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EXHIBIT 3(b)
RESTATED BYLAWS
OF
J. ALEXANDER'S CORPORATION
OFFICES
1. The principal office of the Corporation shall be at Nashville,
Tennessee, and the Corporation shall have such other offices at such other
places within or without the State of Tennessee as the Board of Directors of the
Corporation may from time to time determine or as the business of the
Corporation may require.
STOCKHOLDERS' MEETINGS
2. Annual Meetings.
(a) The annual meeting of the stockholders of the Corporation
shall be held at the principal office of the Corporation or at such other place
within or without the State of Tennessee as may be determined by the Board of
Directors and as may be designated in the notice of such meeting. The meeting
shall be held on a date set by the Board of Directors during the third, fourth,
or fifth month following the end of the Corporation's fiscal year. The business
to be transacted at such meeting shall be the election of directors and such
other business as shall be properly brought before the meeting.
(b) If the election of directors shall not be held on the day
here designated for any annual meeting, or at any adjournment of such meeting,
the Board of Directors shall call a special meeting of the stockholders as soon
as conveniently possible thereafter. At such meeting
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the election of directors shall take place and such election and any other
business transacted thereat shall have the same force and effect as at an annual
meeting duly called and held.
3. Special Meetings.
(a) Special meetings of the stockholders for any purpose or
purposes, unless otherwise prescribed by statute, may be called at any time by
(i) the President, (ii) the Chairman of the Board of Directors, (iii) a majority
of the Board of Directors, or (iv) subject to the procedures set forth in
Section 3(b) below, one or more stockholders owning of record on the date the
notice described in Section 3(b) below is received by the Secretary of the
Corporation 10% or more of the entire capital stock of the Corporation issued
and outstanding and entitled to vote.
(b) Any stockholder or stockholders who are the record owners
of the requisite percentage of the entire capital stock of the Corporation
issued and outstanding and entitled to vote and who desire to call a special
meeting in accordance with Section 3(a)(iv) above shall deliver written notice
by registered mail to the Secretary of the Corporation complying with the
requirements of Section 3A hereof. Upon receipt of said notice, the Secretary
shall determine (i) whether the stockholder or stockholders giving such notice
own as of the date of receipt of such notice by the Secretary the requisite
percentage of the entire capital stock of the Corporation issued and outstanding
and entitled to vote and (ii) whether the notice complies with Section 3A
hereof. Following such determinations, the Secretary shall deliver such notice
of the Board of Directors, who shall determine a place and time for such
meeting, which time shall not be less than seventy-five nor more than ninety
days after the receipt by the Secretary. Following such determination by the
Board of Directors as to a place and time for
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such meeting, it shall be the duty of the Secretary to cause notice to be given
to the stockholders entitled to vote at such meeting in the manner set forth in
Section 4(b) hereof that a meeting will be held at the time and place so
determined.
3A. Advance Notice of Nominations and Proposals of Business.
(a) Nominations of persons for election to the Board of
Directors and the proposal of business to be transacted by the stockholders may
be made at an annual or any special meeting of stockholders (i) pursuant to the
Corporation's notice with respect to such meeting, (ii) by or at the direction
of the Board of Directors or (iii) by any stockholder of record of the
Corporation who was a stockholder of record at the time of giving the notice
provided for in the following paragraph, who is entitled to vote at the meeting
and who has complied with the notice procedures set forth in this Section 3A.
(b) For nominations or other business to be properly brought
before an annual or special meeting by a stockholder pursuant to clause (iii) of
the foregoing paragraph (a) of this Section 3A, (i) the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation and
such notice shall comply with the requirements as to the content thereof set
forth in this Section 3A, (ii) the business must be a proper matter for
stockholder action under the Tennessee Business Corporation Act, (iii) if the
stockholder has provided the Corporation with a "Solicitation Notice" (as that
term is defined below), such stockholder must, in the case of a proposal, have
delivered a proxy statement and form of proxy to holders of at least the
percentage of the Corporation's voting shares required under applicable law to
carry any such proposal, or, in the case of a nomination or nominations, have
delivered a proxy statement and form of proxy to holders of a percentage of the
Corporation's voting shares reasonably believed
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by such stockholder to be sufficient to elect the nominee or nominees proposed
to be nominated by such stockholder, and must, in either case, have included in
such materials the Solicitation Notice and (iv) if no Solicitation Notice
relating thereto has been timely provided pursuant to this Section, the
stockholder proposing such business or nomination must not have solicited a
number of proxies sufficient to have required the delivery of such a
Solicitation Notice under this Section.
(c) To be timely, a stockholder's notice with respect to an
annual meeting shall be delivered to the Secretary at the principal executive
offices of the Corporation not less than seventy-five or more than ninety days
prior to the first anniversary (the "Anniversary") of the date on which the
Corporation first mailed its proxy materials for the preceding year's annual
meeting of stockholders; provided, however, if the date of the annual meeting is
advanced more than thirty days prior to or delayed by more than thirty days
after the anniversary of the preceding year's annual meeting, notice by the
stockholder to be timely must be so delivered not later than the close of
business on the later of the ninetieth day prior to the annual meeting or tenth
day following the day on which public announcement of the date of the meeting is
first made.
(d) The stockholder's notice shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to the person as would be required to be
disclosed in solicitations of proxies for the election of such nominees as
directors pursuant to Regulation 14A under the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), and the persons' written consent to serve
as a director if elected; (ii) as to any other business that the stockholder
proposes to bring before a meeting, a brief description of the business, the
reasons for conducting the business at the meeting and any
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material interest in the business of the stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; (iii) as to the stockholder giving
notice (A) the name and address of the stockholder, as they appear on the
Corporation's books, (B) if any other person or entity has beneficial ownership
(as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of the shares of the
Corporation owned of record by such stockholder, the name and address of all
such beneficial owners and the nature of their beneficial ownership of such
shares, (C) the class (and, if applicable, the series) and number of shares of
the Corporation that are owned of record by the stockholder, and if there are
beneficial owners of any of such shares, the number of such shares beneficially
owned by each such beneficial owner, and (D) whether either the stockholder or
beneficial owner, if any, intends to deliver a proxy statement and form of proxy
to holders of, in the case of a proposal, at least the percentage of the
Corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the Corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
(e) Notwithstanding anything in paragraph (b) of this Section
3A to the contrary, in the event that the number of directors to be elected to
the Board is increased and there is no public announcement naming all of the
nominees for director or specifying the size of the increased Board of the
Corporation at least fifty-five days prior to the Anniversary, a stockholder's
notice required by this Section 3A shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the Corporation.
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(f) Only persons nominated in accordance with the procedures
set forth in this Section 3A shall be eligible for election as and to serve as
directors and the only business that shall be conducted at an annual or special
meeting of the stockholders is business that has been brought before the meeting
in accordance with the procedures set forth in this Section 3A. The presiding
officer of the meeting shall have the power and the duty to determine whether a
nomination or any business proposed to be brought before the meeting has been
made in accordance with the procedures set forth in this Section 3A and, if any
proposed nomination or business is not in compliance with this Section 3A, to
declare that the defective proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
(g) For purposes of the Section 3A, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act.
(h) Notwithstanding the foregoing provisions of this Section
3A, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to matters
set forth in this Section 3A. Nothing in this Section 3A shall affect any rights
of stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
4. Notice and Purpose of Meetings; Waiver.
(a) Regular Meetings. Each stockholder of record entitled to
vote at any meeting shall be given in person or by mail written notice of the
place, date and hour of every
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regular meeting of stockholders. Such notice shall be delivered or mailed not
less than ten (10) days nor more than sixty (60) days before the meeting. Mailed
notice shall be deemed to be delivered when mailed to the stockholder's address
as it appears on the stock book or to such other address as the Stockholder
shall have designated in writing to the Secretary.
(b) Special Meetings. Each stockholder of record entitled to
vote at any meeting shall be given, in person or by mail, written notice of
every special meeting of stockholders. Such notice shall state the place, date,
hour, purpose or purposes for which the meeting is called, and the person or
persons calling the meeting, and shall be delivered or mailed not less than ten
(10) days nor more than sixty (60) days before the meeting. Mailed notice shall
be deemed to be delivered when deposited in the United States mail addressed to
the stockholder at his address as it appears on the stock book of the
Corporation or to such other address as the stockholder shall have designated in
writing to the Secretary. No publication of notice of the meeting shall be
required.
(c) Waiver. A stockholder may waive the notice of either a
regular or special meeting by attendance, either in person or by proxy, at the
meeting, or by so stating in writing, either before or after such meeting.
Attendance at a meeting for the express purpose of objecting that the meeting
was not lawfully called or convened shall not, however, constitute a waiver of
notice.
5. Quorum.
Except as otherwise provided by law, a quorum at all meetings of
stockholders shall consist of the holders of record of a majority of the shares
entitled to vote thereat, present in person or by proxy.
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6. Record Date; Voting.
The Board of Directors may fix in advance of any meeting of the
stockholders, regular or special, a record date for the determination of
stockholders entitled to notice of, and the right to vote at, such meeting; such
record date shall be not more than seventy-five (75) nor less than eleven (11)
days prior to the date of such meeting. At such meetings every stockholder
having the right to vote shall be entitled to vote in person or by proxy
appointed by an instrument in writing subscribed by such stockholder and bearing
a date not more than eleven (11) months prior to said meeting, unless said
instrument provides for a longer period. Each stockholder shall have one vote
for each share of stock registered in his name on the books of the Corporation.
All elections shall be had and all questions decided by a plurality vote of the
number of shares represented in person or by proxy. At any meeting of the
stockholders, either regular or special, the stockholders by majority vote may
remove the entire Board of Directors or any number of the directors, with or
without cause, and where such removal shall have been made, successor directors
shall be at once elected to serve the unexpired terms of the directors so
removed.
7. Presiding Officer.
(a) Meetings of the stockholders shall be presided over by the
President or if he is not present by a Vice President, or if neither the
President nor a Vice President is present, by a chairman to be chosen by a
majority of the stockholders entitled to vote at the meeting who are present in
person or by proxy. The Secretary of the corporation, or, in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither the
Secretary nor an Assistant Secretary is present, the meeting shall choose any
person present to act as secretary of the meeting.
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DIRECTORS
8. Number, Qualification, Term, Quorum and Vacancies.
(a) The property, affairs and business of the Corporation
shall be managed by a Board of Directors of not less than three (3) nor more
than fifteen (15) persons. Except as hereinafter provided, directors shall be
elected at the annual meeting of the stockholders and each director shall serve
for one year and until his successor shall be elected and qualified.
(b) In addition to the powers and authorities by these Bylaws
expressly conferred upon them, the Board 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. The number of the Board of Directors may
be increased from time to time by either the stockholders or directors. If the
number of directors be increased by action of the stockholders a vacancy or
vacancies caused by such increase shall be filled by the stockholders in the
same manner as at an annual election and if the number of directors be increased
by action of the directors, then such increase shall be effected by a majority
of the entire Board of Directors, and any vacancy or vacancies caused by such
increase in number shall be filled by the directors. Directors elected to fill
vacancies caused by increase in number of the Board shall hold office until the
annual meeting of stockholders until their successors are chosen and qualified.
(c) Directors need not be stockholders of the Corporation
unless the number of directors is less than three (3) persons. Directors need
not be residents of Tennessee.
(d) A majority of the directors in office shall be necessary
to constitute a quorum for the transaction of business. If, at any meeting of
the Board of Directors, there shall
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be less than a quorum present, a majority of those present may adjourn the
meeting, without further notice, from time to time until a quorum shall have
been obtained. In case there are vacancies on the Board of Directors, other than
vacancies created by the removal of a director or directors by the stockholders,
the remaining directors, although less than a quorum, may by a majority vote
elect a successor or successors for the unexpired term or terms.
9. Meetings.
Meetings of the Board of Directors may be held either within or without
the State of Tennessee. Regular meetings of the Board of Directors shall be held
at such times as are fixed from time to time by resolution of the Board, and may
be held without notice. Special meetings may be held at any time upon call of
the President or a Vice President, or any two (2) directors, upon personal
notice, or written or telegraphic notice deposited in the United States mail or
delivered to the telegraph company at least one (1) day prior to the day of the
meeting. A meeting of the Board of Directors shall be held without notice
immediately following the annual meeting of the stockholders. Special meetings
may be held at any time without notice if all the directors are present or if,
before or after the meeting, those not present waive such notice in writing.
Notice of a meeting of the Board of Directors need not state the purpose of, nor
the business to be transacted at, such meeting.
10. Removal.
(a) At any meeting of the stockholders, any director or
directors may be removed from office, without assignment of any reason
therefore, by a majority vote of the shares outstanding and entitled to vote.
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(b) At any meeting of the Board of Directors, any director or
directors may be removed from office for cause, as that term is defined in
Tennessee Code Annotated, ss. 48-807, by a majority of the entire Board of
Directors.
(c) When any director or directors are removed, new directors
may be elected at the same meeting of the stockholders, or Board of Directors as
the case may be, for the unexpired term of the director or directors removed. If
the stockholders fail to elect persons to fill the unexpired term or terms of
the director or directors removed by them, such unexpired terms shall be
considered vacancies on the Board to be filled by the remaining directors.
11. Committees.
(a) The Board of Directors is authorized, in its discretion,
to appoint from its members an Executive Committee of not less than three nor
more than five members who shall be vested with all the powers of the Board of
Directors when it is not in session, including but not limited to the power to
(1) Adopt, amend or repeal the bylaws,
(2) Submit to stockholders any corporate action requiring
stockholders' authorization;
(3) Fill vacancies in the Board of Directors or in
any committee; and
(4) Declare dividends or make other corporate
distributions.
(b) The Board of Directors is authorized, in its discretion,
to appoint from its members a Finance Committee which shall consider and pass on
all questions and matters arising in connection with the investment of the
Corporation's funds, the number of members of this
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Committee to be determined by the directors. Members of the Finance Committee
need not be members of the Board of Directors.
(c) The Board of Directors is authorized, in its discretion,
to appoint such other committees as may seem desirable in the conduct of the
Corporation's affairs.
12. Compensation.
Directors, and members of any committee of the Board of Directors,
shall be entitled to such reasonable compensation for their services as
directors and members of any such committee as shall be fixed from time to time
by resolution of the Board of Directors, and shall also be entitled to
reimbursement for any reasonable expenses incurred in attending such meetings.
The compensation of directors may be on such basis as is determined in the
resolution of the Board of Directors. Any director receiving compensation under
these provisions shall not be barred from serving the Corporation in any other
capacity and receiving reasonable compensation for such other services.
OFFICERS
13. Number.
The officers of the Corporation shall be chosen by the directors and
shall be a Board Chairman, a President, a Secretary and a Treasurer and such
other officers as may be from time to time elected by the Board of Directors.
One person may hold any two offices except the President may not hold the office
of Secretary.
14. Term of Office.
The principal officers shall be chosen annually by the Board of
Directors at the first meeting of the Board following the stockholders' annual
meeting, or as soon thereafter as is
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conveniently possible. Subordinate officers may be elected from time to time.
Each officer shall serve until his successor shall have been chosen and
qualified, or until his death, resignation or removal.
15. Removal.
Any officer may be removed from office, with or without cause, at any
time by the affirmative vote of a majority of the Board of Directors then in
office. Such removal shall not prejudice the contract rights, if any, of the
persons so removed.
16. Vacancies.
Any vacancy in an office from any cause may be filled for the unexpired
portion of the term by the Board of Directors.
17. Duties.
(a) The Board Chairman shall preside at all meetings of the
Board of Directors and shall exercise such powers and perform such other duties
as may be directed by the Board.
(b) The President shall preside at all meetings of the
stockholders and directors; he shall have general supervision over the active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board are carried into effect. He shall execute bonds,
mortgages and other contracts and shall be ex officio, a member of all standing
committees and shall have the general powers and duties of supervision and
management usually vested in the office of President of a corporation.
(c) The Vice President or Vice Presidents (if there be one or
more) shall be active executive officers of this Corporation, shall assist the
President in the active management
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of the business and shall perform such other duties as the Board of Directors
may from time to time prescribe.
(d) The Secretary shall attend all sessions of the Board and
all meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose; and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and of the Board of Directors when
required, and shall perform such other duties as may be prescribed by the Board
of Directors.
(e) The Treasurer shall have the custody of the Corporation
funds and securities, and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
He shall disburse the funds of the Corporation as may be ordered by the Board,
taking proper vouchers for such disbursements and shall render to the President
and directors at the regular meetings of the Board or whenever they may require
it, an account of all of his transactions as Treasurer, and the financial
condition of the Corporation. He shall give the Corporation a bond, if required
by the Board of Directors, in a sum and with one or more sureties satisfactory
to the Board for the faithful performance of his duties of his office and for
the restoration to the Corporation in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
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(f) Other officers appointed by the Board of Directors shall
exercise such powers and perform such duties as may be delegated to them.
(g) In case of the absence or disability of any officer of the
Corporation and of any person hereby authorized to act in his place during such
period of absence or disability, the Board of Directors may from time to time
delegate the powers and duties of such officer to any officer, or any director,
or any other person whom it may select.
18. Salaries.
The salaries of all officers of the Corporation shall be fixed by the
Board of Directors. No officer shall be ineligible to receive such salary by
reason of the fact that he is also a director of the Corporation and receiving
compensation therefor.
19. Indemnification of Officers and Directors.
The Corporation shall indemnify each present and future director and
officer of the Corporation, or any person who may have served at its request as
a director or officer of another company in which it owns shares of capital
stock (and, in either case, his heirs, executors and administrators), to the
full extent allowed by the laws of the State of Tennessee, both as now in effect
and as hereafter adopted.
CERTIFICATES OF STOCK
20. Form.
(a) The interest of each stockholder of the Corporation shall
be evidenced by a certificate or certificates for shares of stock, certifying
the number of shares represented thereby and in such form, not inconsistent with
the Charter, as the President may from time to time select.
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(b) The certificates of stock shall be signed by the President
or a Vice President and by the Secretary or an Assistant Secretary or the
Treasurer. Where any certificate is manually signed by a transfer agent or by a
registrar, the signatures of the President, Vice President, Secretary, Assistant
Secretary, and/or Treasurer upon such certificate may be facsimiles, engraved or
printed. In case any officer who has signed or whose facsimile signature has
been placed upon any certificate shall have ceased to be such before the
certificate is issued, it may be issued by the Corporation with the same effect
as if such officer had not ceased to be such at the time of its issue.
21. Subscriptions for Shares.
Unless the subscription agreement provides otherwise, subscriptions for
shares, regardless of the time when they are made, shall be paid in full at such
time, or in such installments and at such periods, as shall be specified by the
Board of Directors. All calls for payments on subscriptions shall carry the same
terms with regard to all shares of the same class.
22. Transfers.
(a) Transfers of shares of the capital stock of the
Corporation shall be made only on the books of the Corporation by the registered
owner thereof, or by his duly authorized attorney, upon surrender of the
certificate or certificates for such shares properly endorsed and with all taxes
thereon paid.
(b) The person in whose name shares of stock are registered on
the books of the Corporation shall be deemed by the corporation to be the owner
thereof for all purposes. However, if any transfer of shares is made only for
the purpose of furnishing collateral security,
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and such fact is made known to the Secretary of the Corporation, the entry of
the transfer shall record such fact.
23. Lost, Destroyed, or Stolen Certificates.
No certificate for shares of stock in the Corporation, shall be issued
in place of any certificate alleged to have been lost, destroyed, or stolen
except on production of evidence, satisfactory to the Board of Directors, of
such loss, destruction or theft, and, if the Board of Directors so requires,
upon the furnishing of an indemnity bond in such amount (but not to exceed twice
the value of the shares represented by the certificate) and with such terms and
such surety as the Board of Directors may, in its discretion, require.
CORPORATE ACTIONS
24. Deposits.
The Board of Directors shall select banks, trust companies, or other
depositories in which all funds of the Corporation not otherwise employed shall,
from time to time, be deposited to the credit of the Corporation. All checks or
demands for money and notes of the Corporation shall be signed by such officers
or officer as the Board of Directors may from time to time designate.
25. Voting Securities Held by the Corporation.
Unless otherwise ordered by the Board of Directors, the President shall
have full power and authority on behalf of the Corporation to attend and to act
and to vote at any meeting of security holders of other corporations in which
the Corporation may hold securities. At such meeting the President shall possess
and exercise any and all rights and powers incident to the ownership of such
securities which the Corporation might have possessed and exercised if it had
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been present. The Board of Directors may, from time to time, confer like powers
upon any other person or persons.
26. Fiscal Year.
The fiscal year of the corporation shall be determined by the Board of
Directors and in the absence of such determination, shall be the calendar year.
CORPORATE SEAL
27. The Corporation shall not have a corporate seal.
AMENDMENT OF BYLAWS
28. These Bylaws may be altered or amended by the affirmative vote
of the holders of a majority of the stock issued and outstanding and entitled to
vote thereat at any regular or special meeting of the stockholders if notice of
the proposed alteration or amendment is contained in the notice of the meeting,
or by the affirmative vote of a majority of the Board of Directors at any
regular or special meeting if notice of the proposed alteration or amendment is
contained in the notice of the meeting.
STOCKHOLDERS
29. The Board of Directors shall not have the power to submit to
the stockholders any plan of merger or share exchange that does not comply with
this Article 29. The vote of stockholders of the Corporation required to approve
any Business Combination shall be as set forth in this Article. The term
"Business Combination" shall have the meaning ascribed to it in (a)(B) of this
Article; each other capitalized term used in this Article shall have the meaning
ascribed to it in (c) of this Article.
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(a)(A) In addition to any affirmative vote required by law or the
Charter or Bylaws and except as otherwise expressly provided in (b) of this
Article;:
(1) Any merger or share exchange of the Corporation or any
Subsidiary with (i) any Interested Stockholder or (ii) any other corporation or
entity (whether or not itself an Interested Stockholder) which is, or after each
merger or consolidation would be, an Affiliate of an Interested Stockholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
assets of the Corporation or any Subsidiary having an aggregate Fair Market
Value of $2,000,000 or more; or
(3) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value of $2,000,000
or more, other than the issuance of securities upon the conversion of
convertible securities of the Corporation or any Subsidiary which were not
acquired by such Interested Stockholder (or such Affiliate) from the Corporation
or a Subsidiary; or
(4) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(5) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of
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its Subsidiaries or any other transaction (whether or not with or into or
otherwise involving an Interested Stockholder) which in any such case has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class or series of stock or securities convertible
into stock of the Corporation or any Subsidiary which is directly or indirectly
beneficially owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder; shall not be consummated without the affirmative vote of
the holders of at least 80 percent of the combined voting power of the then
outstanding shares of stock of all classes and series of the Corporation
entitled to vote generally in the election of directors ("Voting Stock"), in
each case voting together as a single class (it being understood that for
purposes of this Article, each share of the Voting Stock shall have the number
of votes granted to it pursuant to the Charter). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or by the Charter or in any agreement with
any national securities exchange or otherwise.
(B) The term "Business Combination" as used in this Article
shall mean any transaction that is referred to in any one or more of clauses (1)
through (5) of (a)(A) of this Article.
(b) The provisions of (a) of this Article shall not be applicable
to any Business Combination in respect of which all of the conditions specified
in either of the following paragraphs A and B are met, and such Business
Combination shall require only such affirmative vote as is required by law and
any other provision of the Charter:
(A) such Business Combination shall have been approved by a
majority of the Disinterested Directors, or
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(B) each of the six conditions specified in the following
clauses (1) through (6) shall have been met;
(1) the aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the Business Combination (the
"Consummation Date") of any consideration other than cash to be received by
holders of Common Stock in such Business Combination shall be at least equal to
the higher of the following:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any shares of Common Stock
beneficially owned by the Interested Stockholder which were acquired
beneficially by such Interested Stockholder (x) within the two-year
period immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Stockholder, whichever is
higher; or
(ii) the Fair Market Value per share of Common Stock
on the Announcement Date or on the Determination Date, whichever is
higher; and
(2) the aggregate amount of the cash and the Fair Market
Value as of the Consummation Date of any consideration other than cash to be
received per share by holders of shares of any other class or series of Voting
Stock shall be at least equal to the highest of the following (it being intended
that the requirements of this clause (B)(2) shall be required to be met with
respect to every class and series of such outstanding Voting Stock, whether or
not the Interested Stockholder beneficially owns any shares of a particular
class or series of Voting Stock):
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(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any shares of such class or
series of Voting Stock beneficially owned by the Interested
Stockholder which were acquired beneficially by such Interested
Stockholder (x) within the two-year period immediately prior to the
Announcement Date or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential amount
per share to which the holders of shares of such class or series of
Voting Stock are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; and
(iii) the Fair Market Value per share of such class or
series of Voting Stock on the Announcement Date or the Determination
Date, whichever is higher; and
(3) the consideration to be received by holders of a
particular class or series of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form (including the same proportions, to the
extent that more than one form of consideration is used) as was previously paid
in order to acquire beneficially shares of such class or series of Voting Stock
that are beneficially owned by the Interested Stockholder on the Determination
Date; and
(4) after such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such Business
Combination;
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(i) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to declare
and pay at the regular dates therefor the full amount of any dividends
(whether or not cumulative) payable on any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation;
(ii) there shall have been (x) no reduction in the
annual rate of dividends paid on the Common Stock (except as necessary
to reflect any subdivision of the Common Stock), except as approved by
a majority of the Disinterested Directors, and (y) an increase in such
annual rate of dividends (as necessary to prevent any such reduction)
in the event of any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar transaction
which has the effect of reducing the number of outstanding shares of
Common Stock, unless the failure so to increase such annual rate was
approved by a majority of the Disinterested Directors; and
(iii) such Interested Stockholder shall not have
become the beneficial owner of any shares of Voting Stock except as
part of the transaction in which it became an Interested Stockholder;
and
(5) after such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder), of
any loans, advances, guarantees, pledges or other financial assistance or tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise;
and
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(6) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to all
public stockholders of the Corporation at least 45 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
(c) For the purposes of this Article:
(A) A "person" shall mean any individual, firm, corporation or
other entity.
(B) "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary) who or which;
(1) is the beneficial owner, directly or indirectly, of more
than 20 percent of the combined voting power of the then outstanding shares of
Voting Stock; or
(2) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 20 percent or more of the combined voting
power of the then outstanding shares of Voting Stock; or
(3) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock that were at any time within
the two-year period immediately prior to the date in question beneficially owned
by any Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933, as amended.
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(C) A person shall be a "beneficial owner" of any Voting Stock:
(1) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote or direct the vote
pursuant to any agreement, arrangement or understanding; or
(3) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
(D) For the purposes of determining whether a person is an
Interested Stockholder pursuant to (c)(B) of this Article, the number of shares
of Voting Stock deemed to be outstanding shall include shares deemed owned
through application of (c)(C) of this Article but shall not include any other
shares of Voting Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(E) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on January
1, 1988.
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(F) "Subsidiary" means any corporation at least 50 percent of
whose outstanding stock having ordinary voting power in the election of
directors is owned, directly or indirectly, by the Corporation or by a
Subsidiary or by the Corporation and one or more Subsidiaries; provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in (c)(B) of this Article, the term "Subsidiary" shall mean only a
corporation of which at least 50 percent of each class of equity security is
owned, directly or indirectly by the Corporation.
(G) "Disinterested Director" means any member of the Board of
Directors of the Corporation who was a member of the Board of Directors of the
Corporation on January 19, 1988, or a person recommended to succeed a
Disinterested Director and designated a Disinterested Director by a majority of
Disinterested Directors then on the Board of Directors and who is subsequently
elected to the Board of Directors.
(H) "Fair Market Value" means: (1) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed or, if such stock
is not listed on any such exchange, the highest closing sales price or bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotation System or any system then in use, or if no
such quotation is available, the fair market value on the date in question of a
share of such stock as
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determined by a majority of the Disinterested Directors in good faith; and (2)
in the case of stock of any class or series which is not traded on any United
States registered securities exchange nor in the over-the-counter market or in
the case of property other than cash or stock, the fair market value of such
property on the date in question as determined by a majority of the
Disinterested Directors in good faith.
(I) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in (b)(B)(1) and (2) of this Article shall include the shares of Common
Stock and/or the shares of any other class of outstanding Voting Stock retained
by the holders of such shares.
(J) "Announcement Date" means the date of first public
announcement of the proposed Business Combination.
(K) "Determination Date" means the date on which the
Interested Stockholder became an Interested Stockholder.
(d) A majority of the Disinterested Directors of the Corporation
shall have the power and duty to determine, on the basis of information known to
them after reasonable inquiry, all facts necessary to determine compliance with
this Article, including, without limitation, (A) whether a person is an
Interested Stockholder, (B) the number of shares of Voting Stock beneficially
owned by any person, (C) whether a person is an Affiliate or Associate of
another person, (D) whether the requirements of (b) of this Article have been
met with respect to any Business Combination, and (E) whether the assets which
are the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market
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Value of $2,000,000 or more. The good faith determination of a majority of the
Disinterested Directors on such matters shall be conclusive and binding for all
purposes of this Article.
(e) Nothing contained in this Article shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
(f) Notwithstanding anything contained in the Bylaws to the contrary,
the unanimous vote of all directors which shall include at least four
Disinterested Directors shall be required to alter, amend, or repeal this
Article or to adopt any provision inconsistent therewith.
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