EXHIBIT 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 30th day of June 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 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
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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 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
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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 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
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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 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.
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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 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
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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 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
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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, designate two or more of
their number to constitute an Audit Committee.
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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 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
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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.
SECTION 5. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors, the
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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.
SECTION 11. VICE PRESIDENT. A Vice President may sign with the Chief
Financial Officer or the Secretary or an Assistant
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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 time may be
assigned to him by the Board of Directors or the Chief Executive Officer or
prescribed by these By-Laws.
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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 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
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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 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
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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.
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
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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 notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
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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
brought shall determine upon application that, despite the
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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 former director or officer (or if appropriate a former employee
19
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.