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Exhibit 3.3
MEDEX, INC.
CODE OF BY-LAWS
ARTICLE I
MEETINGS OF BOARD
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Section 1. Organization of Meetings
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At each meeting of the Board of Directors, the Chairman, or, in his
absence, the President, or, in the absence of both the foregoing, a Chairman
chosen by a majority of the Board of Directors present, shall preside. The
Secretary, or, in his absence, any person appointed by the Chairman, shall
perform the duties of Secretary of the meeting and shall keep the minutes
thereof.
Section 2. Place of Meetings
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The meetings of the Board shall be held at such place or places, within
or without the State of Ohio, as may from time to time be fixed by the Board of
Directors, or as shall be specified or fixed in the respective notices or
waivers of notice thereof.
Section 3. Meetings
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Meetings of the Board of Directors shall be held whenever called by the
Chairman, or, in his absence, the President, or by any two Directors. Unless
waived before, at or after the meeting as hereinafter provided, notice of each
such meeting shall be given by the Chairman or the persons calling such meetings
to each Director in any of the following way:
(1) By orally informing him of the meeting in person or by telephone
not later than two days before the date of the meeting.
(2) By personal delivery to him not later than two days before the date
of the meeting of written notice thereof.
(3) By mailing written notice to him, or by sending notice to him by
telegram, cablegram, radiogram, any such notice to be posted or dispatched, as
the case may be, a sufficient length of time before the meeting so that in the
ordinary course of the mail or of the transmission of telegrams, cablegrams, or
radiograms, as the case may be, delivery thereof would normally be made to him
not later than two days before the date of the meeting.
Unless otherwise required by this Code of By-Laws, the notice of any
meeting need not specify the purpose or purposes of the meeting. Notice of any
meeting of the Board may be waived by any Director, either before, at or after
the meeting, in writing or by telegram, cablegram or radiogram.
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Section 4. Order of Business
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The order of business, but not the agenda at meetings of the Board
shall be such as the Chairman may prescribe or follow, subject, however, to his
being overruled with respect thereto by a majority vote of the members of the
Board present.
ARTICLE II
OFFICERS OF THE COMPANY AND THEIR AUTHORITY
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Section 1. Creation of the Offices of Chairman of the Board and Vice Chairman
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of the Board
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(1) There is hereby created the office of Chairman of the Board, who
shall be referred to in these By-Laws as the "Chairman." The Chairman shall have
such authority as is or may be conferred by the General Corporation Law of Ohio,
the Articles of Incorporation, the Code of Regulations, these By-Laws of the
Company and resolutions of the Board of Directors. The Chairman shall be a
director.
The Chairman of the Board shall be responsible for the organization of
and shall conduct as presiding Officer all shareholder meetings and, with an
Agenda provided by the Chief Executive Officer and such additional matters as
may be requested by individual directors, shall conduct all meetings of the
Board of Directors of the Company.
(2) There is hereby created the office of Vice Chairman of the Board,
who shall be referred to in these By-Laws as the Vice Chairman. The Vice
Chairman shall have such authority as is or may be conferred by the General
Corporation Law of Ohio, the Articles of Incorporation, the Code of Regulations,
these By-Laws of the Company and resolutions of the Board of Directors.
Section 2. Creation of the Office of Chief Executive Officer
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There is hereby created the office of Chief Executive Officer of the
Company, who shall be referred to in these By-Laws as the "CEO." The CEO shall
have such authority as is or may be conferred by the General Corporation Law of
Ohio, the Articles of Incorporation, and Code of Regulations and these By-Laws,
including the primary responsibility for and authority over the following
matters:
(1) The direction of the senior management in the development of the
basic mission, objective, policies, and operating plans of the company, to
organize this work into a short term (3 year) and long term (5 year) strategic
plan for presentation to and approval by the Board of Directors. Further, to
periodically and regularly see that these plans are reviewed and amended as
necessary by the Board of Directors.
(2) The recommendation to the Board of Directors of employment, terms
of employment, compensation, termination, terms of termination, including
performance appraisals of all Officers of the Company appointed by the Board of
Directors.
(3) Have executive authority over and direct supervision of and receive
the reports of the Chief Operating Officer of the Company.
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(4) Have final authority over all employment, compensation, terms of
employment, changes in terms of employment or compensation, and termination of
employment of all Company personnel to the level of Manager and Director.
Prescribe the specific limits of the authority of subordinates. Resolve any
conflicts arising between subsidiaries, operating groups, staff departments or
other functioning units.
(5) Have in accordance with such authority as is conferred by the Board
of Directors, the General Corporation Law of Ohio, the Articles of
Incorporation, the Code of Regulations, ultimate executive authority through the
COO over all the financial and legal affairs of the Company, receive the reports
of the CFO, The Vice President for Corporate Quality Assurance and Regulatory
Affairs, and the Secretary and General Counsel.
(6) Have responsibility for the long range physical and financial
planning of the Company, including the strategic planning process.
(7) Establish and maintain an effective system of communication
throughout the company and with the Board of Directors.
(8) The CEO of the Company is hereby authorized to execute and deliver
on behalf of the Company all contracts, deeds, mortgages, leases, promissory
notes, bonds, bills, drafts and other instruments in writing as he may deem
necessary and proper in the conduct of the Company's business. The CEO shall
sign all share certificates. The CEO is also authorized to borrow any money or
otherwise incur any indebtedness on behalf of the Company which the Board of
Directors by resolution deem necessary and proper in the conduct of the
Company's business. Provided, however, the CEO is authorized to borrow money or
otherwise incur an indebtedness on behalf of the Company up to a sum established
by resolution of the Board of Directors, without Board approval. Except as
otherwise required by law or by the Code of Regulations of the Company,
resolutions of the Board of Directors or these By-Laws, no other Officer shall
execute or deliver on behalf of the Company any instrument in writing or shall
borrow any money or incur any indebtedness without the specific authorization of
the Board of Director and the CEO.
(9) Have authority over and executive responsibility for all merger
and acquisition activities of the Company.
(10) Have executive responsibility for all shareholder relations
including planning of the annual and special meeting of shareholders and reports
to the shareholders. Have responsibility for preparation of and presentation to
the Chairman of the Board, the Agenda for each Board meeting.
Section 3. Creation of the Office of Chief Operating Officer
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There is hereby created the office of Chief Operating Officer of the
Company, who shall be referred to in these By-Laws as the "COO." The COO shall
have such authority as is or may be conferred by these By-Laws and resolutions
of the Board of Directors, including the responsibility for and authority over
the following matters:
(1) Recommending to the CEO the employment, terms of employment,
compensation, changes in terms of employment or compensation, termination, terms
of termination, of all Company personnel reporting to the COO.
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(2) Have executive authority over and direct supervision of, and
receive the reports of all of the Officers of the Company except CEO, the CFO,
the Vice President for Corporate Quality Assurance and Regulatory Affairs, Vice
President Sales and Marketing, Senior Vice President Medex Europe, and the
Secretary and General Counsel and their direct subordinates.
(3) Have final authority over all employment, compensation, terms of
employment, changes in terms of employment or compensation, and term of
employment of all Company personnel under his supervision below the title of
Manager and Director.
(4) Have executive authority over and responsibility for the
manufacturing, Human Resources/Organizational Development, and research and
development operations of the Company and shall have such executive authority to
direct the CFO, the Vice President for Corporate Quality Assurance and
Regulatory Affairs, and the Secretary and General Counsel in regard to their
duties as is necessary to carry out this responsibility. Have authority and
responsibility to guide and direct the management in the development, production
and servicing of the company's products and services through out the world, to
achieve budgeted profits, financial criteria and preservation of the company
capital.
(5) Develop policies to ensure the execution of the policies of the
CEO.
(6) Have authority to direct creation and use of adequate and equitable
personnel and human resource policies. Participate and direct acquisition and
growth activities in accordance with the plans of the CEO and the Board of
Directors.
(7) Have authority over activities as may be directed from time to time
by the CEO.
(8) Have authority to delegate activities and responsibilities as
necessary to those reporting to the COO.
(9) In case of the temporary absence or disability of the CEO, the COO
of the Company is hereby authorized to execute and deliver on behalf of the
Company all contracts, deeds, mortgages, leases, promissory notes, bonds, bills,
drafts and other instruments in writing as he may deem necessary and proper in
the conduct of the Company's business. The COO may also sign all share
certificates. With the written authority of the CEO, the COO is authorized to
borrow any money or otherwise incur any indebtedness on behalf of the Company up
to the limit established by the Board of Directors for the CEO. Except as
otherwise required by law, by the Code of Regulations of the Company, or by
these By-Laws, no other Officer shall execute or deliver on behalf of the
Company any instruments in writing or shall borrow any money or incur any
indebtedness without the specific authorization of the Board of Directors.
(10) In the temporary absence or disability of the CEO and with the
written approval of the majority of the Board of Directors the COO may exercise
any power of the CEO granted in these By-Laws.
Section 4. Creation of the Office of President
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There is hereby created the office of President of the Company, who
shall be referred to in these By-Laws as the "President" and shall have such
authority as is or may be conferred by the General Corporation Law of the State
of Ohio, the Articles of Incorporation, the Code of Regulations, these By-Laws
of the Company, and resolutions of the Board of Directors.
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Section 5. Creation of the Office of Executive Vice President
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There is hereby created the office of Executive Vice President of the
Company, who shall be referred to in these By-Laws as the "Executive Vice
President." The Executive Vice President shall have such authority as is or may
be conferred by the Code of Regulations, these By-Laws of the Company, and
resolutions of the Board of Directors.
Section 6. Creation of the Office of Senior Vice President and Vice
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President
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There is hereby created the offices of Senior Vice-President and Vice
President of the Company, who shall be referred to in these By-Laws as "Senior
Vice-President and Vice President." There shall be as many Senior
Vice-Presidents and Vice Presidents as may be created from time to time by
resolution of the Board of Directors and these Senior Vice-Presidents and Vice
Presidents shall have such authority as is or may be conferred by the Code of
Regulations, these By-Laws of the Company, and resolutions of the Board of
Directors. There is hereby created the office of Assistant Vice President of the
Company, who shall be referred to as "Assistant Vice President." There shall be
as many Assistant Vice Presidents with such authority as is conferred by the
Code of Regulations, these By-laws of the Company and resolutions of the Board
of Directors.
Section 7. Creation of the Office of Chief Financial Officer
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There is hereby created the office of Chief Financial Officer of the
Company, who shall be referred to in these By-Laws as the "CFO." The CFO shall
report to the CEO. The CFO shall have such authority as is or may be conferred
by the General Corporation Law of Ohio, the Articles of Incorporation, the Code
of Regulations, the By-Laws of the Company and resolutions of the Board of
Directors, including the primary responsibility for and authority over the
following matters:
(1) The preservation of the balance sheet, and earnings of the company
through planning, budgeting and forecasting.
(2) The development and operation of a system of internal controls to
insure the integrity and reliability of the financial and management accounting
and reporting.
(3) The providing of accurate and timely information, counsel and
judgement to the CEO, the COO, and other officers on the executive team.
(4) The implementation of effective accounting policies and systems
for financial management of the company.
(5) The leadership and integration of related financial management
functions and accountabilities including, controllership, treasury, tax, parts
of strategic planning and investor relations and the internal administration of
stock options, profit sharing trust and other related employee benefits.
Section 8. Creation of the Office of Treasurer
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There is hereby created the office of Treasurer of the Company, who
shall be referred to in the By-Laws as the "Treasurer". The Treasurer shall
report to the C.F.O. The Treasurer shall have such authority as is or may be
conferred by the General Corporation Law of Ohio,
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the Articles of Incorporation, the Code of Regulations, the By-Laws of the
Company and resolutions of the Board of Directors.
Section 9. Creation of the Office of Secretary
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There is hereby created the office of Secretary of the Company, who
shall be referred to in these By-Laws as the "Secretary." The Secretary shall
report to the CEO. The Secretary shall have such authority as is or may be
conferred by the General Corporation Law of Ohio, the Articles of Incorporation,
the Code of Regulations, the By-Laws of the Company and resolutions of the Board
of Directors.
Section 9. Deposits and Bank Accounts
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Such general and special bank accounts shall be opened with such banks,
trust companies or other depositories as the Board may designate or select for
the purpose.
All funds of the Company shall be deposited to the credit of the
Company in such depositories unless they are invested in accordance with
directions set forth by resolution of the Board of Directors.
ARTICLE III
COMPENSATION AND RETIREMENT OF DIRECTORS
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Section 1. Compensation of Directors
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The compensation of Directors of the Company shall be established from
time to time by the Board of Directors in accordance with the provision of
Article 4.07 of the Code of Regulations and these By-Laws.
(1) The annual directors fee shall be $ 5,000 payable $1,250 per
quarter.
(2) The Board meeting fee shall be $1,000 per meeting.
(3) The Committee meeting fee shall be $400 per meeting for the
committee members and $500 per meeting for the Chairman.
Section 2. Retirement Ages and Ages for Eligibility for Election
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(1) Unless an exception is created pursuant to Section 4 hereof, no
Director of the Company shall be eligible to be elected as a Director of the
Company if the term for which the Director is to be elected begins after the
annual meeting of the Company following that Directors' seventieth (70th)
birthday.
(2) Any Director who is no longer eligible for election as a Director
of the Company by virtue of Section 2. (1) above and who is not an Emeritus
Director under Article IV of these By-Laws and is otherwise in good standing,
shall be a retired Director of the Company.
Section 3. Minimum Retirement Age
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(1) Any Director of the Company may elect to retire by notifying
the Company in writing of such election if,
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(2) The Director is sixty-two (62) years of age and in good standing
with the Company and if,
(3) The Director has served a minimum of five (5) years as a Director
and if,
(4) The Director has not elected or been granted Emeritus status under
Article IV of these By-Laws.
Section 4. Exception to Retirement and Eligibility for Election Ages
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(1) The Board of Directors may by resolution adopted by affirmative
vote of seventy-five (75%) percent of the Directors of the Company waive for a
specific period any of the provisions of Section 2 of this Article, as to a
specific individual Director.
(2) The seventy-five (75%) percent affirmative vote shall not include
the vote of the Director affected.
Section 5. Retirement Benefit
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(1) Eligibility:
Any outside Director (non employee) who has retired status in
accordance with the provisions of Article III of these By-Laws and is otherwise
in good standing, shall be entitled to receive the following annual benefit paid
at least in quarterly payments.
(2) The Annual Benefit:
Shall be three percent (3%) of the current annual fee times the
number of whole years of service as a Director.
(A) However, the maximum annual benefit shall be fifty
(50%) percent of the current annual fee.
(B) The annual benefit shall be payable until the death
of the retired Director, or for fifty percent (50%)
of the whole years of service of the retired Director
or for a maximum of ten (10) years, whichever is
first.
Section 6. Vote Required to Change Directors Compensation or Amend this
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Article III
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The compensation of any Director, Director Emeritus or retired Director
of the Company provided for by Sections 1 or 5 of this Article III shall not be
stopped, reduced or otherwise diminished in any way or from any cause, prior to,
during or following any "business combination" as defined in Article Twelfth of
the Articles of Incorporation of the Company, and Article IV of these By-Laws,
nor shall this Article III of the By-Laws be amended, notwithstanding the
provisions of Article VII of these Company By-Laws, prior to, during or
following any "business combination" as defined in Article Twelfth of the
Company's Articles of Incorporation, unless the stopping, reducing or otherwise
diminishing of Directors compensation or the amending of this section is
approved by 80% of the "continuing Directors"
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of the Company as "continuing Director" is defined by Article Twelfth of the
Articles of Incorporation of the Company.
Section 7. Alternate Compensation
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In the event, that contrary to the provisions of Section 6 of this
Articles III of these By-Laws there is in fact, prior to, during or following a
"business combination" as defined in Section 6, a diminution of Director
compensation or a retired Directors retirement benefit from any cause, then
there shall be immediately due and payable, from the Company, to each Director
affected, in one lump sum, together with any court costs and attorney's
necessary to collect it, an amount equal to two times the total compensation
received by that Director or retired Director during the twelve months
immediately preceding the effective date of the act or cause diminishing the
Directors compensation or in the case of a retired Director, an amount equal to
the maximum total amount that the retired Director could possibly receive over
the life of the benefit pursuant to Article II Section 5, plus an amount equal
to any court cost and attorney's fees necessary to collect it.
ARTICLE IV
EMERITUS DIRECTORS
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Section 1. Eligibility For Director Emeritus
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(1) Any Director of the Company who is eligible to be a retired
Director of the Company may upon obtaining such eligibility notify the Company
in writing of the Director's decision to become a Director Emeritus.
(2) Unless the Board at any time by resolution denies the Director
Emeritus such status, the Director shall serve as a Director Emeritus for five
years from the date of election or until the Director Emeritus' seventy-fifth
(75th) birthday, whichever shall occur first.
Section 2. Duties of Director Emeritus
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(1) It is the purpose of the Company in creating Directors Emeritus to
preserve for the Board the source of wisdom and experience that the Director
Emeritus represent.
(2) A Director Emeritus shall attend all regular meetings of the Board
and shall offer such advice and expertise as may from time to time be
appropriate.
(3) A Director Emeritus shall attend such committee meetings as
the Board may from time to time direct.
(4) A Director Emeritus may from time to time be assigned special
projects or reports to perform for the Board.
Section 3. Compensation of the Director Emeritus
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(1) A Director Emeritus shall be paid at the rate of fifty percent
(50%) of the current annual fee paid to Directors of the Company and fifty
percent (50%) of the current fee paid to Directors of the Company for attendance
at meetings.
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(2) A Director Emeritus shall be paid the same fee for committee
meetings actually attended, as a Director.
Section 4. Exception to Eligibility Requirement for Director Emeritus
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The Board of Directors may by resolution adopted by affirmative vote of
seventy-five (75%) percent of the Directors of the Company waive for a specific
period any of the provisions of Section 1 of this Article, as to a specific
individual Director.
Section 5. Vote Required to Change Director Emeritus Compensation or Amend
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this Article IV
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The compensation of any Director Emeritus of the Company provided for
by Section 3 of this Article IV shall not be stopped, reduced or otherwise
diminished in any way or from any cause, prior to, during or following any
"business combination" as defined in Article Twelfth of the Articles of
Incorporation of the Company, and Article III of these By-Laws, nor shall this
Article IV of the By-Laws be amended, notwithstanding the provisions of Article
VII of these Company By-Laws, prior to, during or following any "business
combination" as defined in Article Twelfth of the Company's Articles of
Incorporation, unless the stopping, reducing or otherwise diminishing of
Directors compensation or the amending of this Section is approved by 80% of the
"continuing Directors" of the Company as "continuing Director" is defined by
Articles Twelfth of the Articles of Incorporation of the Company.
Section 6. Alternate Compensation
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In the event, that contrary to the provisions of Section 5 of this
Article IV of these By-Laws there is in fact, prior to, during or following a
"business combination" as defined in Article III Section 6, a diminution of a
Director Emeritus' compensation from any cause, then there shall be immediately
due and payable, from the Company, to each Director Emeritus affected, in one
lump sum, together with any court costs and attorney's necessary to collect it,
an amount equal to three times the total compensation received by that Director
Emeritus during the twelve months immediately preceding the effective date of
the act or cause diminishing the Director Emeritus' compensation.
ARTICLE V
STANDING COMMITTEES OF THE BOARD
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The Board of Directors hereby creates the following permanent or
standing committees of the Board, each of which shall consist of not less than
three members chosen by the Board. The Committees shall have the duties and
responsibilities assigned herein, or assigned from time to time by resolution of
the Board.
Section 1. Audit Committee
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The Audit Committee shall consist of three members of the Board
appointed by the Board and shall be responsible for:
(1). Recommending to the Board of Directors the selection of the
independent accountants to be employed by the Company.
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(2). Reviewing the scope of the independent audit and the results
thereof, including overseeing management's compliance with
auditor's deficiency letters.
(3). Reviewing the Company's internal accounting controls with the
independent auditors and acting as an overseer of the
financial reporting process (including quarterly reports).
(4). Reviewing the management discussion and analysis section of the
annual report with the management of the Company.
(5). Reviewing annually management's program for monitoring compliance
with the Code of Corporate Conduct.
(6). Reviewing the representation letter submitted by management to the
independent auditor.
(7). Reporting to the Board of Directors the activities of the Audit
Committee.
Section 2. Employee Benefits Committee
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The Committee shall consist of four members of the Board, appointed
by the Board and shall be responsible for studying on an ongoing basis, the
compensation of the Officers and Directors of the Company and for reporting at
least annually to the Board on the status of the compensation of the Officers
and Directors and for:
(1) Recommending to the Board from time to time, but at least
annually, any changes in the compensation of the Officers and Directors it feels
are appropriate, to review and recommend to the Board of Directors the adoption
of any compensation plans in which Directors and Officers are eligible to
participate.
(2) Preparing such reports as are required by law for the annual
proxy statement.
(3) Studying, advising and recommending to the Board what types of
stock option or stock appreciation plans may be available to the Company and
advising on the desirability, effect and operation of any plan the Company
presently has or might have or might consider in the future.
(4) Assuming such duties or responsibilities for administration and
interpretation of any option plan of the Company as may from time to time be
delegated to the Committee by a plan or by the Board of Directors, including
selection the employees who are to participate in such plans and determining the
terms of their participation.
(5) Performing the duties delegated to it under the Company
employee's profit sharing plan and trust agreement and in addition to its duties
under the Company Employee's Profit Sharing Plan and Trust Agreement, shall be
responsible for advising the Board of Directors with regard to any and all other
ERISA qualified pension, profit sharing or bonus plans established by the
Company.
Section 3. Nominating Committee
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(1) The Committee shall be composed of three members of the Board
of Directors. Two of whom are not officers or employees of the Company. The
Chairman may name such additional ex-officio members as he deems appropriate.
(2) The Committee shall be responsible on an ongoing basis for the
search for, investigation of, recommendation to the Board for nomination of, the
recruitment of, any new candidates for election to the Board of Directors as
they are needed from time to time.
Section 4. Executive Committee
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(1) This Committee is created pursuant to Article Four, Section
4.09 of the Code of Regulations of the Company. The Executive Committee shall be
composed of four members of the Board of Directors, not less than two of whom
shall be non employee outside Directors.
(2) The Committee shall have authority to act for the Board of
Directors to the extent provided in this By-Law or by future resolution of the
Board of Directors. The Committee will advise management on personnel, legal,
board agenda organization and strategic planning matters.
(3) The Committee shall meet at least quarterly at the call of the
Chairman and when practicable at a time close to the week falling between Board
of Directors' meetings. The Committee shall meet at any other times necessary
for the transaction of its business.
(4) The Committee shall, at any time when it is not practical or in
the best interest of the Company to wait until a Board meeting, have authority
to approve contracts, obligations and transactions of the Company up to
$350,000.
(5) The Committee shall have responsibility for directing or
contracting for the disposition of charitable grants from the amounts of money
set aside annually by the Board of Directors for charitable contributions.
(6) The minutes of the Committee meetings shall be kept and
submitted to the entire Board for approval by the Board, at the next meeting of
the Board, approval of the minutes by the Board of Directors shall constitute
approval of and ratification of all actions of the Committee set forth in those
minutes by the Board of Directors.
Section 5. Finance Committee
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(1) The Committee shall be composed of four members of the Board of
Directors which shall include not less than two outside non employee Directors,
the Chief Executive Officer and when a member of the Board, the Chief Operating
Officer. The Committee shall be responsible for formulating and presenting
recommendations to the Board of Directors on investment policy, financial
matters, capital structure and allocation, dividends, financing arrangements,
financial planning, budgeting and shall undertake such other duties and
responsibilities relating to corporate financing as the Board of Directors may
from time to time delegate to the Committee.
(2) The Committee shall keep the Board advised on its evaluation of
the financial operations of the Company resulting from its review of the short
and long term financial plans and results of the Company and its consultations
with the Chief Financial Officer, the Treasurer, and the Controller.
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ARTICLE VI
SHAREHOLDER MEETINGS
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Section 1. Transaction of Business
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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
Section 2 of this Article VI and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in the Section 2 of this Article VI. The
nomination by a stockholder of any person for election as a director, other than
the persons nominated by the Board of Directors or any duly authorized committee
thereof, shall be considered business other than business specified in clauses
(a) and (b) above and shall be permitted only upon compliance with the
requirements of this Section 2 of this Article VI.
Section 2. Notice of Business
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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 on a date that is not within (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 be set forth as to each matter such stockholder proposes to bring before
the annual meeting (i) a brief description of the business described 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, (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, and in the case of the nomination of a person as a director,
a brief
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description of the background and credentials of such person including (A) the
name, age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) the class and number of
shares of the Corporation which are beneficially owned by such person, and (D)
any other information relating to such person that is required to be disclosed
in solicitations of proxies for election of Directors, or as otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including without limitation such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected).
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 2 of this Article VI, PROVIDED, HOWEVER,
that, once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this Section 2 of this Article VI
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 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.
ARTICLE VII
AMENDMENT OF CODE OF BY-LAWS
----------------------------
At any meeting of the Board, notice of which shall have been given
or waived as required by this Code of By-Laws, this Code may be amended or
repealed in whole or in part, or new By-Laws added thereto and adopted, by the
affirmative vote of the majority of all of the Directors of the Company, except
as provided in Article III Section 6 and Article IV Section 5 of these By-Laws.
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