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EXHIBIT 3.2
AMENDED AND RESTATED REGULATIONS OF
ANTHONY & SYLVAN POOLS CORPORATION
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING.
The annual meeting of shareholders of the Corporation shall be held at
such time and on such business day as the directors may determine each year. The
annual meeting shall be held at the principal office of the Corporation or at
such other place within or without the State of Ohio as the directors may
determine.
SECTION 2. SPECIAL MEETINGS.
Special meetings of the shareholders may be called at any time by (i)
the Chairman of the Board, (ii) the President, (iii) the directors, by action at
a meeting or a majority of the directors acting without a meeting, or (iv) the
holders of 50% or more of the outstanding shares entitled to vote thereat. Such
meetings may be held within or without the State of Ohio at such time and place
as may be specified in the notice thereof.
SECTION 3. NOTICE OF MEETINGS.
Written notice of every annual or special meeting of the shareholders
stating the time, place and purposes thereof shall be given to each shareholder
entitled to notice as provided by law, not less than seven nor more than ninety
days before the date of the meeting. Such notice may be given by or at the
direction of the Chairman of the Board, the President or the Secretary by
personal delivery or by mail addressed to the shareholder at his last address as
it appears on the records of the Corporation. Any shareholder may waive in
writing notice of any meeting, either before or after the holding of such
meeting, and, by attending any meeting without protesting the lack of proper
notice, shall be deemed to have waived notice thereof.
SECTION 4. PERSONS BECOMING ENTITLED BY OPERATION OF LAW OR TRANSFER.
Every person who, by operation of law, transfer or any other means
whatsoever, shall become entitled to any shares, shall be bound by every notice
in respect of such share or shares which previously to the entering of his name
and address on the records of the Corporation shall have been duly given to the
person from whom he derives his title to such shares.
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SECTION 5. QUORUM AND ADJOURNMENTS.
Except as may be otherwise required by law or by the Articles of
Incorporation or these Regulations, the holders of a majority of the
then-outstanding shares entitled to vote in an election of directors, taken
together as a single class ("Voting Shares"), present in person or by proxy,
shall constitute a quorum; provided that any meeting duly called, whether a
quorum is present or otherwise may, by order of the chair of such meeting or by
vote of the holders of the majority of the Voting Shares represented thereat,
adjourn from time to time, in which case no further notice of any such adjourned
meeting need be given.
SECTION 6. BUSINESS TO BE CONDUCTED AT MEETINGS.
No business shall be conducted at a meeting of shareholders except in
accordance with the procedures set forth in this Section 6. To be properly
brought before a meeting of shareholders, business must be specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the directors, otherwise properly brought before the meeting by or at the
direction of the directors or otherwise properly brought before the meeting by a
shareholder. For business to be properly brought before a meeting of
shareholders by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice 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 meeting; provided, however, that in the
event that less than seventy-five (75) days' notice or prior public disclosure
of the date of the meeting is given or made to the shareholders, notice by the
shareholder to be timely must be so received not later than the close of
business on the fifteenth (15th) day following the earlier of the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. A shareholder's notice to the Secretary shall set forth as to each matter
the shareholder proposes to bring before the meeting: (i) a brief description of
the proposal desired to be brought before the meeting and a statement of the
reasons for making such proposal at the meeting; (iii) the name and record
address of, and the class and number of shares of the Corporation beneficially
owned by (A) the shareholder offering such proposal, (B) any other beneficial
owner of the shares registered in such shareholder's name and (C) any other
shareholder (or beneficial owner of shares) known by such shareholder to be
supporting such proposal on the date of such shareholder's notice; and (iv) any
financial or other material interest of the shareholder (or any such beneficial
owner) in such proposal.
If the Board of Directors, or a designated committee thereof,
determines that any shareholder proposal was not timely made in accordance with
the provisions of this Section 6, or that any proposal conflicts with or
violates a provision of the Articles of Incorporation or Regulations of the
Corporation, then such proposal shall not be presented for action at the meeting
in question. If the Board of Directors, or a designated committee thereof,
determines that the information provided in the shareholder's notice does not
satisfy the informational requirements of this Section 6 in any material
respect, the Secretary of the Corporation shall promptly notify such shareholder
of the deficiency in the notice. Such shareholder shall have the opportunity to
cure such deficiency by providing additional information to the Secretary within
the period of time, not to exceed five (5) days from the date such deficiency
notice is given such shareholder, determined by the Board of Directors or such
committee. If the deficiency is not cured within
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such period, or if the Board of Directors or such committee determines that the
additional information provided by the shareholder, together with the
information previously provided, does not satisfy the requirements of this
Section 6 in any material respect, then such proposal shall not be presented for
action at the meeting in question.
If neither the Board of Directors nor such committee makes a
determination as to the compliance of any shareholder proposal with the
provisions of this Section 6, as set forth above, the chair of the meeting of
shareholders shall determine and declare to the meeting, if the facts warrant,
that such proposal was not made in accordance with the provisions of this
Section 6, and if so determined, the defective proposal shall be disregarded.
DIRECTORS
SECTION 7. NUMBER.
The number of directors of the Corporation shall be not fewer than
three (3) nor more than nine (9), as may be determined from time to time upon
the recommendation of a majority of the Continuing Directors (as hereinafter
defined) by the holders of a majority of the outstanding Voting Shares
represented at any annual meeting or special meeting called for the purpose of
electing directors, and when so fixed such number shall continue to be the
authorized number of directors until changed by the shareholders by vote as
aforesaid or by the directors as hereinafter provided. In addition to the
authority of the shareholders to fix or change the number of directors as
described above, the directors, by majority vote of the Continuing Directors,
may change the number of directors and may fill any vacancy that is created by
an increase in the number of directors. In exercising the foregoing authority,
the directors may not change the number of directors by more than two (2) from
the number authorized by the shareholders at the last annual or special meeting
of the shareholders at which the number of directors was fixed and in no event
may the directors fix the number of directors at fewer than three (3) nor more
than nine (9). As used herein, the term "Continuing Director" shall mean, as of
any date of determination, any member of the Board of Directors of the
Corporation who (i) was a member of such Board of Directors on the date of the
initial adoption of these Regulations by the shareholder(s) of the Corporation
or (ii) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such nomination or election.
SECTION 8. NOMINATIONS.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors. Nominations of persons
for election as directors of the Corporation may be made at a meeting of
shareholders by or at the direction of the directors by any nominating committee
or person appointed by the directors or by any shareholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 8. Such nominations, other than
those made by or at the direction of the directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall 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 meeting; provided, however, that in the
event that less than seventy-five (75) days' notice or prior public disclosure
of the date of the meeting is given or made to
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shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth (15th) day following the
earlier of the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such shareholder's notice shall set forth as to
each nomination: (i) the name, age and business address or residence address of
any proposed nominee, the nominee's principal employment or occupation and the
other information which is required to be disclosed in solicitations for proxies
for election of directors pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended; (ii) the name and record address of, and the
class and number of shares of the Corporation beneficially owned by (A) the
shareholder offering such nomination, (B) any other beneficial owner of the
shares registered in such shareholder's name and (C) any other shareholder (or
beneficial owner of shares) known by such shareholder to be supporting such
nomination on the date of such shareholder's notice; and (iii) any financial or
other material interest of the shareholder (or any such beneficial owner) in
such nomination. Such notice shall be accompanied by the written consent of each
proposed nominee to serve as a director of the Corporation, 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 8.
If the Board of Directors, or a designated committee thereof,
determines that any shareholder nomination was not timely made in accordance
with the provisions of this Section 8, or that any nomination conflicts with or
violates a provision of the Articles of Incorporation or Regulations of the
Corporation, then such nomination shall not be presented for action at the
meeting in question. If the Board of Directors, or a designated committee
thereof, determines that the information provided in the shareholder's notice
does not satisfy the informational requirements of this Section 8 in any
material respect, the Secretary of the Corporation shall promptly notify such
shareholder of the deficiency in the notice. Such shareholder shall have the
opportunity to cure such deficiency by providing additional information to the
Secretary within the period of time, not to exceed five (5) days from the date
such deficiency notice is given such shareholder, determined by the Board of
Directors or such committee. If the deficiency is not cured within such period,
or if the Board of Directors or such committee determines that the additional
information provided by the shareholder, together with the information
previously provided, does not satisfy the requirements of this Section 8 in any
material respect, then such nomination shall not be presented for action at the
meeting in question.
If neither the Board of Directors nor such committee makes a
determination as to the compliance of any shareholder nomination with the
provisions of this Section 8, as set forth above, the chair of the meeting of
shareholders shall determine and declare to the meeting, if the facts warrant,
that such nomination was not properly brought before the meeting in accordance
with the provisions of this Section 8, and if so determined, the defective
nomination shall be disregarded.
SECTION 9. CLASSIFICATION, ELECTION AND TERM OF OFFICE OF DIRECTORS.
Subject to the remaining provisions of this Section 9, the directors
shall be divided into two (2) classes, designated Class I and Class II. The
classes shall be as nearly equal in number as possible, and the directors as
initially classified shall hold office for terms as follows: the Class I
directors shall hold office until the 2001 annual meeting of shareholders and
until their respective successors are elected and qualified; and the Class II
directors shall hold office until the 2002 annual meeting of shareholders and
until their respective successors are elected and qualified, in all cases,
subject to prior death, resignation or
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removal from office. Thereafter, at each annual meeting of shareholders in which
the terms of any directors are due to expire, the successors of the directors
whose terms are expiring at such annual meeting shall be elected to hold office
until the third succeeding annual meeting of shareholders and until their
respective successors are elected and qualified, subject to prior death,
resignation or removal from office. If the number of directors is changed, any
increase or decrease shall be apportioned between the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of such class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. Election of directors
shall be by ballot whenever requested by any person entitled to vote at the
meeting; but unless so requested such election may be conducted in any way
approved at such meeting.
SECTION 10. REMOVAL.
Except as otherwise provided by law, all the directors or all the
directors of a particular class, or any individual director, may be removed from
office without assigning any cause, by the affirmative vote of at least eighty
percent (80%) of the Voting Shares at an annual meeting or at any special
meeting duly called.
SECTION 11. VACANCIES.
Whenever any vacancy shall occur among the directors, the remaining
directors shall constitute the directors of the Corporation until such vacancy
is filled or until the number of directors is changed pursuant to Section 7
hereof. Except in cases where a director is removed as provided by law and these
Regulations and his successor is elected by the shareholders, the remaining
directors may, by a vote of a majority of their number, fill any vacancy for the
unexpired term. A majority of the directors then in office may also fill any
vacancy that results from an increase in the number of directors.
SECTION 12. QUORUM AND ADJOURNMENTS.
A majority of the directors in office at the time shall constitute a
quorum, provided that any meeting duly called, whether a quorum is present or
otherwise, may, by vote of a majority of the directors present, adjourn from
time to time and place to place within or without the State of Ohio, in which
case no further notice of the adjourned meeting need be given. At any meeting at
which a quorum is present, all questions and business shall be determined by the
affirmative vote of not less than a majority of the directors present, except as
is otherwise provided in the Articles of Incorporation or these Regulations or
is otherwise authorized by Section 1701.60(A)(1) of the Ohio Revised Code.
SECTION 13. ORGANIZATION MEETING.
Immediately after each annual meeting of the shareholders at which
directors are elected, or each special meeting held in lieu thereof, the
directors, including those newly elected, if a quorum of all such directors is
present, shall hold an organization meeting at the same place or at such other
time and place as may be fixed by the shareholders at such meeting, for the
purpose of electing officers and transacting any other business. Notice of such
meeting need not be given. If for any reason such organization meeting is not
held at such time, a special meeting for such purpose shall be held as soon
thereafter as practicable.
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SECTION 14. REGULAR MEETINGS.
Regular meetings of the directors may be held at such times and places
within or without the State of Ohio as may be provided for in by-laws or
resolutions adopted by the directors and upon such notice, if any, as shall be
so provided for.
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SECTION 15. SPECIAL MEETINGS.
Special meetings of the directors may be held at any time within or
without the State of Ohio upon call by the Chairman of the Board or a majority
of the directors. Written notice of each such meeting shall be given to each
director by personal delivery or by mail, cablegram or telegram not less than
two days prior to such meeting or such shorter notice as the directors shall
deem necessary and warranted under the circumstances. Any directors may waive in
writing notice of any meeting, and, by attending any meeting without protesting
the lack of proper notice, shall be deemed to have waived notice thereof. Unless
otherwise limited in the notice thereof, any business may be transacted at any
organization, regular or special meeting.
SECTION 16. COMPENSATION.
The directors are authorized to fix reasonable compensation, which may
include pension, disability, and death benefits for services to the Corporation
by directors or a reasonable fee for attendance at any meeting of the directors,
the Executive Committee, or other committees elected under Section 20 hereof, or
any combination of general and attendance fee, and may be paid in cash, shares
or rights to shares of the Corporation or other property. In addition to such
compensation provided for directors, they shall be reimbursed for any expenses
incurred by them in traveling to and from such meetings.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
SECTION 17. MEMBERSHIP AND ORGANIZATION.
(a) The directors, at any time, may elect from their number an
Executive Committee which shall consist of three or more directors of the
Corporation, each of whom shall hold office during the pleasure of the directors
and may be removed at any time, with or without cause, by vote thereof.
(b) Vacancies occurring in the Committee may be filled by the
directors.
(c) In the event the directors have not designated a Chairman, the
Committee shall appoint one of its own number as chair who shall preside at all
meetings and may also appoint a secretary (who need not be a member of the
Committee) who shall keep its records and who shall hold office during the
pleasure of the Committee.
SECTION 18. MEETINGS.
(a) Regular meetings of the Committee may be held without notice of the
time, place or purposes thereof and shall be held at such times and places
within or without the State of Ohio as the Committee may from time to time
determine.
(b) Special meetings may be held upon notice of the time, place and
purposes thereof at any place within or without the State of Ohio and until
otherwise ordered by the Committee shall be held at any time and place at the
call of the chair or any two members of the Committee.
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(c) At any regular or special meeting the Committee may exercise any or
all of its powers, and any business which shall come before any regular or
special meeting may be transacted thereat, provided a majority of the Committee
is present, but in every case the affirmative vote of a majority of all of the
members of the Committee present shall be necessary to take any action.
(d) Any authorized action by the Committee may be taken without a
meeting by a writing signed by all the members of the Committee.
SECTION 19. POWERS.
Except as its powers, duties and functions may be limited or prescribed
by the directors, during the intervals between the meetings of the directors,
the Committee shall possess and may exercise all the powers of the directors
provided that the Committee shall not be empowered to declare dividends, elect
or remove officers, fill vacancies among the directors or Executive Committee,
adopt an agreement of merger or consolidation, recommend to the shareholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, nor recommend to the shareholders a dissolution of the
Corporation or revocation of a dissolution. All actions of the Committee shall
be reported to the directors at their meeting next succeeding such action and
shall be subject to revision or alteration by the directors, provided that no
rights of any third person shall be affected thereby.
SECTION 20. OTHER COMMITTEES.
The directors may elect other committees from among the directors in
addition to or in lieu of an Executive Committee and give to them any of the
powers which under the foregoing provisions could be vested in an Executive
Committee. Sections 17 and 18 shall be applicable to such other committees.
OFFICERS
SECTION 21. OFFICES DESIGNATED.
The offices of the Corporation shall be a Chairman of the Board, a
President, a Secretary, a Treasurer and such other officers as the Board of
Directors may from time to time deem appropriate. The Chairman of the Board
shall be, and the other officers may, but need not be, chosen from among the
directors. Any two or more of such offices other than that of President or Chief
Executive Officer and Vice President, Secretary and Assistant Secretary and
Chief Financial Officer and other financial officer, may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in
more than one capacity if such instrument is required by law, the Articles of
Incorporation, these Regulations or any by-laws to be executed, acknowledged, or
verified by two or more officers.
SECTION 22. ELECTION OF OFFICERS; TENURE OF OFFICE.
All officers shall be elected by the Board of Directors. The Board of
Directors may remove any officer at any time with or without cause by a majority
vote of the directors in office at the time. A vacancy, however created, in any
office may be filled by election by the directors.
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SECTION 23. CHAIRMAN OF THE BOARD.
The Chairman of the Board shall preside at meetings of the shareholders
and directors and shall have such other powers and duties as may be prescribed
by the directors. Except where the signature of the President or Chief Executive
Officer is required by law, the Chairman of the Board shall possess the same
power as the President or Chief Executive Officer to execute all authorized
deeds, mortgages, bonds, contracts and other instruments and obligations in the
name of the Corporation.
SECTION 24. PRESIDENT.
The President or Chief Executive Officer may be the chief operating
officer of the Corporation and shall have general supervision over its property,
business and affairs, subject to the directions of the Chairman of the Board
and/or the directors. Unless otherwise determined by the directors, the
President or Chief Executive Officer shall have authority to execute all
authorized deeds, mortgages, bonds, contracts and other instruments and
obligations in the name of the Corporation, and, in the absence of the Chairman
of the Board, shall preside at meetings of the shareholders and the directors
and shall have such other powers and duties as may be prescribed by the
directors.
SECTION 25. VICE PRESIDENTS.
The Vice Presidents shall have such powers and duties as may be
prescribed by the directors or as may be delegated by the Chairman of the Board
or the President.
SECTION 26. SECRETARY.
The Secretary shall attend and keep the minutes of all meetings of the
shareholders and of the directors, shall keep such books as may be required by
the directors, shall have charge of the seal of the Corporation and shall give
all notices of meetings of shareholders and directors, and shall have such other
powers and duties as may be prescribed by the directors.
SECTION 27. TREASURER OR CHIEF FINANCIAL OFFICER.
The Treasurer or Financial Officer shall receive and have in charge all
money, bills, notes, bonds, stocks in other corporations and similar property
belonging to the Corporation and shall do with the same as shall be ordered by
the directors, shall keep accurate financial accounts and hold the same open for
inspection and examination of the directors, and shall have such other powers
and duties as may be prescribed by the directors.
SECTION 28. OTHER OFFICERS.
The Assistant Secretaries, Assistant Treasurers, if any, and the other
officers, if any, shall have such powers and duties as the directors may
prescribe.
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SECTION 29. DELEGATION OF DUTIES.
The directors are authorized to delegate the duties of any officers to
any other officer and generally to control the action of the officers and to
require the performance of duties in addition to those mentioned herein.
SECTION 30. COMPENSATION.
The directors are authorized to determine or to provide the method of
determining the compensation of all officers.
SECTION 31. BOND.
Any officer or employee, if required by the directors, shall give bond
in such sum and with such security as the directors may require for the faithful
performance of his or her duties.
SECTION 32. SIGNING CHECKS AND OTHER INSTRUMENTS.
The directors are authorized to determine or provide the method of
determining how checks, notes, bills of exchange and similar instruments shall
be signed, countersigned or endorsed.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 33. INDEMNIFICATION.
The Corporation shall indemnify any director or officer or any former
director or officer of the Corporation or any person who is or has served at the
request of the Corporation as a director, officer or trustee of another
corporation, joint venture, trust or other enterprise (and his heirs, executors
and administrators) against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement, actually and reasonably incurred by him or
her by reason of the fact that he or she is or was such director, officer or
trustee in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative to the full
extent and according to the procedures and requirements set forth in the Ohio
General Corporation Law as the same may be in effect from time to time. The
indemnification provided for herein shall not be deemed to restrict the right of
the Corporation to indemnify employees, agents and others as permitted by such
Law.
The indemnification authorized by the foregoing paragraph shall not be
exclusive of, and shall be in addition to any other rights granted to those
seeking indemnification under the Articles of Incorporation or these Regulations
or any Indemnification Agreement (as hereinafter defined), vote of shareholders
or disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office.
Without derogation to the power of the Corporation from time to time to
enter into, or assume the obligations of any affiliate of the Corporation under,
any agreement granting rights of indemnification to
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any person or entity ("Indemnification Agreement"), the Corporation is hereby
expressly authorized to assume the obligations of Essef Corporation under any
Indemnification Agreement existing on the date of the adoption of these
Regulations by the Board of Directors and Shareholders of the Corporation, and
any obligations so assumed shall be binding upon the Corporation with the same
force and effect as if the Corporation had been an original party to such
Indemnification Agreement. The Corporation is further authorized to enter into
Indemnification Agreements in substantially the same form as the Indemnification
Agreements of Essef Corporation existing on the effective date of these
Regulations.
The Corporation may purchase and maintain insurance or furnish similar
protection, including but not limited to trust funds, letters of credit or
self-insurance, on behalf of or for any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer, employee or agent of
another corporation, joint venture, trust or other enterprise (and his or her
heirs, executors and administrators), against any liability asserted against and
incurred by him or her in such capacity, or arising out of his or her status as
such, regardless of whether the Corporation would have provided indemnity
against such liability under the foregoing provisions of this Section 33.
Insurance may be purchased from or maintained with a person in which the
Corporation has a financial interest.
CORPORATE SEAL
SECTION 34. CORPORATE SEAL.
The corporate seal of the Corporation shall be circular in form and
shall contain the name of the Corporation.
PROVISIONS IN ARTICLES OF INCORPORATION
SECTION 35. PROVISIONS IN ARTICLES OF INCORPORATION.
These Regulations are at all times subject to the provisions of the
Articles of Incorporation of the Corporation as the same may be in effect from
time to time, including without limitation, the provisions of Article FOURTH
thereof authorizing the Board of Directors to fix by resolution or resolutions
providing for the issuance of Serial Shares, the voting powers and designation,
preferences and relative rights, qualifications, limitations or restrictions of
such Serial Shares to the fullest extent permitted by the laws of the State of
Ohio.
LOST CERTIFICATES
SECTION 36. LOST CERTIFICATES.
The directors may direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon such terms and conditions as they may deem advisable
upon satisfactory proof of loss or destruction thereof. When authorizing such
issue of a new certificate, the directors may, as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such owner's legal representative, to advertise the same in such
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manner as the directors shall require and/or to give the Corporation a suitable
bond or indemnity against loss by reason of the issuance of a new certificate.
RECORD DATES
SECTION 37. RECORD DATES.
For any lawful purpose, including, without limitation, the
determination of the shareholders who are entitled to: (i) receive notice of or
to vote at a meeting of shareholders; (ii) receive payment of any dividend or
distribution; (iii) receive or exercise rights of purchase of or subscription
for, or exchange or conversion of, shares or other securities, subject to
contract rights with respect thereto; or (iv) participate in the execution of
written consents, waivers, or releases, the directors may fix a record date
which shall not be a date earlier than the date on which the record date is
fixed and, in the cases provided for in clauses (i), (ii) and (iii) above, shall
not be more than sixty (60) nor fewer than ten (10) days, unless the Articles of
Incorporation specify a shorter or a longer period for such purpose, preceding
the date of the meeting of the shareholders, or the date fixed for the payment
of any dividend or distribution, or the date fixed for the receipt or the
exercise of rights, as the case may be.
AMENDMENTS
SECTION 38. AMENDMENTS.
(a) These Regulations may be altered, changed or amended in any respect
or superseded by new Regulations in whole or in part, by the affirmative vote of
the holders of two-thirds of the outstanding Voting Shares, unless such
alteration, change, amendment or adoption has been recommended by at least
two-thirds of the Board of Directors of the Corporation then in office, in which
event such alteration, change, amendment or adoption may be approved by the
affirmative vote of the holders of a majority of the outstanding Voting Shares.
No alteration, change or amendment of these Regulations or adoption of new
Regulations in whole or part may be adopted by the shareholders other than
pursuant to a vote of shareholders at an annual or special meeting or pursuant
to a writing or writings signed by the holders of all of the Voting Shares
entitled to notice of a meeting of the shareholders held for such purpose.
(b) Notwithstanding the provisions of Section 38(a) hereof and
notwithstanding the fact that a lesser percentage may be specified by law or in
any agreement with any national securities exchange or any other provision of
these Regulations, the amendment, alteration, change or repeal of, or adoption
of any provisions inconsistent with, Sections 7, 9 or 10 of these Regulations
shall require the affirmative vote of at least eighty percent (80%) of the
outstanding Voting Shares, unless such amendment, alteration, change, repeal or
adoption has been recommended by at least two-thirds of the Continuing Directors
(as defined in Section 7 of these Regulations), in which event the provisions of
Section 38(a) hereof shall apply.
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