EXHIBIT 3.1
SPARTECH CORPORATION
BYLAWS
(As Amended and Restated March 7, 2006)
ARTICLE I
Offices
Section 1. The registered office of the corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. All meetings of the stockholders shall be held at such time and at
such place either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors or the officer calling the meeting
and stated in the notice of the meeting.
Section 2. An annual meeting of the stockholders shall be held on the second
Wednesday of March, or if that day is not a Business Day then on the next
Business Day following, at 10:00 a.m. or such other time as shall be designated
by the Board of Directors and stated in the notice of the meeting. At each
annual meeting, the stockholders shall elect directors and transact such other
business as may properly be brought before the meeting. "Business Day" means any
day other than Saturday or Sunday on which national banks are open generally and
which is a trading day on the New York Stock Exchange.
Section 3. At least ten days before every meeting of stockholders, the officer
who has charge of the stock ledger of the corporation shall prepare and make a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. The list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, for at
least ten days prior to the meeting, during ordinary business hours, at the
principal place of business of the corporation. The list shall also be produced
and kept at the time and place of the meeting during the entire meeting, and may
be inspected by any stockholder who is present.
Section 4. A special meeting of the stockholders may be called by the President
and Chief Executive Officer or by the Chairman of the Board for any purpose or
purposes. A special meeting of the stockholders shall be called by the President
and Chief Executive Officer or the secretary promptly upon the written request
of a majority of the directors or of stockholders owning a majority of the
issued and outstanding shares of capital stock of the corporation entitled to
vote a the meeting; such written request shall state the purpose or purposes of
the proposed meeting.
Section 5. Written notice of every meeting of the stockholders stating the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
Section 6. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 7. Except as otherwise provided by statute or by the certificate of
incorporation, the holders of a majority of the stock issued and outstanding and
entitled to vote at a meeting of the stockholders, present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at such meeting. If, however, a quorum shall not be present or represented at a
meeting, the stockholders entitled to vote at the meeting, present in person or
represented by proxy, shall have power to adjourn the meeting to a specified
date and time, without notice other than announcement at the meeting, from time
to time until a quorum shall be present or represented. At the adjourned
meeting, if a quorum shall then be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. However, if the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 8. When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before the meeting, unless the question
is one upon which, by express provisions of the statutes or of the certificate
of incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such question.
ARTICLE III
Directors
Number, Qualification, Term of Office
Section 1. The number of directors shall not be less than four nor more than 15,
the exact number of directors to be fixed from time to time only by the vote of
a majority of the entire Board. No decrease in the number of directors shall
shorten the term of any incumbent director.
The directors shall be divided into three classes: Class A, Class B and Class C.
Such classes shall be as nearly equal in number as possible. At each annual
election, the directors chosen to succeed those whose terms then expire shall be
identified as being of the same class as the directors they succeed and shall be
elected for a term expiring at the third succeeding annual meeting or thereafter
when their respective successors in each case are elected and have qualified. If
the number of directors is changed, any increase or decrease in directors shall
be apportioned among the classes so as to maintain all classes as nearly equal
in number as possible and any individual director elected to any class shall
hold office for a term which shall coincide with the term of such class.
The Board may, by the vote of a majority of the entire Board, prescribe
qualifications of candidates for the office of director of the Corporation, but
no director then in office shall be disqualified from office as a result of the
adoption of such qualifications.
Notwithstanding the foregoing, whenever the holders of any preferred stock
issued by the Corporation shall have the right, voting as a class or otherwise,
to elect directors at the annual meeting of stockholders, the then authorized
number of directors of the Corporation shall be increased by the number of the
additional directors so to be elected, and at such meeting the holder of such
preferred stock shall be entitled, as a class or otherwise, to elect such
additional directors. Any directors so elected shall hold office until the next
annual meeting of stockholders or until their rights to hold such office
terminate pursuant to the provisions of such preferred stock, whichever is
earlier. The provisions of this paragraph shall apply notwithstanding the
maximum number of directors hereinabove set forth.
Removal of Directors
Section 2. Directors of the Corporation may be removed solely in accordance with
the provisions of Article FOURTEENTH of the Certificate of Incorporation.
Vacancies
Section 3. If the office of any director becomes vacant at any time by reason of
death, resignation, retirement, disqualification, removal from office or
otherwise, or if any new directorship is created by any increase in the
authorized number of directors, a majority of the directors then in office,
although less than a quorum, or the sole remaining director, may choose a
successor or fill the newly created directorship, and the director so chosen
shall hold office, subject to the provisions of these Bylaws, until the
expiration of the term of the class to which he has been chosen and until his
successor shall be duly elected and qualified.
Powers
Section 4. The business of the corporation shall be managed by its Board of
Directors, which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
Meetings of the Board of Directors
Section 5. The Board of Directors may hold meetings either within or without the
State of Delaware.
Section 6. Meetings of the Board of Directors may be called by the Chairman of
the Board or by the President and Chief Executive Officer. A meeting of the
Board of Directors shall be called by the Chairman of the Board, by the
President and Chief Executive Officer, or by the secretary upon the written
request of any two directors.
Section 7. Any director may participate in any meeting of the Board of
Directors, or of any committee of which the director is a member, by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other; and participation in a
meeting in such manner shall constitute presence in person at the meeting.
Section 8. At all meetings of the Board of Directors or any committee of the
Board, a majority of the authorized membership of the Board of Directors or of
such committee shall constitute a quorum for the transaction of business, and
the act of a majority of the directors present at any meeting at which there is
a quorum shall be the act of the Board of Directors or of such committee, except
as may be otherwise specifically provided by statute, by the certificate of
incorporation, or by these Bylaws. If a quorum shall not be present at any
meeting of the Board of Directors or any committee of the Board, the directors
present may adjourn the meeting from time to time until a quorum shall be
present, without notice other than an announcement at the meeting of the time
and place at which the meeting shall reconvene.
Section 9. The presiding director at all meetings of the Board shall be, in the
following order of precedence:
First, the Chairman of the Board of Directors;
Second, the Chairman of the Governance Committee;
Third, the Chairman of the Audit Committee;
Fourth, such other non-management director as shall be chosen by the directors
present at the executive session.
Board Action Without A Meeting
Section 10. Unless otherwise restricted by the certificate of incorporation or
these Bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committees.
Committees of Directors
Section 11. The Board of Directors may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
two or more of the directors of the corporation and to have such name or names
as may be determined from time to time by resolution adopted by the full Board.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee; or in the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not constituting a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution or in these Bylaws, shall
have and may exercise all the powers of the Board of Directors in the management
of the business and affairs of the corporation, and may authorize the seal of
the corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by statute to be submitted to stockholders
for approval, or (ii) adopting, amending or repealing any Bylaw of the
corporation. The
corporation has elected to be governed by paragraph (2) of subsection (c) of
Section 141 of the Delaware General Corporation Law.
Section 12. Each committee shall keep regular minutes of its meetings and
regularly report its proceedings to the Board of Directors.
Compensation of Directors
Section 13. Directors shall be paid their reasonable expenses, if any, of
attendance at each meeting of the Board of Directors, and may be paid a stated
retainer or other compensation and/or a fixed sum for attendance at each meeting
of the Board. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. By
resolution of the full Board of Directors, members of committees of the Board
may be compensated in like manner for serving on the committees and/or attending
committee meetings.
Independence of Directors
Section 14. In determining the number of directors to constitute the Board of
Directors, and in selecting nominees for election to the Board of Directors, the
Board of Directors or the committee thereof making such determination or
selection shall ensure that a majority of the Board of Directors will be
comprised of directors who are "independent" as defined from time to time in the
rules and regulations of the United States Securities and Exchange Commission
and any national securities exchange on which the securities of the corporation
are listed. In addition, in selecting nominees for election to the Board of
Directors, the Board of Directors or the committee thereof making such
determination or selection shall ensure that immediately after such election the
Board of Directors shall include no more than two directors who are not
independent under the preceding definition; however, no director shall be
required to resign from the Board of Directors in order to satisfy the
limitation in this sentence.
Section 15. The Board of Directors shall schedule regular executive sessions, at
which times the non-management directors shall meet without the presence of the
corporation's management. If there are any non-management directors who are not
"independent" as defined under the preceding section of these Bylaws, the Board
of Directors shall at least once a year schedule an executive session including
only independent directors. For the purposes of this Bylaw, "non-management"
directors means directors who are not "officers" (as defined in Rule 16a-1(f) or
a successor rule of the United States Securities and Exchange Commission) of the
corporation.
ARTICLE IV
Notice
Section 1. Whenever, under the provisions of the statutes or of the certificate
of incorporation or of these Bylaws, notice is required to be given to any
stockholder, it shall not be construed to mean personal notice unless expressly
stated, but such notice may be given in writing, by mail, addressed to such
stockholder at the stockholder's address as it appears on the records of the
corporation, with postage hereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Section 2. Notice of any meeting of the Board of Directors shall be given to all
directors, in the manner provided in Article IV, not less than 72 hours prior to
such meeting in the case of a physical meeting, or not less than 24 hours prior
to such meeting in the case of a telephonic meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting.
Section 3. Notices to directors may be given by mail, by nationally recognized
overnight courier service, by telephone, by fax transmission, or by e-mail. Each
director shall keep the secretary of the corporation provided with a current
address, telephone number, fax number and e-mail address for this purpose.
Notice by mail shall be deemed to be given on the third Business Day after
deposit in the U.S. Mail, postage prepaid, addressed to the director at the
address furnished by the director for such purpose. Notice by nationally
recognized overnight courier service shall be deemed given on the delivery date
specified in the courier service's delivery standards, if addressed to the
director at the address furnished by the director for such purpose. Notice by
telephone shall be deemed to be given when the call is either received
personally by the director or received in a voice mail system at the number
furnished by the director for such purpose. Notice by fax transmission shall be
deemed to be given upon confirmation by the sending machine of a completed
transmission to the number furnished by the director for such purpose; provided
that if the receiving location is at a place other than the director's residence
and is either sent on a Saturday, Sunday or federal holiday or confirmed after
5:00 p.m. local time at the place of receipt it shall be deemed to be given on
the next business day. Notice by e-mail shall be deemed given when sent to the
e-mail address furnished by the director for such purpose, unless the sender's
or recipient's e-mail system returns a notice of failed delivery.
Section 4. Whenever notice is required to be given under any provision of the
Delaware General Corporation Law or the certificate of incorporation or these
Bylaws, a written waiver thereof, signed by the person entitled to notice, or a
waiver by electronic transmission by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except where the person attends such meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened.
ARTICLE V
Officers
Section 1. The executive officers of the corporation shall be elected by the
Board of Directors and shall be a President and Chief Executive Officer, a chief
financial officer, however titled, and a secretary. The Board of Directors may
also elect as executive officers one or more vice presidents (who may be
designated as executive or senior vice presidents or given such additional
designations as the Board may determine), and/or one or more other financial or
accounting officers, with such titles and authority as the Board of Directors or
the President and Chief Executive Officer may determine. Any number of offices
may be held by the same person, unless the certificate of incorporation or these
Bylaws otherwise provide.
Section 2. The Board of Directors shall elect the executive officers at least
annually, but vacancies may be filled, or new offices created and filled, or the
executive officers changed, at any meeting of the Board of Directors. The
President and Chief Executive Officer may designate an individual as an
executive officer on an acting or interim basis subject to election by the Board
at its next meeting.
Section 3. The compensation of the President and Chief Executive Officer shall
be established and approved by the Compensation Committee of the Board of
Directors. The compensation of the other executive officers shall be established
by the President and Chief Executive Officer subject to the approval of the
Compensation Committee of the Board of Directors.
Section 4. The Board of Directors may appoint or authorize the President and
Chief Executive Officer to appoint other non-executive officers and agents with
such powers and duties as the Board of Directors or the President and Chief
Executive Officer shall determine.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify or until their death, resignation or removal.
Section 6. The officers of the corporation shall have the following powers and
duties generally pertaining to their respective offices, as well as such powers
and duties not inconsistent with the following as from time to time may be
conferred by the Board of Directors or the President and Chief Executive
Officer:
a. PRESIDENT AND CHIEF EXECUTIVE OFFICER. The President and Chief Executive
Officer shall be the chief executive officer of the corporation. The President
and Chief Executive Officer shall have general and active management of the
business of the corporation; shall see that all orders and resolutions of the
Board of Directors are carried into effect; and in general shall have all powers
and authority and perform all duties as are usually vested in the president or
the chief executive officer of a corporation, as well as such other powers,
authority and duties as may be prescribed by the Board of Directors from time to
time. The President and Chief Executive Officer may execute bonds, mortgages and
other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law or these Bylaws to be otherwise signed and
executed. The President and Chief Executive Officer shall preside at all
meetings of the stockholders in the absence or with the consent of the Chairman
of the Board.
b. VICE PRESIDENTS. The vice presidents shall have such powers, authority and
duties as are set out in these Bylaws and as may be prescribed from time to time
by the Board of Directors or the President and Chief Executive Officer.
In the absence or in the event of the inability or refusal to act of the
President and Chief Executive Officer, the executive vice presidents, if any, in
the order determined by the Board of Directors (or if there be no such
determination, then in the order of their election or the order in which their
names appear in the minutes of the meeting or written consent documenting their
election), shall have the authority to exercise the powers and perform the
duties of the President and Chief Executive Officer. The executive vice
presidents may execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law or
these Bylaws to be otherwise signed and executed.
In the absence of the executive vice presidents or in the event of their
inability or refusal to act, the senior vice presidents, if any, and after them
the other vice presidents, if any, in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election or the order in which their names appear in the minutes of the meeting
or written consent documenting their
election) shall have the authority to exercise the powers and perform the duties
of the President and Chief Executive Officer and/or the executive vice
presidents.
c. CHIEF FINANCIAL OFFICER. The chief financial officer shall have the custody
of the corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the corporation, shall
deposit all monies and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors, shall disburse the funds of the corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Board of Directors at its regular meetings or when the Board of
Directors or the chairman of the board so requires, and to the President and
Chief Executive Officer as the President and Chief Executive Officer requires,
an account of all financial transactions and of the financial condition of the
corporation.
If required by the Board of Directors, the chief financial officer shall give
the corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of such office and for the restoration to the corporation, in case of the
death, resignation, retirement or removal from office of the chief financial
officer, of all books, papers, vouchers, money and other property of whatever
kind belonging to the corporation and in the possession or under the control of
the chief financial officer.
The corporate controller and assistant financial officers, if any, however
titled, in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election or the order in which
their names appear in the minutes of the meeting or written consent documenting
their election), shall, in the absence of the chief financial officer or in the
event of the inability or refusal to act of the chief financial officer, perform
the duties and exercise the powers of the chief financial officer and shall
perform such other duties and have such other powers as the Board of Directors
or the chief financial officer may from time to time prescribe.
d. SECRETARY AND ASSISTANT SECRETARIES. The secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record the
proceedings of the meetings in a book to be kept for that purpose, and shall
perform like duties for the committees of the Board when required. The secretary
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors, the chairman of the board or the
President and Chief Executive Officer. The secretary shall have custody of the
corporate seal of the corporation and shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by the
secretary's signature.
In the absence of the secretary or in the event of the secretary's inability or
refusal to act, the assistant secretaries, if any, in the order determined by
the Board of Directors (or if there be no such determination, then in the order
of their election or the order in which their names appear in the minutes of the
meeting or written consent documenting their election), shall perform the duties
and exercise the powers of the secretary. The assistant secretaries shall
perform such other duties and have such other powers as the Board of Directors,
the chairman of the board or the President and Chief Executive Officer may from
time to time prescribe.
ARTICLE VI
Certificates of Stock
Section 1. Every holder of stock in the corporation shall be entitled to have a
certificate certifying the number of shares owned by the holder in the
corporation, signed by, or in the name of the corporation by, (1) the President
and Chief Executive Officer or a vice president, and (2) the chief financial
officer or secretary, or an assistant financial officer or an assistant
secretary.
If the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in Section 202 of
the General Corporation Law of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificates which the
corporation shall issue to represent such class or series of stock, a statement
that the corporation will furnish without charge to each stockholder who so
requests the designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 2. Where a certificate is countersigned (1) by a transfer agent other
than the corporation or its employee, or (2) by a registrar other than the
corporation or its employee, the signatures of the officers of the corporation
may be facsimiles. In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if such person were such officer at the date of issue.
Lost Certificates
Section 3. The Board of Directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate
or certificates, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or the owner's legal
representatives, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Transfers of Stock
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
Fixing Record Date
Section 5. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or any distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock of 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 nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Registered Stockholders
Section 6. 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 interest in such share or 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 Delaware.
ARTICLE VII
General Provisions
Dividends
Section 1. Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conductive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Annual Statement
Section 3. The Board of Directors shall present at each annual meeting, and at
any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
Checks
Section 4. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
Fiscal Year
Section 5. The fiscal year of the corporation shall be fixed by resolution of
the Board of Directors.
Seal
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
Amendments
Sections 1, 2 and 3 of Article III and this Article VIII of the By-laws may not
be amended, modified or rescinded except by the affirmative vote of the holders
of at least 80 percent of the outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors, considered
for such purpose as one class, and, in addition, the affirmative vote of the
holders of at least a majority of the outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors, considered
for such purpose as one class, which are not beneficially owned, directly or
indirectly, by any corporation, person or other entity which is the beneficial
owner (as defined in Article THIRTEENTH of the Certificate of Incorporation),
directly or indirectly, of 10 percent or more of the outstanding shares of such
capital stock, considered for such purpose as one class. To the extent not
inconsistent with the foregoing, all other provisions of the By-laws may be
amended, modified and rescinded and new By-laws may be adopted, (i) by the
affirmative vote of the holders of at least a majority of the outstanding shares
of capital stock of the corporation entitled to vote thereon, or (ii) by the
Board of Directors; provided, that any By-law adopted, amended or modified by
the Board of Directors may be amended, modified or rescinded by the vote of the
stockholders prescribed in clause (i) above.