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As Amended and
Restated May 28, 1998
BY-LAWS
OF
AVATAR HOLDINGS INC.
(a Delaware corporation)
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ARTICLE I
Offices
SECTION 1. REGISTERED OFFICE. The registered office shall be
established and maintained at the office of Corporation Service Company, in the
City of Wilmington, in the County of New Castle, in the State of Delaware, and
said corporation shall be the registered agent of this Corporation in charge
thereof.
SECTION 2. OTHER OFFICES. The Corporation may have other
offices, either within or without the State of Delaware, at such place or places
as the Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders
of the Corporation for the election of Directors and for the transaction of such
other business as may come before the meeting shall be held in each year on such
business day and at such hour as shall be fixed by the Board of Directors. If
the annual meeting is not held at the time so fixed, the Board of Directors
shall cause the meeting to be held as soon thereafter as convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of
stockholders for any purpose or purposes, unless otherwise prescribed by law or
by the Certificate of Incorporation, may be called at any time by the Chairman
of the Board or by
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order of the Board of Directors or the Executive Committee of the Board of
Directors, and shall be called by the Chairman of the Board, the President or
the Secretary at the request in writing of a stockholder or stockholders holding
of record at least twenty percent of all the Common Stock of the Corporation
then outstanding and entitled to vote. Special meetings shall be called by means
of a notice as provided for in Section 4 of this Article II.
SECTION 3. PLACE OF MEETING. Each meeting of stockholders
shall be held at such place, within or without the State of Delaware, as shall
be fixed by the Board of Directors and specified in the notice or waiver of
notice of said meeting. If no designation is made, the place of the meeting
shall be the principal office of the Corporation in the State of Florida.
SECTION 4. NOTICE OF MEETINGS. Except as otherwise provided by
law, by the Certificate of Incorporation or by these By-Laws, written notice of
every meeting of stockholders shall be given to each stockholder of record
entitled to vote at the meeting, not less than ten nor more than sixty days
prior to the date named for the meeting (unless a greater period of notice is
required by law in a particular case), by delivering a written or printed notice
thereof to him personally, or by sending a copy thereof, charges prepaid,
through the mail or transmitted by telex, telegraph or cable to his address
appearing on the books of the Corporation, or supplied by him to the Corporation
for the purpose of notice. If notice is sent through the mail or transmitted by
telex, telegraph or cable, it shall be deemed to have been given to the person
entitled thereto when deposited in the United States mail or with the
appropriate office for transmission to such person. Such notice shall specify
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. Notice of any adjourned
meeting of stockholders shall not be required to be given, except when expressly
required by law, by the Certificate of Incorporation or by these By-Laws. As
provided in Article IX of these By-Laws, any stockholder may waive the
requirements of notice provided for herein.
SECTION 5. QUORUM. The holders of shares entitling them to
exercise a majority of the voting power of the Corporation, present in person or
by proxy at any meeting of stockholders, shall constitute a quorum. Once a
quorum shall have been established, the stockholders present at a duly organized
meeting may continue to do business
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until adjournment, notwithstanding the withdrawal of sufficient stockholders to
leave less than a quorum. If a meeting cannot be organized because a quorum has
not attended, those present in person or represented by proxy may, except as
otherwise provided by law, adjourn the meeting to such time and place as they
determine.
SECTION 6. ADJOURNMENTS. At any annual or special meeting, the
holders of shares entitling them to exercise a majority of the voting power
which is present in person or by proxy at such meeting, although less than a
quorum, may adjourn the meeting from time to time without further notice (except
as is otherwise required by law) other than by announcement at the meeting at
which such adjournment is taken of the time and place of the adjourned meeting.
At any such adjourned meeting at which a quorum shall be present, any business
may be transacted which might have been transacted at the original meeting.
SECTION 7. VOTING. Each stockholder of record of Common Stock
shall be entitled at each meeting of stockholders to one vote for each share of
Common Stock registered in his name on the books of the Corporation, except as
hereinafter stated for the election of Directors. For all elections of
Directors, each stockholder of record of Common Stock shall be entitled to cast
as many votes as equals the number of Directors to be elected at such election
multiplied by the number of shares of Common Stock owned by such stockholder on
the record date. All such votes may be cast for a single candidate or
distributed in any number among any two or more candidates. Directors shall be
elected by a plurality of the votes cast by the stockholders present in person
or by proxy. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, all other matters shall be determined by vote
of at least a majority of the votes which all stockholders present in person or
by proxy at such meeting are entitled to cast on such matter. Voting by ballot
shall not be required for the election of Directors or for the transaction of
any other corporate business except as otherwise provided by law.
SECTION 8. ORGANIZATION. At every meeting of stockholders, the
Chairman of the Board or, in his absence, the President or, in the absence of
either of such officers, a chairman chosen by a majority vote of stockholders
present in person or by proxy and entitled to vote thereat, shall act as
chairman of the meeting. The Secretary, or in his absence an Assistant
Secretary, shall act as secretary at
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all meetings of stockholders. In the absence of the Secretary or an Assistant
Secretary, the chairman of the meeting may appoint any person to act as
secretary of the meeting.
SECTION 9. LIST OF STOCKHOLDERS. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its stock
ledger, either directly or through another officer of the Corporation designated
by him or through a transfer agent or transfer clerk appointed by the Board of
Directors, to prepare, at least ten days before every meeting of stockholders
for the election of Directors of the Corporation, a complete list of
stockholders entitled to vote thereat, arranged in alphabetical order and
showing the address of each stockholder and number of shares registered in the
name of each stockholder. For said ten days such list shall be open, at the
place where said meeting is to be held or at another place within the city where
the meeting is to be held if such other place is specified in the notice of the
meeting, to the examination of any stockholder for any purpose germane to the
meeting, and shall be produced and kept at the time and place of said meeting
during the whole time thereof and subject to the inspection of any stockholder
who shall be present thereat. The original or duplicate stock ledger shall be
the only evidence as to who are the stockholders entitled to examine such list
or the books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
SECTION 10. BUSINESS AND ORDER OF BUSINESS.
(a) ANNUAL MEETING.
No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (c) otherwise properly brought before the annual
meeting by any stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice provided for in this
Section 10 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who
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complies with the notice procedures set forth in this Section 10.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than sixty (60) days nor more than
ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; PROVIDED, HOWEVER, that in
the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice
by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was mailed or such
public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice
to the Secretary must set forth as to each matter such stockholder
proposes to bring before the annual meeting (i) a brief description of
the business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (ii) the
name and record address of such stockholder, (iii) the class or series
and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iv) a description
of all arrangements or understandings between such stockholder and any
other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest
of such stockholder in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting
of stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 10, PROVIDED,
HOWEVER, that,
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once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this Section 10 shall be
deemed to preclude discussion by any stockholder of any such business.
If the chairman of an annual meeting determines that business was not
properly brought before the annual meeting in accordance with the
foregoing procedures, the chairman shall declare to the meeting that
the business was not properly brought before the meeting and such
business shall not be transacted.
(b) SPECIAL MEETING.
At a special meeting of the stockholders, only such
business shall be conducted as shall be specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the
Board of Directors.
(c) ORDER OF BUSINESS.
The order of business at all meetings of stockholders
shall be as determined by the chairman of the meeting.
SECTION 11. INSPECTORS OF ELECTION. In advance of any meeting
of stockholders, the Board of Directors may appoint one or more Inspector(s) of
Election, who need not be stockholders, to act at such meeting or any
adjournment or adjournments thereof. If Inspector(s) of Election are not so
appointed, the chairman of any such meeting may make such appointment at the
meeting. No person who is a candidate for office shall act as an Inspector. In
case any person appointed as an Inspector fails to appear or fails or refuses to
act, the vacancy may be filled by appointment made by the Board of Directors in
advance of the convening of the meeting, or at the meeting by the person acting
as chairman. Each Inspector of Election so appointed shall first subscribe an
oath or affirmation faithfully to perform the duties of an Inspector of Election
at such meeting impartially, in good faith, to the best of his ability, and as
expeditiously as is practical. The Inspector(s) of Election shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes or ballots, hear and determine all
challenges and questions in any way arising in connection with the right to
vote, count and tabulate all votes, determine the result, and do such acts
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as may be proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, the Inspector(s) of
Election shall make a report in writing of any challenge or question or matter
determined by them, and execute a certificate of any fact found by them.
SECTION 12. PROXIES. Every stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent without a meeting may
authorize another person or persons (who need not be a stockholder) to act for
him by proxy. Every proxy must be signed by the stockholder or his
attorney-in-fact. No proxy shall be valid after the expiration of three years
from the date thereof unless otherwise provided in the proxy. The authority of
the holder of a proxy to act shall not be revoked by the incompetence or death
of the stockholder who executed the proxy unless, before the authority is
exercised, written notice of an adjudication of such incompetence or of such
death is received by the corporate officer responsible for maintaining the list
of stockholders.
SECTION 13. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING.
Whenever the vote of stockholders at a meeting thereof is required or permitted
to be taken for or in connection with any corporate action, the meeting and vote
of stockholders may be dispensed with and the action 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 voting. 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.
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ARTICLE III
Board of Directors
SECTION 1. GENERAL POWERS. The business and
affairs of the Corporation shall be managed by the Board of
Directors.
SECTION 2. NUMBER, QUALIFICATION AND TERM OF OFFICE. The Board
of Directors shall consist of no less than eight nor more than fifteen members
as may be fixed from time to time by resolution of the Board. As used in these
By-Laws, "whole Board of Directors" means the total number of Directors which
the Corporation would have if there were no vacancies. Directors need not be
stockholders of the Corporation. Except as provided in Section 3 of this Article
III, Directors shall be elected by the stockholders. Each Director shall hold
office until the annual meeting of stockholders next following his election and
until his successor shall be elected and shall qualify, or until such Director's
earlier death, resignation or removal in the manner hereinafter provided.
SECTION 3. VACANCIES. Vacancies in the Board of Directors,
including vacancies resulting from an increase in the number of Directors, shall
be filled by a majority of the remaining members of the Board (although less
than a quorum), and each person so elected shall hold office until the next
election of Directors by stockholders and until his successor shall be elected
and shall qualify, or until such Director's earlier death, resignation or
removal in the manner hereinafter provided.
SECTION 4. PLACE OF MEETING. The Board of Directors may hold
its meetings at such place or places within or without the State of Delaware as
a majority of the Directors may from time to time appoint, or as may be
designated in the notice calling the meeting.
SECTION 5. ORGANIZATION MEETING. As soon as practicable after
each annual election of Directors by the stockholders, the Board of Directors
shall meet for the purpose of organization, the election of the Audit Committee
of the Board of Directors, the Executive Committee of the Board of Directors,
the Chairman of the Board and the Chairman of the Executive Committee and the
transaction of other business. If held on the same day as the annual meeting of
stockholders, notice of such organization meeting of the Board of Directors need
not be given. If the
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organization meeting is held on any other day, notice of such meeting shall be
given as hereinafter provided for regular and special meetings of the Board of
Directors.
SECTION 6. REGULAR AND SPECIAL MEETINGS. Regular meetings of
the Board of Directors shall be held at such times as the Board of Directors
shall from time to time by resolution determine. Special meetings of the Board
of Directors shall be held whenever called by the Chairman of the Board, the
President or any four Directors.
SECTION 7. NOTICE. Written notice of each regular or special
meeting of the Board of Directors shall be given by the Secretary to each
Director at least three days prior to the day named for the meeting. Notice of
each such meeting may be given to a Director, either personally or by sending a
copy thereof, charges prepaid, through the mail, or transmitted by telex,
telecopier, telegraph or cable to his address appearing on the books of the
Corporation or supplied by him to the Corporation for the purpose of notice. If
notice is sent by mail or transmitted by telex, telegraph or cable, it shall be
deemed to have been given when deposited in the United States mail or with the
appropriate office for transmission to such person. Such notice shall specify
the place, day and hour of the meeting, and notice of a special meeting shall
include a general statement of the purpose for which the meeting is called. When
a meeting is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at such adjourned meeting,
other than by announcement at the meeting at which such adjournment is taken. As
provided in Article IX of these By-Laws, any Director may waive the notice
requirements provided for herein.
SECTION 8. QUORUM AND MANNER OF ACTING. A majority of the
whole Board of Directors shall be necessary to constitute a quorum for the
transaction of business and the vote of a majority of the Directors
participating in a meeting at which a quorum is present or participating shall
be the act of the Board of Directors.
SECTION 9. ORGANIZATION. At each meeting of the Board of
Directors, the Chairman of the Board, or in his absence, a Director chosen by a
majority of the Directors present, shall act as chairman of the meeting. The
Secretary, or in his absence any person appointed by the chairman of the
meeting, shall act as secretary of the meeting.
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SECTION 10. BUSINESS AND ORDER OF BUSINESS. At each meeting
of the Board of Directors such business may be transacted as may properly be
brought before the meeting, whether or not such business is stated in the notice
of such meeting or in a waiver of notice thereof, except as otherwise expressly
provided by law, by the Certificate of Incorporation or by these By-Laws. At all
meetings of the Board of Directors business shall be transacted in the order
determined by the chairman of the meeting subject to the approval of the Board.
SECTION 11. ACTION BY CONSENT. Any action which may be taken
by the Board of Directors or by any committee thereof may be taken without a
meeting, if a consent or consents in writing setting forth the action so taken
shall be signed by all of the Directors or members of a committee, respectively,
and shall be filed with the Secretary of the Corporation.
SECTION 12. CONSTRUCTIVE PRESENCE AT A MEETING. Any member of
the Board of Directors or of any committee thereof shall be deemed present at a
meeting of such Board or committee if a conference telephone or similar
communication equipment is used, by means of which all persons participating in
the meeting can hear each other.
SECTION 13. INTERESTED DIRECTORS; QUORUM. No contract or
transaction between the Corporation and one or more of the Directors or officers
of the Corporation, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of the
Directors or officers of the Corporation are directors or officers, or have a
financial interest, shall be void or voidable solely for such reason, or solely
because such 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 for such purpose,
if (i) the material facts as to his 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 as to his 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
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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 a contract or transaction specified in this section.
SECTION 14. RESIGNATIONS. Any Director may resign at any time
upon written notice to the Secretary of the Corporation. Such resignation shall
take effect at the time specified therein, or, if no time be so specified, upon
receipt by the Secretary. The acceptance of a resignation shall not be necessary
to make it effective.
SECTION 15. REMOVAL OF DIRECTORS. Any Director or the entire
Board of Directors may be removed, with or without cause, by the vote of a
majority of the outstanding shares then entitled to vote at an election of
Directors, except if less than the entire Board of Directors is to be removed,
no Director may be removed without cause if the votes cast against his removal
would be sufficient to elect him if then cumulatively voted at an election of
the entire Board of Directors.
SECTION 16. NOMINATION OF DIRECTORS. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as Directors of the Corporation. Nominations of persons for election to
the Board of Directors may be made at any annual meeting of stockholders, or at
any special meeting of stockholders called for the purpose of electing
Directors, (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the notice provided
for in this Section 16 and on the record date for the determination of
stockholders entitled to vote at such meeting and (ii) who complies with the
notice procedures set forth in this Section 16.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
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To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation: (a) in the case of an annual meeting, not less than sixty (60) days
nor more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders (provided, however, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs); and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth: (a) as to each person whom the stockholder proposes to
nominate for election as a Director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in
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connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a Director if
elected.
No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 16. If the chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
ARTICLE IV
Committees of the Board
SECTION 1. EXECUTIVE COMMITTEE. At the organization meeting
following the annual meeting of stockholders, the Board of Directors shall, by
resolution adopted by a majority of the whole Board of Directors, designate an
Executive Committee consisting of the Chairman of the Board, the Chairman of the
Executive Committee and not less than two other directors. Except as hereinafter
set forth, the Executive Committee shall have and may exercise all the authority
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. All acts done and power conferred by the Executive
Committee shall be deemed to be, and may be certified as being, done or
conferred under authority of the Board of Directors. Notwithstanding the
foregoing, the Executive Committee shall not have the power or authority of the
Board of Directors in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, amending these
By-Laws, declaring a dividend or authorizing the issuance of stock. Any member
of the Executive Committee may be removed at any time, and any vacancy on the
Executive Committee may be filled, by the vote of a majority of the whole Board
of Directors.
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SECTION 2. MEETINGS OF EXECUTIVE COMMITTEE. Meetings of the
Executive Committee shall be held whenever called by the Chairman of the Board
or the Chairman of the Executive Committee. Notice of each meeting of the
Executive Committee shall be given personally, in writing or by telephone to
each member of the Executive Committee at his residence or usual place of
business at least twenty-four hours in advance of the meeting. Such notice shall
state the time and place of the meeting, but need not state the purpose or
purposes thereof. As provided in Article IX of these By-Laws, any member of the
Executive Committee may waive the notice requirements provided for herein. The
Executive Committee shall adopt its own rules of procedure not inconsistent with
any rules for committees set forth in these By-Laws, and it shall keep a record
of its proceedings and report them to the Board of Directors at the next meeting
thereof after each meeting of the Executive Committee. All actions taken by the
Executive Committee shall be subject to revision or alteration by the Board of
Directors, PROVIDED, HOWEVER, that third parties shall not be prejudiced by any
such revision or alteration.
SECTION 3. QUORUM OF AND MANNER OF ACTING BY EXECUTIVE
COMMITTEE. A majority of the Executive Committee shall constitute a quorum for
the transaction of business, and the vote of a majority of those participating
at a meeting thereof at which a quorum is present or participating shall be the
act of the Executive Committee.
SECTION 4. AUDIT COMMITTEE. The Board of Directors shall by
resolution designate an Audit Committee consisting of a Chairman and not less
than two other Directors. No member of the Audit Committee shall be an officer
or employee of the Corporation. The Audit Committee shall by majority vote of
its members adopt its own rules of procedure not inconsistent with any rules for
committees set forth in these By-Laws and fix the time and place of its
meetings, unless the Board of Directors shall otherwise provide. The Audit
Committee shall: recommend to the Board of Directors, subject to approval by the
stockholders of the Corporation, the appointment of the independent auditors of
the Corporation; review with the independent auditors their report and any
management letter and reports to the Board of Directors with respect thereto;
review with the independent auditors the Corporation's accounting policies and
procedures as well as its internal controls and internal auditing procedures;
determine whether there are any conflicts of interest in financial or business
matters between the Corporation and any of its officers or
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employees; review the recommendations of the independent auditors; review the
aggregate fee for audit and non-audit services of the independent auditors and
consider the possible effect of such services on the independence of the
auditors; and perform such other tasks as are assigned to it from time to time
by the Board of Directors. The Board of Directors shall have power to change the
number of members or the personnel of the Audit Committee at any time and to
fill vacancies. The Audit Committee shall keep minutes of its acts and
proceedings.
SECTION 5. OTHER COMMITTEES. The Board of Directors may from
time to time by resolution create such other committee or committees of
Directors, officers, employees or other persons designated by it for the purpose
of advising the Board, the Executive Committee and the officers and employees of
the Corporation with respect to such matters as the Board shall deem appropriate
and with such functions, powers and authority as the Board shall by resolution
prescribe; PROVIDED, HOWEVER, that no such other committee shall exercise any of
the powers or authority of the Board of Directors in the management of the
business and affairs of the Corporation or have power to authorize the seal of
the Corporation to be affixed to papers which may require it, unless such other
committee shall be created by resolution passed by a majority of the whole Board
of Directors and shall be so authorized by such resolution, and PROVIDED
FURTHER, that no committee shall exercise any of the powers or authority of the
Board of Directors that are not permitted by law. A majority of all the members
of any such other committee may adopt its own rules of procedure not
inconsistent with any rules for committees set forth in these By-Laws and fix
the time and place of its meetings, unless the Board of Directors shall
otherwise provide. The Board of Directors shall have power to change the number
of members or the personnel of any such other committee at any time, to fill
vacancies, and to discharge any such other committee, either with or without
cause, at any time. 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 any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or
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disqualified member. Each such committee shall keep minutes of its acts and
proceedings.
SECTION 6. COMPENSATION. Members of any committee contemplated
by these By-Laws shall receive such compensation, fees and allowances, if any,
for their services as shall be fixed by resolution of the Board of Directors.
Nothing herein contained shall be construed so as to preclude any member of any
such committee from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE V
Officers
SECTION 1. NUMBER. The officers of the Corporation shall be a
Chairman of the Board, one or more Vice Chairmen of the Board, a Chairman of the
Executive Committee, a Chief Executive Officer, a President, one or more Vice
Presidents (any one or more of whom the Board of Directors or the Executive
Committee may designate Executive Vice President or Senior Vice President or
similar title), a Secretary and a Treasurer. Any two or more offices may be held
by the same person. It shall not be necessary for officers (except the Chairman
of the Board, any Vice Chairman of the Board, the Chairman of the Executive
Committee, and the Chief Executive Officer) to be Directors.
SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATION. Except
in the case of officers appointed in accordance with the provisions of Section 3
of this Article V, officers shall be elected annually by the Board of Directors
and each officer shall hold office until his successor shall be elected and
shall qualify, or until the officer's earlier death, resignation or removal in
the manner hereinafter provided.
SECTION 3. OTHER OFFICERS. The Corporation may have such other
officers and agents as may be deemed necessary by the Board of Directors or the
Executive Committee. Such other officers and agents shall be appointed in such
manner, have such duties and hold their offices for such terms as may be
determined by the Board of Directors or the Executive Committee. The Board of
Directors or the Executive Committee may delegate to any principal officer the
power to appoint or remove any such other officers or agents.
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SECTION 4. REMOVAL; RESIGNATION. Any officer or agent elected
or appointed by the Board of Directors or the Executive Committee may be removed
by the Board of Directors or the Executive Committee whenever in its judgment
the best interests of the Corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Any officer or agent may resign at any time by giving written
notice to the chief executive officer or the secretary. Unless stated in the
notice of resignation, the acceptance thereof shall not be necessary to make it
effective, and it shall take effect at the time specified therein or, in the
absence of such specification, it shall take effect upon the receipt thereof.
SECTION 5. VACANCIES. A vacancy in any office because of
death, resignation, removal or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these By-Laws for election or
appointment to such office.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of the Board of Directors and of stockholders. In
the absence of the Chairman of the Executive Committee, or if there be no
Chairman of the Executive Committee, the Chairman of the Board (if then a member
of the Executive Committee) shall preside at meetings of the Executive Committee
and shall exercise all of the powers and discharge all of the duties of the
Chairman of the Executive Committee. The Chairman of the Board shall have the
power to sign all certificates, contracts, obligations and other instruments of
whatever character on behalf of the Corporation. The Chairman of the Board shall
have and perform such other duties and may exercise such other powers as from
time to time may be assigned to him by these By-Laws, the Board of Directors or
the Executive Committee. In the absence of the Chairman of the Board, any Vice
Chairman of the Board may perform the functions of the Chairman of the Board.
SECTION 7. CHAIRMAN OF THE EXECUTIVE COMMITTEE. The Chairman
of the Executive Committee shall preside at all meetings of the Executive
Committee. The Chairman of the Executive Committee shall have the power to sign
all certificates, contracts, obligations and other instruments of whatever
character on behalf of the Corporation. He shall perform such other duties and
may exercise such other powers as from time to time may be assigned to him by
these
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By-Laws, the Board of Directors, the Executive Committee or the Chairman of the
Board.
Section 8. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall be the senior executive officer of the Corporation. He shall
transmit or cause to be transmitted necessary instructions and advice to all
other officers and all other proper persons and shall be the proper officer of
the Corporation to whom matters and issues concerning the Corporation shall be
transmitted for attention. The Chief Executive Officer shall have power to sign
all certificates, contracts, obligations and other instruments of whatever
character on behalf of the Corporation. He shall perform such other duties and
may exercise such other powers as from time to time may be assigned to him by
these By-Laws, the Board of Directors, the Executive Committee or the Chairman
of the Board.
SECTION 9. PRESIDENT. The President shall have power to sign
all certificates, contracts, obligations and other instruments of whatever
character on behalf of the Corporation. He shall perform such other duties and
may exercise such other powers as from time to time may be assigned to him by
these By-Laws, the Board of Directors, the Executive Committee or the Chairman
of the Board.
SECTION 10. VICE PRESIDENTS. Each Vice President shall perform
such duties and may exercise such powers as from time to time may be assigned to
him by these By-Laws, the Board of Directors, the Executive Committee, the
Chairman of the Board, or the President. Each Vice President shall have power to
sign all certificates, contracts, obligations and other instruments of whatever
character on behalf of the Corporation.
SECTION 11. SECRETARY. The Secretary: shall record or cause
to be recorded in books provided for that purpose the minutes of the meetings of
the stockholders, the Board of Directors and the Executive Committee; 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 such corporate records as
the Board of Directors may direct and of the seal of the Corporation and may
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of an Assistant Secretary; may
sign with the Chairman of the Board, the President or any Vice President all
authorized contracts, obligations or instruments; shall see that the books,
reports, statements, certificates and
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all other documents and records required by law, by the Certificate of
Incorporation or by these By-Laws to be kept by him are available for
examination at reasonable times by any Director at the principal office of the
Corporation during business hours; and, in general, shall perform all duties
incident to the office of Secretary and such other duties as may, from time to
time, be assigned to him by the Board of Directors, the Executive Committee, the
Chairman of the Board or the President.
At the request of the Secretary, or in his absence or
disability, any Assistant Secretary shall perform any of the duties of the
Secretary and, when so acting, shall have all the powers of, and be subject to
all of the restrictions upon, the Secretary. Except where by law the signature
of the Secretary is required, each of the Assistant Secretaries shall possess
the same power as the Secretary to sign certificates, contracts, obligations and
other instruments of the Corporation, and to affix the seal of the Corporation
to such instruments, and attest the same.
SECTION 12. TREASURER. The Treasurer: shall have charge and
custody of all funds and securities of the Corporation and shall deposit all
such funds in the name of the Corporation in such depositories as may be
designated by the Board of Directors or pursuant to Section 3 of Article X;
shall disburse the funds of the Corporation, taking proper vouchers for such
disbursements; shall render to the Chairman of the Board or the Directors, at
the regular meetings of the Board, or whenever they may require it, an account
of all his transactions as Treasurer and of the financial condition of the
Corporation, and; in general, shall perform all duties incident to the office of
Treasurer and such other duties as may, from time to time, be assigned to him by
the Board of Directors, the Executive Committee, the Chairman of the Board or
the President. If required by the Board of Directors, he shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine.
At the request of the Treasurer, or in his absence or
disability, any Assistant Treasurer may perform any of 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. Except where by law the signature of
the Treasurer is required, each of the Assistant Treasurers shall possess the
same power as the Treasurer to sign all
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certificates, contracts, obligations and other instruments of the Corporation.
SECTION 13. SALARIES. The salaries of the
officers shall be fixed from time to time by the Board of Directors. No officer
shall be prevented from receiving such salary by reason of the fact that he is
also a Director of the Corporation.
ARTICLE VI
Indemnification
SECTION 1. INDEMNIFICATION; PREPAYMENT OF EXPENSES. (a) Each
person who was or is made a party or is threatened to be made a party to or is
involved in any manner in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "PROCEEDING"), by reason of the fact that he or she or a person
of whom he or she is the legal representative is or was a director, officer or
employee of the Corporation or a majority-owned subsidiary of the Corporation (a
"SUBSIDIARY"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer or employee, shall be indemnified and held
harmless by the Corporation in accordance with and to the fullest extent
permitted from time to time by the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended (the "DGCL") (but, if
permitted by applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) or any other applicable laws as presently or hereafter in
effect, and such indemnification shall continue as to a person who has ceased to
be a director, officer or employee and shall inure to the benefit of his or her
heirs, executors and administrators; PROVIDED, HOWEVER, that the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors or is a proceeding to
enforce such person's claim to indemnification pursuant to the rights granted by
this Article VI. The Corporation shall pay the expenses (including legal fees)
incurred by such person in defending any such proceeding in advance of its final
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disposition; PROVIDED, HOWEVER, that an advancement of expenses incurred by such
person in his or her capacity as a director, officer or employee shall be made
only upon receipt (unless the Board of Directors waives such requirement to the
extent permitted by applicable law) of an undertaking, by or on behalf of such
person, to repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article VI or otherwise, and PROVIDED FURTHER, that, in the case of a
director or officer, such an undertaking shall be required only if and to the
extent rquired by the DGCL.
(b) The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and rights to
be paid by the Corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any person who is or was an agent (other
than a director, officer or employee) of the Corporation or a Subsidiary and to
any person who is or was serving at the request of the Corporation or a
Subsidiary as a director, officer, partner, member, employee, trustee or agent
of another corporation, partnership, limited liability company, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans maintained or sponsored by the Corporation or a Subsidiary, to the fullest
extent of the provisions of this Article VI with respect to the indemnification
of and advancement of expenses to directors, officers and employees of the
Corporation.
SECTION 2. NON-EXCLUSIVITY OF RIGHTS. The rights to
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VI shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, provision of these By-laws, agreement, vote of stockholders or
disinterested Directors or otherwise. No repeal, modification or amendment of,
or adoption of any provision inconsistent with, this Article VI, nor, to the
fullest extent permitted by applicable law, any modification of law, shall
adversely affect any right or protection of any person granted pursuant hereto
with respect to any events that occurred prior to the time of such repeal,
amendment, adoption or modification.
SECTION 3. RIGHT TO BRING SUIT. The rights to
indemnification and to the advancement of expenses conferred in Section 1(a) of
this Article VI shall be contract rights.
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If a claim under Section 1(a) of this Article VI is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the claimant shall be entitled to be paid also the
expense of prosecuting or defending such suit. In any suit brought by the
claimant to enforce a right to indemnification hereunder (but not in a suit
brought by the claimant to enforce an advancement of expenses) it shall be a
defense that, and in any suit by the Corporation to recover an advancement of
expenses upon a final adjudication that, the claimant has not met any applicable
standard for indemnification set forth in the DGCL. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the claimant is proper in the circumstances because
the claimant has met the applicable standard of conduct set forth in the DGCL,
nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall create a presumption that the
claimant has not met the applicable standard of conduct or, in the case of such
a suit brought by the claimant, be a defense to such suit. In any suit brought
by the claimant to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the claimant
is not entitled to be indemnified, or to such advancement of expenses, under
this Article VI or otherwise shall be on the Corporation.
SECTION 4. OTHER INDEMNIFICATION. The Corporation's
obligation, if any, to indemnify any person who was or is serving at its request
as a director, officer, partner, member, employee, trustee or agent of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, limited liability
company, joint venture, trust or other enterprise.
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SECTION 5. INSURANCE. The Corporation may maintain insurance,
at its expense, to protect itself and any person who is or was a director,
officer, partner, member, employee, trustee or agent of the Corporation or a
Subsidiary or of another corporation, partnership, limited liability company,
joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
SECTION 6. CONSTRUCTION. If any provision or provisions of
this Article VI shall be held invalid, illegal or unenforceable for any reason
whatsoever: (1) the validity, legality and enforceability of the remaining
provisions of this Article VI (including, without limitation, each portion of
any subparagraph or clause of this Article VI containing any such provision held
to be invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (2) to the fullest extent possible, the provisions of this Article VI
(including, without limitation, each such portion of any subparagraph of this
Article VI containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
SECTION 7. NOTICE. Any notice, request or other communication
required or permitted to be given to the Corporation under this Article VI shall
be in writing and either delivered in person or sent by telecopy, telex,
telegram, overnight mail or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the Corporation
and shall be effective only upon receipt by the Secretary.
ARTICLE VII
Certificates of Stock, Books and Records
SECTION 1. FORM; SIGNATURE. A certificate of stock, signed
by the Chairman of the Board, the President or any Vice President, and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
shall be issued to each stockholder certifying the number of shares owned by him
in the Corporation. Any or all of the signatures on the certificates may be a
facsimile. In case
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any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such an officer,
transfer agent or registrar at the date of issue.
If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, there shall be set forth on
the back of the certificate 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 powers, 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. LOST CERTIFICATES. The Board of Directors may
determine the conditions under which a new share certificate is to be issued in
place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed. When authorizing the issuance 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 his legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the
Corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized attorneys or legal representatives, and upon
such transfer the old certificates shall be surrendered to the corporation by
the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other person as the Board of Directors may designate, by
whom they shall be cancelled, and new certificates shall thereupon be issued. A
record shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
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SECTION 4. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in 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 law.
SECTION 5. DETERMINING 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 or to express consent
to corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution, or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful activity, the Board of Directors may fix
(or authorize the Secretary to fix), in advance, a record date, which (1) in the
case of determination of stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall not be more than sixty nor less than
ten days before the date of such meeting; (2) in the case of determination of
stockholders entitled to express consent to corporate action in writing without
a meeting, shall not be more than ten days from the date upon which the
resolution fixing the record date is adopted by the Board of Directors; and (3)
in the case of any other action, shall not be more than sixty days prior to such
other action. Only such stockholders as shall be stockholders of record on the
date so fixed shall be entitled to notice of, or to vote at, such meeting, to
express consent to corporate action in writing without a meeting, to receive
payment of such dividend or other distribution, to receive such allotment of
rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after any record date
fixed as aforesaid. A determination of stockholders or 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.
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ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall be as determined by
the Board of Directors or by the Executive Committee from time to time.
ARTICLE IX
Waiver of Notice
Whenever any notice whatever is required to be given by law,
by the Certificate of Incorporation or by these By-Laws, the person entitled
thereto may, in person or by attorney thereunto authorized, in writing or by
telegraph, telex or cable, waive such notice whether before or after the meeting
or other matter in respect of which such notice is to be given, and in such
event such notice need not be given to such person and such waiver shall be
deemed equivalent to such notice. Neither the purpose of nor the business to be
transacted at such meeting need be specified in any written waiver of notice.
Attendance of a person at a meeting shall constitute a waiver of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of a meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE X
General Provisions
SECTION 1. CONTRACT, ETC., HOW EXECUTED. The Board of
Directors or the Executive Committee may authorize any officer or officers,
agent or agents, or employee or employees of the Corporation to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation, and such authority may be general or confined to specific instance.
SECTION 2. CHECKS, ETC. All checks, drafts, bills of exchange
or other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation, shall be signed, either
manually or in facsimile, by such officer or officers, or agent or agents, as
may from time to time be designated by these By-Laws, or
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by the Board of Directors or the Executive Committee, or who shall have been
designated in writing by any two officers of the Corporation, acting jointly,
who shall have been authorized and empowered by the Board of Directors or the
Executive Committee to make such designation. A designation by the Board of
Directors, the Executive Committee or by officers thereunto duly authorized and
empowered may be general or confined to specific instances.
SECTION 3. DEPOSITORIES. Funds or securities of the
Corporation shall be deposited in such depositories as shall be appointed by the
Board of Directors, the Executive Committee or as shall be appointed by any two
officers of the Corporation, acting jointly, who shall have been authorized and
empowered by the Board of Directors or the Executive Committee to make such
appointment.
SECTION 4. PROXIES. Unless otherwise provided by resolutions
of the Board of Directors, the Board of Directors or the Executive Committee may
from time to time appoint any attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf 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 shares or other securities may be held by the
Corporation, at meetings of holders of the shares or other securities of such
other corporation, or to consent or dissent 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 or dissent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal, or otherwise, all such written proxies or other instruments
he or they may deem necessary and proper.
SECTION 5. SEAL. The corporate seal shall be in the form of a
circle, shall bear the name of the Corporation, the year 1970 and the words
"Corporate Seal - Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any manner reproduced. Except as
otherwise required by law, the affixation of the corporate seal shall not be
necessary to the valid execution, assignment or endorsement of any instrument in
writing.
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ARTICLE XI
Amendments
These By-Laws, or any of them, may be altered, amended or
repealed, or new By-Laws may be adopted, at any time by the affirmative vote of
at least a majority of the votes which all stockholders present in person or by
proxy at such meeting are entitled to cast, or by the Board of Directors at any
regular or special meeting of the Board.
ARTICLE XII
By-Laws Subject to Provisions
of Certificate of Incorporation
In case of any conflict between the provisions of these
By-Laws and the Certificate of Incorporation, the provisions of the Certificate
of Incorporation shall control.
ARTICLE XIII
Election Not to be Governed by the
Florida Control-Share Acquisition Statute
To the extent, if any, that the provisions of Section 607.109
of the Florida General Corporation Act (the "Florida Act") apply to any
"control-share acquisition" (as defined in Section 607.109 of the Florida Act)
of shares of the Common Stock, the Corporation hereby expressly elects that the
provisions of Section 607.109 of the Florida Act shall not apply to any
control-share acquisition of shares of Common Stock, and that shares of Common
Stock acquired in any such control-share acquisition shall have ascribed thereto
the full voting rights, powers and privileges provided by the Corporation's
Certificate of Incorporation, as amended, and these By-Laws.
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