FREEPORT-MCMORAN SULPHUR INC.
BY-LAWS
AS AMENDED
SECTION 1
OFFICES
1.1 REGISTERED OFFICE. The registered office of Freeport-McMoRan
Sulphur Inc. (the "Corporation") shall be in the City of Wilmington, County
of New Castle, State of Delaware.
1.2 OTHER OFFICES. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Corporation's
Board of Directors may from time to time determine or the business of the
Corporation may require.
SECTION 2
MEETINGS OF STOCKHOLDERS
2.1 ANNUAL MEETINGS. Annual meetings of stockholders shall be held for
the election of directors at such date, time and place either within or
without the State of Delaware as shall be designated by the Board of
Directors and stated in the notice of the meeting.
2.2 SPECIAL MEETINGS. Subject to any rights of the holders of shares
of Preferred Stock to call special meetings of stockholders, special meetings
of the stockholders for any purpose or purposes may be called only by the
Chairman or either Co-Chairman of the Board of Directors, the Corporation's
President or upon a vote of the majority of the Board of Directors, at such
date, time and place either within or without the State of Delaware as shall
be stated in the notice of the meeting.
2.3 NOTICE OF STOCKHOLDER NOMINATIONS AND STOCKHOLDER BUSINESS. (a)
At any meeting of stockholders, only such business shall be conducted as is
properly before the meeting. No business shall be deemed to have been
properly brought before a special meeting of stockholders unless (i) the
matter is submitted by the person or persons calling the special meeting and
(ii) the matter is contained in the notice of the meeting. Except as
otherwise provided in the Certificate of Incorporation or required by
applicable law, nominations for the election of directors at a meeting at
which directors are to be elected or other matters to be properly brought
before any annual meeting of stockholders must be (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the
Board of Directors, including matters covered by Rule 14a-8 of the Securities
and Exchange Commission, (ii) otherwise properly brought before the meeting
by or at the direction of the Board of Directors, or (iii) otherwise properly
brought before the meeting by any person who (A) has been for at least one
year the Beneficial Owner of at least 1% of any class or series of
outstanding Voting Stock entitled to be voted on the proposed business and
(B) complies with the procedures set forth below.
(b) A notice of the intent of a stockholder to make a nomination or
to bring any other matter before the meeting shall be made in writing and
received by the Corporation's Secretary not more than 270 days and not less
than 60 days in advance of the first anniversary of the preceding year's
annual meeting of stockholders or, in the case of an annual meeting of
stockholders scheduled to be held either 30 days earlier or later than such
anniversary date, such notice shall be received by the Corporation's
Secretary within 15 days of the earlier of the date on which notice of such
meeting is first mailed to stockholders or public disclosure of the meeting
date is made.
(c) Every such notice by a stockholder shall set forth:
(i) the name, age, business address and residential address
of (A) the stockholder who intends to make a nomination or bring up any
other matter, and (B) any person acting in concert with such
stockholder;
(ii) the number of shares of Voting Stock of which the
stockholder is the Beneficial Owner and the dates on which such person
acquired his or her Voting Stock;
(iii) a representation that the stockholder intends to appear
in person at the meeting to make the nomination or bring up the matter
specified in the notice;
(iv) with respect to notice of an intent to make a
nomination, a description of all agreements, arrangements or
understandings among the stockholder, any person acting in concert with
the stockholder, each proposed nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(v) with respect to notice of an intent to make a
nomination, (A) the name, age, business address and residential address
of each person proposed for nomination, (B) the principal occupation or
employment of such person, (C) the class and number of shares of
capital stock of the Corporation of which such person is the beneficial
owner, and (D) any other information relating to such person that would
be required to be disclosed in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had such nominee
been nominated by the Board of Directors; and
(vi) with respect to notice of an intent to bring up any
other matter, a complete and accurate description of the matter not to
exceed 500 words, the reasons for conducting such business at the
meeting, and any material interest of the stockholder in the matter.
(d) The Corporation's Secretary may require any stockholder
submitting a notice of an intent to make a nomination or bring up other
business to furnish such documentary information as may be reasonably
required by the Corporation to determine that such stockholder has been for
at least one year the Beneficial Owner of at least 1% of any class or series
of outstanding Voting Stock entitled to be voted on the proposed business.
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(e) Notice of an intent to make a nomination shall be accompanied
by the written consent of each nominee to serve as a director of the
Corporation if so elected and an affidavit of each such nominee certifying
that he or she meets the qualifications necessary to serve as a director of
the Corporation. The Corporation may require any proposed nominee to furnish
such other information as may be reasonably required by the Corporation to
determine the eligibility and qualifications of such person to serve as a
director.
(f) With respect to any proposal by a stockholder to bring before
a meeting any matter other than the nomination of directors, the following
shall govern:
(i) If the Corporation's Secretary has received sufficient
notice of a proposal that may properly be brought before the meeting, a
proposal sufficient notice of which is subsequently received by the
Secretary and that is substantively duplicative of the first proposal
shall not be deemed properly brought before the meeting. If in the
judgment of the Board of Directors a proposal deals with substantially
the same subject matter as a prior proposal submitted to stockholders
at a meeting held within the preceding five years, it shall not be
properly brought before any meeting held within three years after the
latest such previous submission if (A) the proposal was submitted at
only one meeting during such preceding period and it received
affirmative votes representing less than 3% of the total number of
votes cast in regard thereto, (B) the proposal was submitted at only
two meetings during such preceding period and it received at the time
of its second submission affirmative votes representing less than 6% of
the total number of votes cast in regard thereto, or (C) the proposal
was submitted at three or more meetings during such preceding period
and it received at the time of its latest submission affirmative votes
representing less than 10% of the total number of votes cast in regard
thereto.
(ii) Notwithstanding compliance with all of the procedures
set forth above in this Section, no proposal shall be deemed to be
properly brought before a meeting of stockholders if, in the judgment
of the Board of Directors, it is not a proper subject for action by
stockholders under Delaware Law.
(g) At the meeting of stockholders, the chairman shall declare out
of order and disregard any nomination or other matter that is not presented
in accordance with the foregoing procedures or that is otherwise contrary to
the foregoing terms and conditions.
(h) Nothing in this Section shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation's proxy
statement or to solicit their own proxies pursuant to the proxy rules of the
Securities and Exchange Commission.
2.4 NOTICE OF MEETING. Whenever stockholders are required or permitted
to take any action at a meeting, a written notice of the meeting shall be
given which shall state the place, date and time of the meeting, and the
purpose or purposes for which the meeting is called. Unless otherwise
provided by law, the written notice of any meeting shall be given to each
stockholder entitled to vote at such meeting not less than 10 nor more than
60 days before the date of the meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States
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mail, postage prepaid, directed to the stockholder at such stockholder's
address as it appears on the records of the Corporation.
2.5 STOCKHOLDER LIST. The Secretary shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to
the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
2.6 QUORUM. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, with respect to each matter considered and
voted upon at any stockholders' meeting, the holders of a majority of the
outstanding shares of each class of Capital Stock, or series thereof,
entitled to vote thereon, present in person or represented by proxy, shall
constitute a quorum, provided that two or more classes or series shall be
considered a single class if the holders thereof are entitled to vote
together as a single class with respect to such matter. If, however, a
quorum shall not be present or represented at any meeting of the stockholders
(or with respect to any matter to be considered and voted upon thereat), the
holders of any class of Capital Stock or series thereof entitled to vote
thereat (or with respect to any such matter), present in person or
represented by proxy, shall have the power to adjourn the meeting (or the
vote upon such matter, without prejudice to the right of the stockholders to
vote upon any matter as to which a quorum does exist) from time to time,
without notice other than announcement at the meeting, until a quorum shall
be presented or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted that might
have been transacted at the meeting as originally notified. If the
adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting (or with respect to such matter).
2.7 VOTE REQUIRED. When a quorum is present with respect to any matter
considered at any meeting of stockholders, the vote of the holders of a
majority of the Voting Stock shall decide such matter, unless the matter is
one upon which by express provision of law, the Certificate of Incorporation
or these By-laws, a different vote is required, in which case such express
provision shall govern and control the decision of such matter.
2.8 VOTING RIGHTS OF STOCKHOLDERS. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
Voting Stock held of record by such holder. If the Certificate of
Incorporation provides for more or less than one vote for any share of Voting
Stock on any matter, every reference in these By-laws to a majority or other
proportion of Voting Stock shall refer to such majority or other proportion
of the total votes accorded such shares of stock.
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2.9 PROXIES. (a) Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period.
(b) Execution of a proxy may be accomplished by a stockholder or
his or her authorized officer, director, employee or agent signing such
writing or causing his or her signature to be affixed to such writing by any
reasonable means including, without limitation, by facsimile signature. A
stockholder may authorize another person or persons to act for him as proxy
by transmitting or authorizing the transmission of a telegram, cablegram, or
other means of electronic transmission to the person who will be the holder
of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that
the telegram, cablegram or other electronic transmission was authorized by
the stockholder. If it is determined that such telegrams, cablegrams or
other electronic transmissions are valid, the inspectors shall specify the
information upon which they relied.
(c) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission may be substituted or used in
lieu of the original writing or transmission for any and all purposes for
which the original writing or transmission could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
(d) A duly executed proxy shall be irrevocable if it states that
it is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke
any proxy that is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or another
duly executed proxy bearing a later date with the Secretary.
2.10 NO UNANIMOUS WRITTEN CONSENT. Unless otherwise provided in the
Certificate of Incorporation, any action required or permitted to be taken by
the stockholders must be effected at a duly called annual or special meeting
of stockholders, and may not be effected by any written consent of such
holders.
2.11 TREASURY STOCK. Shares of Capital Stock held in the treasury of
the Corporation shall not be deemed to be outstanding shares for the purpose
of voting or determining the presence of a quorum or the total number of
shares entitled to vote on any matter.
2.12 PRESIDING OFFICER. All meetings of stockholders shall be presided
over by the Chairman or either Co-Chairman of the Board of Directors, or in
his absence, by a chairman designated by the Board of Directors. The
Secretary shall act as secretary of the meeting, or in the absence of the
Secretary by an Assistant Secretary, or in their absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
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2.13 INSPECTORS. Prior to a meeting of stockholders, the Board shall
appoint one or more inspectors to act at the meeting and make a written
report thereof. Each inspector shall take and sign an oath faithfully to
execute the duties of with strict impartiality and according to the best of
his or her ability. The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of the proxies and ballots, (iii)
count all votes and ballots, (iv) determine and retain for a reasonable
period a record of the disposition of any challenges made to any
determination by the inspectors, (v) certify their determination of the
number of shares represented at the meeting, and their count of all votes and
ballots, and (vi) perform such other functions as the presiding officer of
the meeting shall determine. The inspectors may appoint or retain other
persons or entities to assist them in the performance of their duties.
2.14 ADJOURNMENTS. Any annual or special meeting of stockholders may be
adjourned by the presiding officer from time to time to reconvene at the same
or some other place, and notice need not be given of any such adjourned
meeting if the time and place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the Corporation may
transact any business which might have been transacted at the original
meeting. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
SECTION 3
DIRECTORS
3.1 POWERS. The business and affairs of the Corporation shall be
managed under the direction of a Board of Directors (the "Board"), except as
otherwise provided by law or by the Certificate of Incorporation.
3.2 NUMBER. Subject to the restriction that the number of directors
shall not be less than the number required by Delaware Law, and subject
further to the creation or lapse of directorships upon the occurrence of
events specified in the Certificate of Incorporation, the number of directors
shall be fixed, from time to time, by a resolution adopted by a majority of
the Continuing Directors. Until otherwise fixed by the directors, the number
of directors constituting the entire Board shall be one. The Secretary shall
have the power to certify at any time as to the number of directors
authorized and as to the class to which each director has been elected or
assigned.
3.3 CLASSIFICATION OF BOARD. The members of the Board, other than
those who may be elected by holders of any one or more series of Preferred
Stock voting separately, shall be classified, with respect to the time during
which they hold office, into three classes, designated Class I, II and III,
as nearly equal in number as possible. The initial directors in Class I
shall be elected for a term expiring at the annual meeting of stockholders to
be held in 1998, the initial directors in Class II shall be elected for a
term expiring at the annual meeting of stockholders to be held in 1999 and
the initial directors in Class III shall be elected for a term expiring at
the annual meeting of stockholders to be held in 2000.
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3.4 RESIGNATION. Any director may resign at any time upon written
notice to the Board, the President or the Secretary. Such resignation shall
take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it
effective.
3.5 NOMINATIONS. Only persons who are nominated in accordance with the
procedures set forth in Section 2.3 shall be eligible for election as
directors. Notwithstanding any provision of these By-laws to the contrary,
the provisions of Section 2.3 shall not apply to the election of any
directors which the holders of any class or series of Preferred Stock, voting
separately as a class, may be entitled to elect.
3.6 ELECTION OF DIRECTORS. Unless otherwise provided in the
Certificate of Incorporation, at each meeting of the stockholders for the
election of directors at which a quorum is present, directors shall be
elected by a plurality of the votes cast with respect to shares of Voting
Stock present in person or represented by proxy at the meeting.
3.7 COMPENSATION. Unless otherwise restricted by the Certificate of
Incorporation or of these By-laws, the Board shall have the authority to fix
the compensation of directors. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board. The directors may be paid a
stated salary as director or a fixed sum for attendance at each meeting of
the Board or committee. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 4
MEETINGS OF THE BOARD
4.1 MEETINGS. The Board may hold meetings, both regular and special,
either within or without the State of Delaware.
4.2 REGULAR MEETINGS. Regular meetings of the Board may be held
without notice at such time and at such place as shall from time to time be
determined by the Board.
4.3 SPECIAL MEETINGS. Special meetings of the Board may be called by
the Chairman or either Co-Chairman of the Board or the President on at least
24 hours' notice to each director, either personally or by mail, telephone or
telegram. Special meetings shall be called by the Chairman or either
Co-Chairman of the Board or the President in like manner and on like notice
on the written request of any director. Any notice to call a special meeting
pursuant to this section may be executed by the Secretary of the Company
acting on behalf of the person calling the meeting.
4.4 QUORUM. At all meetings of the Board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board, except as may be otherwise specifically
provided by law or by the Certificate of Incorporation. If a quorum shall
not be present at any meeting of the Board, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
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4.5 ACTION AT MEETING. If a quorum is present when any meeting of the
Board is convened, the directors may continue to do business, taking action
by vote of a majority of a quorum as fixed in Section 4.4, until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a
quorum or the refusal of any director present to vote.
4.6 ACTION BY CONSENT. Unless otherwise restricted by the Certificate
of Incorporation or these By-laws, any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
4.7 MEETINGS BY TELEPHONE. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, members of the Board or any
committee designated by the Board may participate in a meeting of the Board
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
4.8 PRESIDING OFFICER. The Chairman or either Co-Chairman of the Board
shall preside at all meetings of the Board or, in his absence, a chairman
appointed by the Board. The Secretary or in the absence of the Secretary, an
Assistant Secretary, shall act as secretary of each meeting, but in the
absence of the Secretary and an Assistant Secretary, the chairman of the
meeting may appoint any person to act as secretary of the meeting.
SECTION 5
COMMITTEES OF THE BOARD
5.1 DESIGNATION OF COMMITTEES. The Board may, by resolution passed by
a majority of the Continuing Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board. The Board
may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member.
5.2 AUTHORITY OF COMMITTEES. Any committee designated by the Board
shall have those powers and authority of the Board in the management of the
business and affairs of the Corporation provided in the resolution of the
Board designating such committee, provided that no such committee shall have
the power or authority to (a) approve, adopt or recommend to the stockholders
any action or matter expressly required by Delaware Law to be submitted to
stockholders for approval, or (b) adopt, amend or repeal any Bylaw of the
Corporation.
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5.3 MINUTES. Each committee shall keep regular minutes of its meetings
and report the same to the Board when required.
SECTION 6
NOTICES
6.1 FORM OF NOTICE. Unless provided otherwise by law, the Certificate
of Incorporation or these By-laws, any notice that is required to be given to
stockholders shall be given in writing, by mail, addressed to such
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Notice
to directors may be given in like manner or may be given by telephone, telex
or facsimile transmission or by sending the same by national commercial
courier service for next-day delivery.
6.2 WAIVER. Whenever any notice is required to be given under law, the
Certificate of Incorporation or these By-laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
Attendance of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express
purpose of objecting at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened.
SECTION 7
OFFICERS
7.1 GENERAL. The officers of the Corporation shall be chosen by the
Board at its first meeting after each annual meeting of stockholders and
shall be a President, a Secretary and a Treasurer. The Board may also choose
a Chairman or Co-Chairmen of the Board and a Vice Chairman of the Board from
among the directors and may choose a General Counsel, a Controller and one or
more Executive Vice Presidents, Senior Vice Presidents, Vice Presidents,
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person, unless the Certificate
of Incorporation or the By-laws otherwise provide.
7.2 OTHER OFFICERS. The Board may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
7.3 COMPENSATION. The salaries of all officers and agents of the
Corporation shall be fixed by the Board.
7.4 TERM. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Subject to such obligations of the
Corporation as may exist under any contract of employment, any officer
elected or appointed by the Board may be removed at any time by the President
or by the affirmative vote of a majority of the Continuing Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the
Board.
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7.5 CHAIRMAN OR CO-CHAIRMEN OF THE BOARD. The Chairman or Co-Chairmen
of the Board shall have the general powers, duties and responsibilities of
supervision and management inherent in such office as well as such additional
powers and duties as the Board may from time to time prescribe. He or they
shall control and direct the Corporation's business and supervise, direct and
control the management of the business of the Corporation. He or either one
of them shall preside at all meetings of the stockholders and the Board.
7.6 VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board shall
have such powers and duties as may be delegated to him by the Board of
Directors or the Co-Chairmen of the Board.
7.7 PRESIDENT. The President shall be the Chief Executive Officer of
the Corporation. The President shall, except as the Board may otherwise
direct, supervise the daily operations of the business of the Corporation and
have general charge of and authority over the Corporation's property and
supervision over the Corporation's officers, employees and agents. At the
request of the Chairman or either Co-Chairman of the Board, or in his absence
or during his disability, the President shall perform the duties and exercise
the functions of the Chairman of the Board. Except as the Board may
otherwise authorize, the President shall execute bonds, mortgages and any
other contracts of any nature on behalf of the Corporation.
7.8 EXECUTIVE VICE PRESIDENTS, SENIOR VICE PRESIDENTS, ASSISTANT VICE
PRESIDENTS, CONTROLLER AND GENERAL COUNSEL. The Executive Vice Presidents,
Senior Vice Presidents, Assistant Vice Presidents, Controller and General
Counsel shall have such powers and duties as may be delegated to them by the
Board of Directors or the Co-Chairmen of the Board.
7.9 VICE PRESIDENTS. In the absence of the President or in the event
of his inability or refusal to act, the Vice President (or in the event there
be more than one Vice President, the Vice Presidents in the order designated
by the Board, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the President. The Vice Presidents shall perform such other duties and
have such other powers as the Board, the Chairman or either Co-Chairman of
the Board, or the President may from time to time prescribe.
7.10 SECRETARY. The Secretary shall attend all meetings of the Board
and all meetings of the stockholders and record all the proceedings of the
meetings of the Corporation and of the Board 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 special meetings of the Board, and shall perform such other
duties as may be prescribed by the Board or President, under whose
supervision he shall be. He shall have custody of the corporate seal of the
Corporation and he, or an Assistant Secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such Assistant Secretary.
The Board may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature.
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7.11 ASSISTANT SECRETARY. The Assistant Secretary, or if there be more
than one, the Assistant Secretaries in the order determined by the Board (or
if there be no such determination, then in the order of their election)
shall, in the absence of the Secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board
may from time to time prescribe.
7.12 TREASURER. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation 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. 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
the Board, at its regular meetings, or when the Board so requires, an account
of all his transactions as treasurer and of the financial condition of the
Corporation. If required by the Board, he shall give the Corporation a bond
(which shall be renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board for the faithful performance
of the 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.
7.13 ASSISTANT TREASURER. The Assistant Treasurer, or if there shall be
more than one, the Assistant Treasurers in the order determined by the Board
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board
may from time to time prescribe.
SECTION 8
STOCK
8.1 CERTIFICATED OR UNCERTIFICATED. The shares of the Corporation
shall be uncertificated or shall be represented by certificates signed in the
name of the Corporation by the Chairman or either Co-Chairman of the Board or
the President or a Vice President and by the Secretary or an Assistant
Secretary of the Corporation. Upon the face or back of each stock
certificate issued to represent any partly paid shares, or upon the books and
records of the Corporation in the case of uncertificated partly paid shares,
shall be set forth the total amount of the consideration to be paid therefor
and the amount paid thereon shall be stated.
8.2 SUMMARY OF RIGHTS. The powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series of each class of stock, and of each series of any class, and
the qualifications, limitations or restrictions of such preferences and
rights shall be set forth in full or summarized on the face or back of the
certificate that the Corporation shall issue to represent such class or
series of stock; provided that, except as otherwise provided in Section 202
of Delaware Law, or in any act amending, supplementing or substituted for
such section, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the
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Corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and rights.
8.3 NOTICE TO HOLDERS OF UNCERTIFICATED STOCK. Within a reasonable
time after the issuance or transfer of uncertificated stock, the Corporation
shall send, or cause to be sent, to the registered owner thereof a written
notice containing the information required to be set forth or stated on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) of Delaware Law
or a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and rights.
8.4 FACSIMILE SIGNATURES. Any of or all the signatures on a
certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
8.5 LOST CERTIFICATES. The Board may direct a new certificate or
certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates
or uncertificated shares, the Board may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or give the
Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
8.6 TRANSFER OF STOCK. Upon surrender to the Corporation or the
transfer agent of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall
be the duty of the Corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books. Upon receipt of proper transfer instructions from the registered
owner of uncertificated shares such uncertificated shares shall be cancelled
and issuance of new equivalent uncertificated shares or certificated shares
shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the Corporation.
8.7 REGISTERED STOCKHOLDERS. Except as otherwise provided by law, the
Corporation, and its directors, officers and agents, may recognize and treat
a person registered on its records as the owner of shares, as the owner in
fact thereof for all purposes, and as the person exclusively entitled to have
and to exercise all rights and privileges incident to the ownership of such
shares, and rights
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under this Section 8.7 shall not be affected by any actual or constructive
notice that the Corporation, or any of its directors, officers or agents, may
have to the contrary.
SECTION 9
INDEMNIFICATION
9.1 INDEMNITY. (a) Except with respect to an action or Claim (other
than as authorized in Section 9.2) commenced by an Indemnitee against the
Corporation or by an Indemnitee as a derivative action by or in the right of
the Corporation that has not been authorized by the Board, the Corporation
shall indemnify, defend and hold harmless any Indemnitee against Expenses
reasonably incurred or suffered in connection with any Claim against
Indemnitee, whether the basis of such Claim is alleged action or inaction in
an official capacity as Indemnitee or in any other capacity while serving as
an Indemnitee (including appearances as a witness or in connection with
giving testimony or evidence), if:
(i) the Indemnitee is successful in his defense of the Claim on
the merits or otherwise, or
(ii) the Indemnitee has been found by the Determining Body to have
met the Standard of Conduct (as determined in accordance with the
procedures set forth in this Section 9.1), provided that no
indemnification shall be made in respect of any Claim by or in the
right of the Corporation as to which Indemnitee shall have been
adjudicated in a final judgment to be liable to the Corporation,
unless, and only to the extent that the court in which such Claim was
brought shall determine upon application that, despite such
adjudication of liability but in view of all the circumstances of the
case, Indemnitee is fairly and reasonably entitled to indemnity for
such Expenses which the court shall deem proper.
(b) For purposes of this Section 9, the "Standard of Conduct" is
met when conduct by an Indemnitee with respect to which a Claim is asserted
was conduct performed in good faith which he reasonably believed to be in, or
not opposed to, the best interest of the Corporation, and, in the case of a
Claim which is a criminal action or proceeding, conduct that the Indemnitee
had no reasonable cause to believe was unlawful. The termination of any
Claim by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not meet the Standard of Conduct.
(c) Promptly upon becoming aware of the existence of any Claim as
to which Indemnitee may be indemnified hereunder, Indemnitee shall notify the
Chief Executive Officer of the Corporation, but the failure to promptly
notify the Chief Executive Officer shall not relieve the Corporation from any
obligation under this Section 9. Upon receipt of such request, the Chief
Executive Officer shall promptly advise the members of the Board of the
request and that the establishment of a Determining Body with respect to
Indemnitee's request for indemnification as to the Claim will be presented at
the next regularly scheduled meeting of the Board. If a meeting of the Board
is not regularly scheduled within 120 calendar days of the date the Chief
Executive Officer receives notice of the Claim, the Chief Executive Officer
shall cause a special meeting of the Board of Directors to be called within
such period in accordance with the provisions of the By-laws. After
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the Determining Body has been established, the Determining Body shall inform
the Indemnitee of the constitution of the Determining Body and Indemnitee
shall provide the Determining Body with all facts relevant to the Claim known
to such Indemnitee, and deliver to the Determining Body all documents
relevant to the Claim in Indemnitee's possession. Before the 60th day after
its receipt from the Indemnitee of such information (the "Determination
Date"), together with such additional information as the Determining Body may
reasonably request of Indemnitee prior to such date (the receipt of which
shall not begin a new 60-day period) the Determining Body shall determine
whether or not Indemnitee has met the Standard of Conduct and shall advise
Indemnitee of its determination. If Indemnitee shall have supplied the
Determining Body with all relevant information, including all additional
information reasonably requested by the Determining Body, any failure of the
Determining Body to make a determination by or on the Determination Date as
to whether the Standard of Conduct was met shall be deemed to be a
determination that the Standard of Conduct was met by Indemnitee.
(d) If at any time during the 60-day period ending on the
Determination Date, Indemnitee becomes aware of any relevant facts not
theretofore provided by him to the Determining Body, Indemnitee shall inform
the Determining Body of such facts, unless the Determining Body has obtained
such facts from another source. The provision of such facts to the
Determining Body shall not begin a new 60 day period.
(e) The Determining Body shall have no power to revoke a
determination that Indemnitee met the Standard of Conduct unless Indemnitee
(i) submits to the Determining Body at any time during the 60 days prior to
the Determination Date fraudulent information, (ii) fails to comply with the
provisions of Section 9.1(d), or (iii) intentionally fails to submit
information or documents relevant to the Claim reasonably requested by the
Determining Body prior to the Determination Date.
(f) In the case of any Claim not involving any threatened or
pending criminal proceeding:
(i) if prior to the Determination Date the Determining Body has
affirmatively made a determination that Indemnitee met the Standard of
Conduct (not including a determination deemed to have been made by
inaction), the Corporation may, in its sole discretion, after notice to
Indemnitee, assume all responsibility for the defense of the Claim with
counsel satisfactory to Indemnitee (who shall not, except with the
written consent of Indemnitee, be counsel to the Corporation), and, in
any event, the Corporation and the Indemnitee each shall keep the other
informed as to the progress of the defense of the Claim, including
prompt disclosure of any proposals for settlement; provided that if the
Corporation is a party to the Claim and Indemnitee reasonably
determines that there is any conflict between the positions of the
Corporation and Indemnitee, with respect to the Claim or otherwise,
then Indemnitee shall be entitled to conduct his defense with counsel
of his choice at the Corporation's expense in accordance with the terms
and conditions of this Section 9; and provided further that Indemnitee
shall in any event be entitled at his expense to employ counsel chosen
by him to participate in the defense of the Claim; and
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(ii) The Corporation shall not be obligated to indemnify Indemnitee
for any amount paid in a settlement that the Corporation has not
approved. The Corporation shall fairly consider any proposals by
Indemnitee for settlement of the Claim. If the Corporation proposes a
settlement of the Claim and such settlement is acceptable to the person
asserting the Claim, or the Corporation believes a settlement proposed
by the person asserting the Claim should be accepted, it shall inform
Indemnitee of the terms of such proposed settlement and shall fix a
reasonable date by which Indemnitee shall respond. If Indemnitee
agrees to such terms, he shall execute such documents as shall be
necessary to make final the settlement. If Indemnitee does not agree
with such terms, Indemnitee may proceed with the defense of the Claim
in any manner he chooses, provided that if Indemnitee is not successful
on the merits or otherwise, the Corporation's obligation to indemnify
such Indemnitee as to any Expenses incurred following his disagreement
shall be limited to the lesser of (A) the total Expenses incurred by
Indemnitee following his decision not to agree to such proposed
settlement or (B) the amount that the Corporation would have paid
pursuant to the terms of the proposed settlement.
(g) In the case of any Claim involving a proposed, threatened or
pending criminal proceeding, Indemnitee shall be entitled to conduct the
defense of the Claim with counsel of his choice and to make all decisions
with respect thereto; provided, that the Corporation shall not be obliged to
indemnify Indemnitee for any amount paid in settlement of such a Claim unless
the Corporation has approved such settlement.
(h) After notifying the Corporation of the existence of a Claim in
accordance with Section 9.1(c), Indemnitee may from time to time request the
Corporation to pay the Expenses (other than judgments, fines, penalties or
amounts paid in settlement) that he incurs in pursuing a defense of the Claim
prior to the time that the Determining Body determines whether the Standard
of Conduct has been met. The Disbursing Officer shall pay to Indemnitee the
amount requested (regardless of Indemnitee's ability to repay such amount)
upon receipt of an undertaking by or on behalf of Indemnitee to repay such
amount along with any other amounts advanced or paid after the Determination
Date in accordance with the provisions of this Section 9.1, if (i) the
Determining Body determines prior to the Determination Date that Indemnitee
did not meet the Standard of Conduct or (ii) Indemnitee is prohibited from
being indemnified by the Corporation by virtue of the provisions of Delaware
Law.
(i) After it has been determined that the Standard of Conduct has
been met, for so long as and to the extent that the Corporation is required
to indemnify Indemnitee under this Section 9, the provisions of Section
9.1(h) shall continue to apply with respect to Expenses incurred after such
time except that (i) no undertaking shall be required of Indemnitee and (ii)
the Disbursing Officer shall pay to Indemnitee the amount of any fines,
penalties or judgments against him that have become final and for which he is
entitled to indemnification hereunder, and any amount of indemnification
ordered to be paid to him by a court.
(j) Any determination by the Corporation with respect to settlement
of a Claim shall be made by the Determining Body.
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(k) All determinations and judgments made by the Determining Body
hereunder shall be made in good faith.
(l) The Corporation and Indemnitee shall keep confidential to the
extent permitted by law and their fiduciary obligations all facts and
determinations provided pursuant to or arising out of the operation of this
Section 9 and the Corporation and Indemnitee shall instruct its or his agents
and employees to do likewise.
9.2 ENFORCEMENT. (a) The rights provided by this Section 9 shall be
enforceable by Indemnitee in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights
under this Section 9 Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
Expenses actually and reasonably incurred by him in connection with such
proceeding but only if he prevails therein. If it shall be determined that
Indemnitee is entitled to receive part but not all of the relief sought, then
the Indemnitee shall be entitled to be reimbursed for all Expenses incurred
by him in connection with such judicial adjudication if the amount to which
he is determined to be entitled exceeds 50% of the amount of his claim.
Otherwise, the Expenses incurred by Indemnitee in connection with such
judicial adjudication shall be appropriately prorated.
(c) In any judicial proceeding described in this Section 9.2, the
Corporation shall bear the burden of proving that Indemnitee is not entitled
to the relief sought, even if the Determining Body prior to the Determination
Date determined that Indemnitee failed to meet the Standard of Conduct. If
prior to the Determination Date the Determining Body failed to make a
determination that Indemnitee did not meet the Standard of Conduct, it shall
not be a defense to such suit that Indemnitee did not meet the Standard of
Conduct.
9.3 REFORMATION. If any provision of this Section 9 is determined by
a court having jurisdiction over the matter to violate or conflict with
applicable law, the court shall be empowered to modify or reform such
provision so that, as modified or reformed, such provision provides the
maximum indemnification permitted by Delaware Law, and such provision, as so
modified or reformed, and the balance of this Section 9 shall be applied in
accordance with their terms. Without limiting the generality of the
foregoing, if any portion of this Section 9 shall be invalidated on any
ground, the Corporation shall nevertheless indemnify an Indemnitee to the
full extent permitted by any applicable portion of this Section 9 that shall
not have been invalidated and to the full extent permitted by law with
respect to that portion that has been invalidated.
9.4 SUCCESSORS AND ASSIGNS. This Section 9 shall be binding upon the
Corporation, its successors and assigns, and shall inure to the benefit of
the Indemnitee's heirs, administrators, executors, personal representatives
and assigns and to the benefit of the Corporation, its successors and assigns.
9.5 AMENDMENTS. No amendment to or modification of this Section 9 or
any portion hereof shall limit any Indemnitee's entitlement to
indemnification in accordance with the provisions
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hereof with respect to any acts or omissions of Indemnitee which occur or
accrue prior to such amendment or modification.
9.6 CONTRIBUTION. If the indemnity provided for in this Section 9 is
for any reason unavailable or insufficient to hold harmless an Indemnitee
with respect to any Expenses, the Corporation shall make a contribution to
the Indemnitee for such liabilities to which the Indemnitee may be subject in
such proportion as is appropriate to reflect the intent of this Section 9.
9.7 RELIANCE. Each person who is serving as an Indemnitee shall be
deemed to be doing so in reliance upon the indemnification provided for in
this Section 9. The rights of an Indemnitee hereunder shall be contract
rights and shall vest in the Indemnitee upon the occurrence of the event, or
the first event in a chain of events, giving rise to such Claim; provided
that the adoption of the By-laws shall not affect any right or obligation of
the Corporation or of any Indemnitee which existed prior to such adoption.
9.8 NONEXCLUSIVITY. (a) The rights conferred herein on any person
shall (i) be severable, (ii) not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, certificate of
incorporation, contract or other agreement, authorization of stockholders or
disinterested directors or otherwise, and (iii) continue as to an Indemnitee
who has ceased to serve on behalf of the Corporation in respect of all claims
arising out of action (or inaction) occurring prior to such time.
(b) It is the intent of the Corporation to indemnify and hold
harmless Indemnitee to the fullest extent permitted by Delaware Law, as such
law exists or may be amended after the date the By-laws are adopted, but, in
the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than Delaware
Law permitted prior to the amendment, notwithstanding any provision in
Section 9 to the contrary.
9.9 INSURANCE. The Corporation may procure or maintain insurance or
other similar arrangement on behalf of any Indemnitee or any person who is or
was an employee or agent of the Corporation, or is serving at the request of
the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted
against or incurred by him in his capacity as such, or arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of Delaware Law.
Without limiting the power of the Corporation to procure or maintain any
other kind of insurance or similar arrangement, the Corporation may create a
trust fund or other form of self-insurance arrangement for the benefit of any
Indemnitee or such other person to the fullest extent authorized by Delaware
Law.
SECTION 10
GENERAL PROVISIONS
10.1 FIXING RECORD DATE. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
17
exercise any rights in respect to any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board may fix in advance a
record date which shall not be more than 60 nor less than ten days before the
date of such meeting, nor more than 60 days prior to any other action.
Except as otherwise provided in the By-laws, a determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting, provided, however, that the Board
may fix a new record date for the adjourned meeting.
10.2 DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of Incorporation. Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation, or for such other purpose as
the directors shall think conducive to the interest of the Corporation, and
the directors may modify or abolish any such reserve in the manner in which
it was created.
10.3 CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person
or persons as the Board may from time to time designate.
10.4 FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board.
10.5 SEAL. The corporate seal shall have inscribed thereon the name of
the Corporation and shall be in such form as may be approved from time to
time by the incorporator, or, after the appointment of directors, the Board
of Directors. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
SECTION 11
DEFINITIONS
The following terms, for all purposes of the By-laws, shall have the
following meaning:
"Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations promulgated under the Securities Exchange Act of 1934, as
amended (the term "registrant" in such Rule 12b-2 meaning in this case
the Corporation); provided, however, that in no event shall the
Corporation, any of its Subsidiaries, any employee benefit plan or any
of the other persons or entities exempted from the definition of
Interested Stockholder as provided in the Certificate of Incorporation
be deemed to be an Affiliate or Associate of any Interested Stockholder.
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A person shall be deemed to be the "Beneficial Owner" of any
shares of Capital Stock (regardless whether owned of record):
(1) Which that person or any of its Affiliates or
Associates, directly or indirectly, owns beneficially;
(2) Which such person or any of its Affiliates or
Associates has (A) the right to acquire (whether 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 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 capital
stock of the Corporation or any Subsidiaries.
"Capital Stock" means any Common Stock, Preferred Stock or other
shares of capital stock of the Corporation.
"Certificate of Incorporation" shall mean the certificate of
incorporation of the Corporation, as it may be amended from time to
time.
"Claim" shall mean any threatened, pending or completed claim,
action, suit or proceeding, including appeals, whether civil, criminal,
administrative or investigative and whether made judicially or
extra-judicially, including any action by or in the right of the
Corporation, or any separate issue or matter therein, as the context
requires.
"Common Stock" shall mean the common stock of the Corporation, as
provided for in the Certificate of Incorporation.
"Continuing Director" shall have the meaning ascribed to it in the
Certificate of Incorporation.
"Delaware Law" shall mean the General Corporation Law of the State
of Delaware.
"Determining Body" shall mean (i) those members of the Board of
Directors who do not have a direct or indirect interest the Claim for
which indemnification is being sought ("Impartial Directors"), if there
are at least two Impartial Directors, (ii) a committee of at least two
Impartial Directors appointed by the Board or a duly authorized
committee thereof (regardless of whether the directors voting on such
appointment are Impartial Directors) and composed of Impartial
Directors or (iii) if there are fewer than two Impartial Directors or
if the Board or a duly authorized committee thereof so directs
(regardless whether the members
19
thereof are Impartial Directors), independent legal counsel, which may
be the regular outside counsel of the Corporation, as determined by the
Impartial Directors or, if no such directors exist, the full Board.
"Disbursing Officer" shall mean the Chief Financial Officer of the
Corporation or, if the Chief Financial Officer has a direct or indirect
interest in the Claim for which indemnification is being sought, any
officer who does not have such an interest and who is designated by the
Chief Executive Officer to be the Disbursing Officer with respect to
indemnification requests related to the Claim, which designation shall
be made promptly after receipt of the initial request for
indemnification with respect to such Claim.
"Expenses" shall mean any expenses or costs, including, without
limitation, attorney's fees, judgments, punitive or exemplary damages,
fines, excise taxes or amounts paid in settlement.
"Indemnitee" shall mean 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, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, trust
or other enterprise (including, without limitation, employee benefit
plans of the Corporation).
"Preferred Stock" shall mean the preferred stock of the
Corporation, as provided for in the Certificate of Incorporation.
"Subsidiary" means any corporation, partnership or other entity of
which the Corporation, directly or indirectly, owns voting stock or
similar interests having a majority of the votes entitled to be cast.
"Voting Stock" means the outstanding shares of Capital Stock
entitled to vote generally in an election of directors.
SECTION 12
AMENDMENTS
The Corporation's By-laws may be altered, amended, or repealed or new
By-laws may be adopted by:
(a) the stockholders, but only upon the affirmative vote of
holders of not less than 80% of the Voting Stock, voting together as a
single class; or
(b) the Board, but only upon the affirmative vote of both (i) a
majority of the directors then in office and (ii) a majority of the
Continuing Directors, voting as a separate group.
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