incurred by an officer, director, employee or
agent or a former officer, director, employee or agent in defending a civil or
criminal action or investigating a threatened or pending action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors in
the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article IX; provided, however, that if he
seeks to enforce his rights in a court of competent jurisdiction pursuant to
Section 5(b) of this Article IX, said understanding to repay shall not be
applicable or enforceable unless and until there is a final court determination
that he is not entitled to indemnification as to which all rights of approval
have been exhausted or have expired.
SECTION 7. CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION.
Notwithstanding any other provision of this Article IX, no person shall be
entitled to indemnification under this Article IX or to advances under Section
6 of this Article IX with respect to any action, suit, proceeding or claim
brought or made by him against the Corporation, other than an action, suit,
proceeding or claim seeking, or defending such person's right to,
indemnification and/or expense advances pursuant to this Article IX or
otherwise.
SECTION 8. NON-EXCLUSIVITY AND SURVIVAL OF INDEMNIFICATION.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article IX shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office, it
being the policy of the Corporation that indemnification and expense advances
to the persons specified in Section 1 and 2 of this Article IX shall be made to
the fullest extent permitted by law and, accordingly, in the event of any
change in law, by legislation or otherwise, permitting greater indemnification
and/or expense advances to any such person, the provisions of this Article IX
shall be construed so as to require such greater indemnification and/or expense
advances. The provisions of this Article IX shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article IX but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of
21
Delaware, or otherwise. The indemnification and advancement of expenses
provided by or granted pursuant to this Article IX shall continue as to a
person who has ceased to be a director or officer (or if appropriate an
employee or agent) and shall inure to the benefit of the heirs, executors and
administrators of such person.
SECTION 9. INSURANCE. 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 is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power or the obligation to indemnify him against
such liability under the provisions of this Article IX or the provisions of
Section 145 of the General Corporation Law of the State of Delaware. The
Corporation shall not be obligated under this Article IX to make any payment in
connection with any claim made against any person if and to the extent that
such person has actually received payment therefore under any insurance policy
or policies.
SECTION 10. MEANING OF "CORPORATION" FOR PURPOSES OF ARTICLE
IX. For purposes of this Article IX, 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 another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article IX with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
SECTION 11. LIMITATION ON ACTIONS. No legal action shall be
brought and no cause of action shall be asserted by or on behalf of the
Corporation or any affiliate of the Corporation against any person who is or
was a director or officer of the Corporation after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of
action of the Corporation or its affiliates shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations
is otherwise applicable to any such shorter period shall govern.
SECTION 12. SEVERABILITY. The provisions of this Article IX
shall be severable in the event that any provision hereof (including any
provision within a single section,
22
subsection, clause, paragraph or sentence) is held invalid, void or otherwise
unenforceable on any ground by any court of competent jurisdiction. In the
event of any such holding, the remaining provisions of this Article IX shall
continue in effect and be enforceable to the fullest extent permitted by law.
ARTICLE X.
AMENDMENTS
These By-Laws may be altered, amended or repealed, in whole
or in part, or new By-Laws may be adopted by either the stockholders or by the
Board of Directors, provided, however, that notice of such alteration,
amendment, repeal or adoption of new By-Laws be contained in the notice of such
meeting of stockholders or Board of Directors, as the case may be. All such
amendments must be approved by either the holders of a majority of the
outstanding capital stock entitled to vote thereon or by a majority of the
entire Board of Directors then in office.
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