Exhibit 3.2
FACTSET RESEARCH CORPORATION
BY-LAWS
ARTICLE I
Offices
Section 1. Registered Office. The location of the Corporation's registered
office within the State of Delaware, the name of the registered agent of the
Corporation at such office and the post office address to which the Secretary of
State of the State of Delaware shall mail a copy of process in any action or
proceeding against the Corporation that may be served upon him, shall be in each
case as stated in the Certificate of Incorporation.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meeting. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on such date as
may be fixed from time to time by resolution of the Board of Directors, at such
place within or without the State of Delaware as shall be designated by the
Board of Directors.
Section 2. Special Meeting. Special meetings of the stockholders, for any
purpose or purposes, may be called at any time only by the Chairman of the Board
or the President of the Corporation or the majority of the Board of Directors.
Such meetings shall be held at such time and at such place within or without the
State of Delaware as shall be specified in the notice of the meeting.
Section 3. Notice of Meetings. Notice of the place, date and time of the holding
of each annual and special meeting of the stockholders and the purpose or
purposes thereof shall be given personally or by mail in a postage prepaid
envelope to each stockholder entitled to vote at such meeting, not less than ten
nor more than sixty days before the date of such meeting, and, if mailed, it
shall be directed to such stockholder at his address as it appears on the
records of the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. Any
such notice for any meeting other than the annual meeting of stockholders shall
indicate that it is being issued at the direction of the Chairman of the Board,
President or a majority of the Board of Directors, which notice shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy. Unless the Board shall fix a new record
date for an adjourned meeting, notice of such adjourned meeting need not be
given if the time and place to which the meeting shall be adjourned were
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 thirty
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.
Section 4. Quorum. Except as otherwise required by law or the Certificate of
Incorporation, at all meetings of the stockholders, the presence in person or by
proxy of the holders of a majority of the shares of stock of the Corporation
issued and outstanding and entitled to vote shall constitute a quorum for the
transaction of any business. In the absence of a quorum, the holders of a
majority of the shares of stock present in person or by proxy and entitled to
vote, or if no stockholder entitled to vote is present, then any officer of the
Corporation, may adjourn the meeting from time to time. At any such adjourned
meeting at which a quorum may be present, any business may be transacted which
might have been transacted at the meeting as originally called.
<PAGE>
Section 5. Organization. At each meeting of the stockholders, the Chairman of
the Board, if any, or in his absence or inability to act, the President, or in
his absence or inability to act, any person chosen by a majority of those
stockholders present or represented, shall act as chairman of the meeting. The
Secretary, or, in his absence or inability to act, an Assistant Secretary or any
other officer appointed by the chairman of the meeting, shall act as secretary
of the meeting and keep the minutes thereof.
Section 6. Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
Section 7. Voting. Except as otherwise provided by statute or the Certificate of
Incorporation, each holder of record of shares of stock of the Corporation
having voting power shall be entitled at each meeting of the stock- holders to
one vote for every share of such stock standing in his name on the record of
stockholders of the Corporation (a) on the date fixed by the Board of Directors
as the record date for the determination of the stockholders who shall be
entitled to notice of and to vote at such meeting; or (b) if such record date
shall not have been so fixed, then at the close of business on the day next
preceding the day on which notice thereof shall be given; or (c) if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held. Each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him by a proxy
signed by such stockholder or his attorney-in-fact. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time designated in
the order of business for so delivering such proxies. No proxy shall be valid
after the expiration of three years from the date thereof, unless the proxy
provides for a longer period. Every proxy shall be revocable at the pleasure of
the stockholder executing it, except in those cases where an irrevocable proxy
is permitted by law. Except as otherwise required by law, the Certificate of
Incorporation or these By-laws, any corporate action to be taken by vote of the
stockholders shall be authorized by a majority of the total votes cast at a
meeting of stockholders by the holders of shares present in person or
represented by proxy and entitled to vote on such action. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote
on any question need not be by written ballot. On a vote by written ballot, each
ballot shall be signed by the stockholder voting, or by his proxy, if there be
such proxy, and shall state the number of shares voted.
Section 8. List of Stockholders. The officer who has charge of the stock ledger
of the Corporation shall prepare and make or cause to be prepared and made, 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.
Section 9. Inspectors. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If inspectors shall not be so appointed or if any of them
shall fail to appear or act, the chairman of the meeting may, and on the request
of any stockholder entitled to vote thereat shall, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding, the number of
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the chairman of the meeting or any stockholder
entitled to vote thereat, the inspectors shall make a report in writing of any
challenge, request or matter determined by them and shall execute a certificate
of any fact found by them. No director or candidate for the office of director
shall act as inspector of an election of directors need not be stockholders.
RESOLVED, that Section 10 of Article II of the BY-laws of the Corporation be
amended to read as follows:
Section 10. Action Without a Meeting by Written Consent. No action required to
be taken or which may be taken at any annual or special meeting of stockholders
of the Corporation may be taken without a meeting, except on written consent,
setting forth the action so taken, signed by the holders of record of at least
80% of the outstanding shares entitled to vote thereon.
<PAGE>
ARTICLE III
Board of Directors
Section 1. General Powers. The property, business and affairs of the Corporation
shall be managed by the Board of Directors. The Board of Directors may exercise
all such authority and powers of the Corporation and do all such lawful acts and
things as are not by statute or the Certificate of Incorporation or these
By-Laws directed or required to be exercised or done by the stockholders.
Section 2. Number, Classification, Term of Office, Qualifications and Election.
The Board of Directors shall initially consist of two directors. Thereafter, the
number of directors of the Corporation shall be determined by resolution
approved by at least two-thirds of the then authorized number of directors, but
after the annual meeting of stockholders in 1987, shall not be more than fifteen
nor less than three. The Board of Directors shall be divided into three classes
as nearly equal in number as possible, with the term of office of one class
expiring each year. The terms of office of the directors elected at the annual
meeting of stockholders in 1987 and initially classified shall be as follows:
directors of the first class shall hold office for a term expiring at the next
succeeding annual meeting; directors of the second class shall hold office for a
term expiring at the second succeeding annual meeting; and directors of the
third class shall hold office for a term expiring at the third succeeding annual
meeting. At each annual meeting of stockholders after the annual meeting in
1987, directors elected to succeed the class of directors whose terms expire at
such annual meeting shall be elected to hold office for a term expiring at the
third succeeding annual meeting after their election. When the number of
directors is changed, any newly created directorships or any decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number as possible. Each director shall hold office for the
specified term and until his successor shall be duly elected and qualified, or
until his death, or until he shall have resigned or he shall have been removed,
as hereinafter provided in these By-Laws, or as otherwise provided by statute or
by the Certificate of Incorporation. All the directors shall be of full age.
Directors need not be stockholders. Except as otherwise required by statute or
the Certificate of Incorporation or these By-Laws, directors to be elected at
each annual meeting of stockholders shall be elected by a plurality of the votes
cast at the meeting by the holders of shares present in person or represented by
proxy and entitled to vote for the election of directors.
Section 3. Annual Meeting. The Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business, as
soon as practicable after each annual meeting of the stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Section 6 of this Article III,
or in a waiver of notice thereof.
Section 4. Regular Meetings. Regular meetings of the Board of Directors shall be
held at such times and places within or without the State of Delaware as the
Board of Directors may from time to time by resolution determine. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day. Notice
of regular meetings of the Board of Directors need not be given except as
otherwise required by statute or these By-Laws.
Section 5. Special Meetings. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board, the President or any two
directors of the Corporation and shall be held at such time and at such place
within or without the State of Delaware as shall be specified in the notice of
meeting or waiver thereof.
Section 6. Notice of Meetings. Notice of each special meeting of the Board of
Directors (and of each regular meeting for which notice shall be required) shall
be given by the Secretary as hereinafter provided in this Section 6, in which
notice shall be stated the time and place of the meeting. Notice of each such
meeting shall be delivered to each director, either personally or by telephone,
telegraph, cable, or wireless, at least twenty-four hours before the time at
which such meeting is to be held, or shall be mailed to each director by
first-class mail postage prepaid, addressed to him at his residence or usual
place of business, at least three days before the day on which such meeting is
to be held. Notice of any such meeting need not be given to any director who
shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting without objecting, at the beginning of such
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Except as otherwise specifically required by these By-Laws,
a notice or waiver of notice of any regular or special meeting of the Board of
Directors need not state the purpose or purposes of such meeting.
<PAGE>
Section 7. Quorum and Manner of Acting. Except as provided in Section 5 of
Article IX of these By-Laws, a majority of the directors shall be present in
person at any meeting of the Board of Directors in order to constitute a quorum
for the transaction of business at such meeting, and, except as otherwise
expressly required by statute or the Certificate of Incorporation, the act of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. In the absence of a quorum at any
meeting of the Board of Directors, a majority of the directors present thereat,
or if no director be present, the Secretary, may adjourn such meeting to another
time and place, or such meeting, unless it be the annual meeting of the Board of
Directors, need not be held. At any adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally called. Except as provided in Section 11 of this Article
III, Article IV and Section 4 of Article IX of these By-Laws and as otherwise
specifically authorized by resolution of the Board of Directors, the directors
shall act only as a Board of Directors and the individual directors shall have
no power as such.
Section 8. Organization. At each meeting of the Board of Directors, the Chairman
of the Board, if any, or, in his absence or inability to act, the President, or,
in his absence or inability to act, another director chosen by a majority of the
directors present, shall act as chairman of the meeting and preside thereat. The
minutes of the meeting shall be recorded by any officer of the Corporation
present and designated by the chairman.
Section 9. Resignations. Any director of the corporation may resign at any time
by giving written notice of his resignation to the Board of Directors, the
Chairman of the Board, the President or the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein, or, if the
time when it shall become effective shall not be specified therein, immediately
upon its receipt; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 10. Removal of Directors. Except as otherwise provided in the
Certificate of Incorporation or in these By-Laws, any director may be removed,
but only for cause, at any time, by the affirmative vote of the holders of a
majority of the outstanding shares of stock entitled to vote for the election of
directors of the Company at a meeting of the stockholders called and held for
that purpose.
Section 11. Vacancies. Except as otherwise required by statute or by the
Certificate of Incorporation, during the intervals between annual meetings of
stockholders, any vacancies and any newly-created directorships resulting from
an increase in the authorized number of directors shall be filled by a majority
vote of the directors then in office, whether or not a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
election of the class for which such directors shall have been chosen and until
their successors shall be duly elected and qualified, unless sooner displaced.
If there are no directors in office, then a special meeting of stockholders for
the election of directors may be called and held in the manner provided by
statute. When one or more directors shall resign from the Board of Directors,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this section in the filling of other vacancies.
Section 12. Compensation. The Board of Directors or a committee of the Board
designated by it shall have authority to fix the compensation, including without
limitation fees and reimbursement of expenses, of directors for services to the
Corporation in any capacity; provided, however, that no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 13. Action without Meeting. Any action required or permitted to be taken
at any meeting of the Board of Directors 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.
Section 14. Participation in Meetings by Telephone and Other Equipment. Members
of the Board of Directors or of any committee thereof may participate in a
meeting of the Board or 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 participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
<PAGE>
ARTICLE IV
Executive and Other Committees
Section 1. Executive and Other Committees. The Board of Directors may, by a
resolution passed by a majority of the whole Board, designate an Executive
Committee, to consist of three or more directors of the Corporation, and one or
more other committees, each such other committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of any member of the Executive Committee or such other
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. The Executive
Committee, while the Board of Directors is not in session, shall have and may
exercise, and any such other committee to the extent provided in the resolution
of the Board of Directors, shall have and may exercise, all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-Laws of the Corporation; and, unless the resolution or By-Laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Each committee shall keep
written minutes of its proceedings and shall report such minutes to the Board of
Directors when required. All such proceedings shall be subject to revision or
alteration by the Board of Directors; provided, however, that rights of third
parties shall not be prejudiced by such revision or alteration. The Board of
Directors, by action of a majority of the entire Board, may at any time fill
vacancies in, change the membership of, or dissolve any such committee.
Section 2. Executive Committee: General. Regular meetings of the Executive
Committee shall be held at such times and places, within or without the State of
Delaware, as a majority of such Committee may from time to time by resolution
determine. Special meetings of the Executive Committee may be called at the
request of any member thereof and may be held at such times and places, within
or without the State of Delaware, as such Committee may from time to time by
resolution determine or as shall be specified in the respective notices or
waivers of notice thereof. Notice of regular meetings of such Committee need not
be given except as otherwise required by statute or these By-Laws. Notice of
each special meeting of such Committee shall be given to each member of such
Committee in the manner provided for in Section 6 of Article III of these
By-Laws. Subject to the provisions of this Article IV, the Executive Committee,
by resolution of a majority of such Committee, shall fix its own rules of
procedure. A majority of the Executive Committee shall be present in person at
any meeting of the Executive Committee in order to constitute a quorum for the
transaction of business at such meeting, and the act of a majority of those
present at any meeting at which a quorum is present shall be the act of the
Executive Committee. The members of the Executive Committee shall act only as a
committee, and the individual members shall have no power as such.
Section 3. Other Committees: General. A majority of any committee may fix its
rules of procedure, determine its action, and fix the time and place, within or
without the State of Delaware, of its meetings, unless the Board of Directors
shall otherwise by resolution provide. Notice of such meetings shall be given to
each member of the committee in the manner provided for in Section 6 of Article
III of these By-Laws. Nothing in this Article IV shall be deemed to prevent the
Board of Directors from appointing one or more committees consisting in whole or
in part of persons who are not directors of the Corporation; provided, however,
that no such committee shall have or may exercise any authority of the Board.
<PAGE>
ARTICLE V
Officers
Section 1. Number and Qualifications. The officers of the Corporation shall
include a Chief Executive Officer, a President, an Executive Vice President, one
or more Vice Presidents, a Secretary and a Treasurer. Any two or more offices
may be held by the same person. Such officers shall be elected from time to time
by the Board of Directors, each to hold office until the meeting of the Board
following the next annual meeting of the stockholders, or until his successor
shall have been duly elected and shall have qualified, or until his death, or
until he shall have resigned or until he shall have been removed, as hereinafter
provided in these By-Laws. The Board of Directors may from time to time appoint
such other officers (including a Chairman of the Board and one or more Assistant
Treasurers and Assistant Secretaries) and such agents as it may deem necessary
or desirable for the business of the Corporation. The Board of Directors may
from time to time authorize any principal officer or committee to appoint, and
to prescribe the authority and duties of, any such subordinate officers or
agents. Each of such other officers and agents shall have such authority,
perform such duties, and hold office for such period, as are provided in these
By-Laws or as may be prescribed by the Board of Directors or by the principal
officer or committee appointing such officer or agent.
Section 2. Resignations. Any officer of the Corporation may resign at any time
by giving written notice of his resignation to the Board of Directors, the
Chairman of the Board, if any, the President or the Secretary. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon its
receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3. Removal. Any officer or agent of the Corporation may be removed,
either with or without cause, at any time, by the vote of the majority of the
entire Board of Directors at any meeting of the Board, or, except in the case of
an officer or agent elected or appointed by the Board, by any principal officer
or committee upon whom such power of removal may be conferred by the Board.
Section 4. Vacancies. A vacancy in any office, whether arising from death,
resignation, disqualification, removal or any other cause, may be filled for the
unexpired portion of the term of the office which shall be vacant, in the manner
prescribed in these By-Laws for the regular election or appointment to such
office.
Section 5. Chairman of the Board. The Chairman of the Board, if elected, shall,
if present, preside at all meetings of the stockholders and the Board of
Directors and shall be an ex officio member of all committees of the Board and,
in general, shall have such other powers and perform such other duties as
usually pertain to the office of the Chairman of the Board or as from time to
time may be assigned to him by the Board of Directors. At the discretion of the
Board of Directors, the Chairman of the Board, if elected, may be the chief
executive officer of the Corporation and, if so appointed by the Board of
Directors, shall have general and active supervision and direction over the
business and affairs of the Corporation and over its officers, subject, however,
to the control of the Board of Directors.
Section 6. The President. The President shall be the chief operating officer of
the Corporation and shall have general and active supervision and direction over
the ordinary business operations and affairs of the Corporation and over its
officers, subject, however, to the supervision and direction of the Chief
Executive Officer of the Corporation and to the control of the Board of
Directors. In general, the President shall have such other powers and perform
such other duties as usually pertain to the office of the President and chief
operating officer, or as from time to time may be assigned to him by the Board
of Directors.
Section 6.1. Chief Executive Officer. The Chief Executive Officer of the
Corporation shall have general and active supervision and direction over the
business and affairs of the Corporation and over its officers, subject, however,
to the control of the Board of Directors. In general, the Chief Executive
Officer shall have such other powers and perform such other duties as usually
pertain to the office of the chief executive officer, or as from time to time
may be assigned to him by the Board of Directors;
Section 7. Executive Vice President. The Executive Vice President shall have
such powers and perform such duties as from time to time may be assigned to him
by the Board of Directors, the Chairman of the Board, if any, or the President.
<PAGE>
Section 8. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and have control of all books of account of the
Corporation;
(c) cause all moneys and other valuables to be deposited to the credit of the
Corporation in such depositaries as may be designated by the Board of Directors;
(d) receive, and give receipts for, moneys due and payable to the Corporation
from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investment of its
funds as ordered or authorized by the Board of Directors, taking proper vouchers
therefor;
(f) render to the Chairman of the Board, if any, the President, the Board or any
committee thereof, whenever required, an account of the financial condition of
the Corporation and of his transactions as Treasurer;
(g) in general, have such other powers and perform such other duties as usually
pertain to the office of Treasurer or as from time to time may be assigned to
him by the Board of Directors, the Chairman of the Board, if any, or by the
President.
Section 9. Other Vice Presidents. Each other Vice President shall have such
powers and perform such duties as usually pertain to his office or as from time
to time may be assigned to him by the Board of Directors, the Chairman of the
Board, if any, or the President.
Section 10. Assistant Treasurers. At the request of the Treasurer or in case of
the absence or inability to act of the Treasurer, the Assistant Treasurer, or if
there be more than one, the Assistant Treasurer designated by the Board of
Directors or, in the absence of such designation, by the Chairman of the Board,
if any, or the President, shall perform all the duties of the Treasurer, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. In general, each Assistant Treasurer shall have
such other powers and perform such other duties as from time to time may be
assigned to him by the Board of Directors, the Chairman of the Board, if any,
the President or the Treasurer.
Section 11. Secretary. The Secretary shall:
(a) keep, or cause to be kept, in one or more books provided for the purpose,
the minutes of all meetings of the Board of Directors, of the committees of the
Board and of the stockholders;
(b) see that all notices are duly given in accordance with the provisions of
these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and affix and
attest the seal to all stock certificates of the Corporation (unless the seal of
the Corporation on such certificates shall be a facsimile, as hereinafter
provided) and affix and attest the seal to all other documents to be executed on
behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other documents
and records required by law to be kept and filed are properly kept and filed;
and
(e) in general, have such other powers and perform such other duties as usually
pertain to the office of Secretary or as from time to time may be assigned to
him by the Board of Directors, the Chairman of the Board, if any, or the
President.
Section 12. Assistant Secretaries. At the request of the Secretary or in case of
his absence or inability to act, the Assistant Secretary, or if there be more
than one, the Assistant Secretary designated by the Board of Directors or, in
the absence of such designation, by the Chairman of the Board, if any, or the
President, shall perform all the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Secretary. In general, each Assistant Secretary shall have such other powers and
perform such other duties as from time to time may be assigned to him by the
Board of Directors, the Chairman of the Board, if any, the President or the
Secretary.
Section 13. Officers' Bonds or Other Security. If required by the Board of
Directors, any officer of the Corporation shall give a bond for the faithful
performance of his duties and the return to the Corporation of any property in
his possession or control which is the property of the Corporation, for such
term and in such amount and with such surety or sureties as the Board may
require.
Section 14. Compensation. The compensation of the officers of the Corporation
for their services as such officers shall be fixed from time to time by the
Board of Directors or a committee of the Board designated by it, and no officer
of the Corporation shall be prevented from receiving compensation by reason of
the fact that he is also a director of the Corporation.
<PAGE>
ARTICLE VI
Checks, Drafts, Bank, Accounts, Etc.
Section 1. Checks, Drafts, etc. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation shall be signed in
the name and on behalf of the Corporation by such person or persons and in such
manner as shall from time to time be authorized by the Board of Directors.
Section 2. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositaries as the Board of Directors may from time to
time designate or as may be designated by any officer or officers of the
Corporation to whom such power of designation may from time to time be delegated
by the Board of Directors. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the Corporation may
be endorsed, assigned and delivered by any officer or agent of the Corporation.
Section 3. General and Special Bank Accounts. The Board of Directors may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositaries as the Board may
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board of Directors. The Board of Directors may make such special rules and
regulations with respect to such bank accounts, not inconsistent with provisions
of these By-Laws, as it may deem expedient.
Section 4. Proxies in Respect of Securities of Other Corporations. Unless
otherwise provided by resolution adopted by the Board of Directors, the Chairman
of the Board, if any, the President or any Vice President may from time to time
appoint an attorney or attorneys or agent or agents of the Corporation in the
name and on behalf of the Corporation to cast the votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other
corporation, any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing in the name of the Corporation as
such holder to any action by such other corporation, and may instruct the person
or persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed in the name and on behalf of
the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
<PAGE>
ARTICLE VII
Shares and Their Transfer - Examination of Books
Section 1. Stock Certificates. Every holder of stock of the Corporation shall be
entitled to have a certificate, in such form as shall be approved by the Board
of Directors, certifying the number and class of shares of stock of the
Corporation owned by him. The certificates representing shares of the respective
classes of stock shall be numbered in order of their issue and shall be signed
in the name of the Corporation by the Chairman of the Board, if any, or the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, and sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed). Any or all the
signatures on the certificate may be a 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.
Section 2. Books of Account and Record of Stockholders. The books and records of
the Corporation may be kept at such places, within or without the State of
Delaware, as the Board of Directors may from time to time determine. The stock
record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the Board of Directors.
Section 3. Transfers of Shares. Transfers of shares of stock of the Corporation
shall be made on the stock records of the Corporation only upon authorization by
the registered holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary or with a transfer agent
or transfer clerk, and on surrender of the certificate or certificates for such
shares properly endorsed or accompanied by a duly executed stock transfer power
and the payment of all taxes thereon. Except as otherwise provided by law, the
Corporation shall be entitled to recognize the exclusive right of a person in
whose name any share or shares stand on the record of stockholders as the owner
of such share or shares for all purposes, including without limitation the
rights to receive dividends or other distributions and to vote as such owner,
and the Corporation may hold any such stockholder of record liable for calls and
assessments and the Corporation shall not be bound to recognize any equitable or
legal claim to or interest in any such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof. Whenever
any transfers of shares shall be made for collateral security and not
absolutely, and both the transferor and transferee request the Corporation to do
so, such fact shall be stated in the entry of the transfer.
Section 4. Regulations. The Board of Directors may make such additional rules
and regulations, not inconsistent with these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
Section 5. Lost, Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost, stolen or destroyed or which shall have been
mutilated, and the Board of Directors may, in its discretion, require such owner
or his legal representatives to give the Corporation and/or any agent of the
Corporation designated by it a bond in such sum, limited or unlimited, and in
such form and with such surety or sureties as the Board in its absolute
discretion shall determine, to indemnify the Corporation and/or such agent
against any claim that may be made against it on account of the alleged loss
theft, or destruction of any such certificate, or the issuance of a new
certificate. Anything herein to the contrary notwithstanding, the Board of
Directors, in its absolute discretion, may refuse to issue any such new
certificate, except pursuant to legal proceedings under the laws of the State of
Delaware.
Section 6. Stockholder's Right of Inspection. Any stockholder of record, in
person or by attorney or other agent, shall, upon written demand under oath
stating the purpose thereof, have the right during the usual hours of business
to inspect for any proper purpose the Corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the Corporation at its registered
office in the State of Delaware or at its principal place of business.
<PAGE>
Section 7. Fixing of 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 to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall be not more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. 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 of Directors may fix a new record date for the adjourned
meeting.
ARTICLE VIII
Dividends
Subject to the provisions of the Certificate of Incorporation relating thereto,
if any, dividends upon the capital stock of the Corporation may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Subject to the provisions of the Certificate of Incorporation, dividends may be
paid in cash, in property or in shares of the capital stock of the Corporation.
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 Board of Directors
from time to time, in its 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 or
purposes as the Board of Directors shall determine to be in the interest of the
Corporation, and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
<PAGE>
ARTICLE IX
Indemnification
Section 1. Right to Indemnification. The Corporation shall, to the fullest
extent permitted by applicable law as then in effect, indemnify any person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or a witness) or was or is threatened to be made so
involved in any threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action, suit or proceeding by or in the
right of the Corporation to procure a judgement in its favor)(a "Proceeding") by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director or officer
of another corporation or of a partnership, joint venture, trust or other
enterprise (including, without limitation, service with respect to any employee
benefit plan), whether the basis of any such Proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director or officer, against all expenses, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred by him in connection with such Proceeding. The right to
indemnification conferred in this Article IX shall include the right to receive
payment in advance of any expenses incurred by the Indemnitee in connection with
such Proceeding, consistent with applicable law as then in effect. All right to
indemnification conferred in this Article IX, including such right to advance
payments and the evidentiary, procedural and other provisions of this Article
IX, shall be a contract right. The Corporation may, by action of its Board of
Directors, provide indemnification for employees, agents, attorneys and
representatives of the Corporation with up to the same scope and extent as
provided for officers and directors.
Section 2. Insurance, Contracts and Funding. The Corporation may purchase and
maintain insurance to protect itself and any person who is, was or may become an
officer, director, employee, agent, attorney or representative of the
Corporation or, at the request of the Corporation, an officer, director,
employee, agent, attorney or representative of another corporation or entity,
against any expense, liability or loss asserted against him or incurred by him
in connection with any Proceeding an any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
him against such expense, liability or loss under the provisions of this Article
IX or otherwise. The Corporation may enter into contracts with any director,
officer, employee, agent, attorney or representative of the Corporation, or any
person serving as such at the request of the Corporation for another corporation
or entity, in furtherance of the provisions of Article TENTH of the Certificate
of Incorporation or this Article IX and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such amounts as may be necessary to effect
indemnification of any person entitled thereto.
Section 3. Indemnification; Not Exclusive Right. The right of indemnification
provided in this Article IX shall not be exclusive of any other rights to which
any person seeking indemnification may otherwise be entitled under any provision
of the Certificate of Incorporation, By-law or agreement or otherwise. The
provisions of this Article IX shall inure to the benefit of the heirs and legal
representatives of any person entitled to indemnity under this Article IX and
shall be applicable to all Proceedings, whether arising from acts or omissions
occurring before or after the adoption of this Article IX. No amendment or
repeal of any provision of this Article IX shall remove, abridge or adversely
affect any right of indemnification or any other benefits of the Indemnitee
under the provisions of this Article IX with respect to any Proceeding involving
any act or omission which occurred prior to such amendment.
Section 4. Advancement of Expenses; Procedures; Presumptions and Effect of
Certain Proceedings; Remedies. In furtherance, but not in limitation, of the
provisions of the Certificate of Incorporation or the foregoing provisions of
this Article IX, the following procedures, presumptions and remedies shall apply
with respect to advancement of expenses and the right to indemnification under
the Certificate of Incorporation or this Article IX:
(a) Advancement of Expenses. All reasonable expenses incurred by or on behalf of
the Indemnitee in connection with any Proceeding shall be advanced to the
Indemnitee by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the Indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements reasonably shall
evidence the expenses incurred by the Indemnitee and, if required by law at the
time of such advance, shall include or be accompanied by an undertaking by or on
behalf of the Indemnitee to repay the amounts advanced if it should ultimately
be determined that the Indemnitee is not entitled to be indemnified against such
expense pursuant to this Article IX.
<PAGE>
(b) Procedure for Determination of Entitlement to Indemnification. (i) To obtain
indemnification, an Indemnitee shall submit to the Chairman of the Board, if
any, the President or Secretary of the Corporation a written request, including
such documentation and information as is reasonably available to the Indemnitee
and reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification (the "Supporting Documentation"). The
determination of the Indemnitee's entitlement to indemnification shall be made
not later than 60 days after receipt by the Corporation of the written request
for indemnification together with the Supporting Documentation. The Chairman of
the Board, if any, President or Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board of
Directors in writing that the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification shall be determined in one
of the following ways: (A) by a majority vote of the Disinterested Directors (as
hereinafter defined) (or the Disinterested Director, if only one); (B) by a
written opinion of Independent Counsel (as hereinafter defined) if (x) a Change
of Control (as hereinafter defined) shall have occurred and the Indemnitee so
requests or (y) there is no Disinterested Director or a majority of the
Disinterested Directors (or the Disinterested Director, if only one) so directs;
(C) by the stockholders of the Corporation (but only if a majority of the
Disinterested Directors (or the Disinterested Director, if only one) determines
that the issue of entitlement to indemnification should be submitted to the
stockholders for their determination); or (D) as provided in Section 4(c) of
this Article IX.
(iii) In the event the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 4(b)(ii) of this Article IX, a
majority of the Disinterested Directors (or the Disinterested Director, if only
one) shall select the Independent Counsel, but only an Independent Counsel to
which the Indemnitee does not reasonably object; provided, however, that if a
Change of control shall have occurred, the Indemnitee shall select such
Independent Counsel, but only an Independent Counsel to which the Board of
Directors does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Indemnitee shall be presumed
to be entitled to indemnification upon submission of a request for
indemnification together with the Supporting Documentation in accordance with
Section 4(b)(i) of this Article IX, and thereafter the Corporation shall have
the burden of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered under Section
4(b) of this Article IX to determine entitlement to indemnification shall not
have been appointed or shall not have made a determination within 60 days after
receipt by the Corporation of the request therefor together with the Supporting
Documentation, the Indemnitee shall be deemed to be entitled to indemnification.
With regard to the right to indemnification for expenses, if and to the extent
that the Indemnitee has been successful on the merits or otherwise in any
Proceeding, or if and to the extent that the Indemnitee was not a party to the
Proceeding or if a Proceeding was terminated without a determination of
liability on the part of the Indemnitee with respect to any claim, issue or
matter therein or without any payments in settlement or compromise being made by
the Indemnitee with respect to a claim, issue or matter therein, the Indemnitee
shall be deemed to be entitled to indemnification, which entitlement shall not
be diminished by any determination which may be made pursuant to Sections
(4)(b)(ii)(A), (B) or (C). In either case, the Indemnitee shall be entitled to
such indemnification, unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (B) such indemnification is prohibited by law, in
either case as finally determined by adjudication or, at the Indemnitee's sole
option, arbitration (as provided in Section 4(d)(i) of this Article IX). The
termination of any Proceeding described in Section 1 of this Article IX, or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, adversely affect the right of the Indemnitee to indemnification or
create any presumption with respect to any standard of conduct or belief or any
other matter which might form a basis for a determination that the Indemnitee is
not entitled to indemnification.
(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to Section 4(b) of this
Article IX that the Indemnitee is not entitled to indemnification under this
Article IX, (A) the Indemnitee shall be entitled to seek an adjudication of his
entitlement to such indemnification either, at the Indemnitee's sole option, in
(x) an appropriate court of the State of Delaware or any other court of
competent jurisdiction or (y) an arbitration to be conducted by three
arbitrators (or, if the dispute involves less than $100,000, by a single
arbitrator) pursuant to the rules of the American Arbitration Association; (B)
any such judicial proceeding or arbitration shall be de novo and the Indemnitee
shall not be prejudiced by reason of such adverse determination; and (C) in any
such judicial proceeding or arbitration the Corporation shall have the burden of
proof that the Indemnitee is not entitled to indemnification under this Article
IX.
<PAGE>
(ii) If a determination shall have been made or deemed to have been made,
pursuant to Section 4(b) or (c) of this Article IX, that the Indemnitee is
entitled to indemnification, the Corporation shall be obligated to pay the
amounts constituting such indemnification within five days after such
determination has been made or deemed to have been made and shall be
conclusively bound by such determination, unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such indemnification
is prohibited by law, in either case as finally determined by adjudication or,
at the Indemnitee's sole option, arbitration (as provided in Section 4(d)(i) of
this Article IX). In the event that (C) advancement of expenses is not timely
made pursuant to Section 4(.a) of this Article IX or (D) payment of
indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 4(b) or (c) of this Article IX, the Indemnitee shall be
entitled to seek judicial enforcement of the Corporation's obligation to pay to
the Indemnitee such advancement of expenses or indemnification. Notwithstanding
the foregoing, the Corporation may bring an action, in an appropriate court in
the State of Delaware or any other court of competent jurisdiction, contesting
the right of the Indemnitee to receive indemnification hereunder due to the
occurrence of an event described in subclause (A) or (B) of this clause (ii) (a
"Disqualifying Event"), provided, however, that if the Indemnitee shall elect,
at his sole option, that such dispute shall be determined by arbitration (as
provided in Section 4(d)(i) of this Article IX), the Corporation shall proceed
by such arbitration. In any such enforcement or other proceeding or action in
which whether a Disqualifying Event has occurred is an issue, the Corporation
shall have the burden of proving the occurrence of such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 4(d) that the
procedures and presumptions of this Article IX are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
or arbitrators that the Corporation is bound by all the provisions of this
Article IX.
(iv) In the event that the Indemnitee, pursuant to this Article IX, seeks a
judicial adjudication of or an award in arbitration to enforce his rights under,
or to recover damages for breach of, this Article IX, or is otherwise involved
in any adjudication or arbitration with respect to his right to indemnification,
the Indemnitee shall be entitled to recover from the Corporation, and shall be
indemnified by the Corporation against, any expenses actually and reasonably
incurred by him if the Indemnitee prevails in such judicial adjudication or
arbitration. If it shall be determined in such judicial adjudication or
arbitration that the Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses incurred by the
Indemnitee in connection with such judicial adjudication or arbitration shall be
prorated accordingly.
(e) Definitions. For purposes of this Section 4:
(i) "Change in Control" means a change in control of the Corporation of a nature
that would be required to be reported in response to Item 5(f) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act of 1934 (the
"Act"), whether or not the Corporation is then subject to such reporting
requirement; provided that, without limitation, such a change in control shall
be deemed to have occurred if (A) any "person" (as such term is used in Sections
13(d) and 14(d) of the Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the
Corporation representing 20 percent or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office immediately prior
to such acquisition; (B) the Corporation is a party to a merger, consolidation,
sale of assets or other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter; or (C) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors (including
for this purpose any new director whose election or nomination for election by
the Corporation's stockholders was approved by a vote of at least two-thirds of
the directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of
Directors.
(ii) "Disinterested Director" means a director of the Corporation who is not or
was not a material party to the Proceeding in respect of which indemnification
is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a law firm that
neither presently is, nor in the past five years has been, retained to
represent: (A) the Corporation or the Indemnitee in any matter or (B) any other
party to the Proceeding giving rise to a claim for indemnification under this
Article IX. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would have a
conflict of interest in representing either the Corporation or the Indemnitee in
an action to determine the Indemnitee's rights under this Article IX.
<PAGE>
Section 5. Acts of Disinterested Directors. Disinterested Directors considering
or acting on any indemnification matter under this Article IX or otherwise may
consider or take action as the Board of Directors or may consider or take action
as a committee or individually or otherwise. In the event Disinterested
Directors consider or take action as the Board of Directors, one- third of the
total number of directors shall constitute a quorum.
Section 6. Severability. If any provision or provisions of this Article IX shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (i)
the validity, legality and enforceability of the remaining pro- visions of this
Article IX (including, without limitation, all portions of any paragraph of this
Article IX containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (ii) to the fullest extent
possible, the provisions of this Article IX (including, without limitation, all
portions of any paragraph of this Article IX containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
<PAGE>
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors.
ARTICLE XI
Seal
The Board of Directors shall provide a corporate seal, which shall be circular
in form and bear the name of the Corporation and the words and figures denoting
its organization under the laws of the State of Delaware and the year thereof.
ARTICLE XII
Amendments
These By-Laws may be amended or repealed, or new By-Laws may be adopted, except
as provided in Section 3 of Article IX of these By-Laws, (a) at any annual or
special meeting of the stockholders, by a majority of the total votes of the
stockholders or when stockholders are entitled to vote by class, by a majority
of the appropriate class, present in person or represented by proxy and entitled
to vote on such action; provided, however, that the notice of such meeting shall
have been given as provided in these By- Laws, which notice shall mention that
amendment or repeal of these By-Laws or the adoption of new By-Laws is one of
the purposes of such meeting, or (b) by the Board of Directors at any meeting
thereof; provided, however, that notice of such meeting shall have been given as
provided in these By-laws, which notice shall mention that amendment or repeal
of the By-Laws or the adoption of new By-Laws is one of the purposes of such
meeting; provided, further, that By-Laws adopted by the Board of Directors may
be amended or repealed by the stockholders as hereinabove provided; provided,
further, that the stockholders may limit the power of the Board of Directors to
make, amend, alter or repeal the By-laws of the Company. Notwithstanding the
foregoing, the provisions of these By-Laws with respect to the number,
classification, term of office, qualifications, election and removal of
directors and the filling of vacancies and newly created directorships, and the
amendment thereof, that is, Sections 2, 10 and 11 of Article III and this
Article XII, may be amended or repealed or new By-Laws affecting such provisions
may be adopted only with the unanimous approval of the entire Board of Directors
or by the affirmative vote of the holders of at least 80% of the outstanding
shares of stock of the Corporation entitled to vote in elections of directors
(except that if such proposed amendment or repeal or adoption of new By-Laws
shall be submitted to the stockholders with the unanimous recommendation of the
entire Board of Directors, such provisions may be amended or repealed or such
new By-Laws may be adopted by the affirmative vote of the holders of a majority
of such stock).
<PAGE>
