<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) March 15, 2000
MAGNA ENTERTAINMENT CORP.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware, United States of America
- --------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation)
0-28003 98-0208374
- --------------------------------- ------------------------------------
(Commission File Number (I.R.S. Employer Identification No.)
285 West Huntington Drive, Arcadia, California 91007
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(626) 574-7223
- --------------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
- --------------------------------------------------------------------------------
(Former Name or Former Address, if changed Since Last Report)
ITEM 5. OTHER EVENTS
On March 1, 2000, the Registrant filed Restated Certificate of Incorporation
with the Office of the Secretary of State of Delaware. On March 1, 2000, the
Registrant repealed General By-law No. 1 and enacted General By-law No. 2.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business Acquired:
Not Applicable
(b) Pro Forma Financial Information:
Not Applicable
<PAGE>
-2-
(c) Exhibits:
Exhibit No. Description
- ----------- -----------
3.1 Restated Certificate of Incorporation of Magna Entertainment
Corp.
3.2 General By-law No. 2 of Magna Entertainment Corp., being the
only by-law in effect of the Registrant
<PAGE>
-3-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized
MAGNA ENTERTAINMENT CORP.
(Registrant)
Date: March 15, 2000 by: /s/ J. Brian Colburn
----------------------------
J. Brian Colburn, Secretary
<PAGE>
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION OF EXHIBIT
- ------- ----------------------
3.1 Restated Certificate of Incorporation of Magna Entertainment
Corp.
3.2 General By-law No. 2 of Magna Entertainment Corp., being the
only by-law in effect of the Registrant
<PAGE>
EXHIBIT 3.1
State of Delaware
Page 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"MAGNA ENTERTAINMENT CORP.", FILED IN THIS OFFICE ON THE FIRST DAY OF MARCH,
A.D. 2000, AT 12:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEWCASTLE COUNTY
RECORDER OF DEEDS.
"Seal of the Secretary /s/ Edward J. Freel
of State of Delaware" -----------------------------------
Edward J. Freel, Secretary of State
3012223 8100 AUTHENTICATION: 0289218
001103746 DATE: 03-01-00
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
MAGNA ENTERTAINMENT CORP.
-------------------------
MAGNA ENTERTAINMENT CORP., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of said corporation, by written consent,
filed with the minutes of the board, adopted resolutions setting forth a
proposed restatement to the Certificate of Incorporation, as filed pursuant to
section 245 of the General Corporation Law of the State of Delaware (the "GCL")
on 4 March 1999 under the name MI Venture Inc., as amended by the Certificate of
Amendment of the Corporation filed 30 August 1999, as amended by the Certificate
of Amendment of the Corporation filed 4 November 1999, as amended by the
Certificate of Amendment of the Corporation filed 8 November 1999, as amended by
the Certificate of Amendment of the Corporation filed 26 January 2000 and as
amended by the Certificate of Amendment of the Corporation filed 29 February
2000 (the "Certificate of Incorporation"), declaring said restatement and
integration of the Certificate of Incorporation to be advisable.
SECOND: That this Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of this Corporation as heretofore amended or supplemented and
there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
THIRD: That in lieu of a meeting and vote of stockholders, a majority of the
stockholders have given their written consent to the said restatement and
integration of the Certificate of Incorporation and notice of said restatement
and integration of the Certificate of Incorporation will be given to the other
stockholders in accordance with the provisions of sections 228 and 245 of the
GCL.
FOURTH: That the aforesaid restatement and integration of the Certificate of
Incorporation was duly adopted in accordance with the applicable provisions of
sections 228 and 245 of the GCL.
FIFTH: Said restatement and integration of the Certificate of Incorporation is
as follows:
FIRST: The name of the Corporation is MAGNA ENTERTAINMENT CORP.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business or purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware (the GCL"), and in general, to possess and
exercise all the powers and privileges granted by the GCL or by any other law of
Delaware or this Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are necessary to the
interest, promotion or attainment of the business or purposes of the
Corporation.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is four hundred million (400,000,000) shares, par value,
$0.01 per share, three hundred and ten million (310,000,000) of which shall be
"Class A Subordinate Voting Stock" and ninety million (90,000,000) of which
shall be "Class B Stock". The rights, privileges, restrictions and conditions
attaching to the Class A
<PAGE>
-2-
Subordinate Voting Stock and the Class B Stock are as follows:
(a) Rights, privileges, restrictions and conditions
attaching to the Class A Subordinate Voting Stock.
-------------------------------------------------
(i) Voting.
------
The Class A Subordinate Voting Stock shall carry and
be entitled to one (1) vote per share at all meetings
of the stockholders of the Corporation, except a
meeting of the holders of only a particular class or
series of stock other than the Class A Subordinate
Voting Stock.
(ii) Dividends.
---------
The holders of the Class A Subordinate Voting Stock
shall be entitled to receive such dividends as may
from time to time be declared thereon by the Board of
Directors. Subject to paragraph (a)(iii) below, each
------------------
share of Class A Subordinate Voting Stock shall
participate equally as to dividends with each share
of Class B Stock without preference, priority or
distinction. Subject to paragraph (a)(iii) below, no
------------------
dividend shall at any time be declared or set aside
or paid on the Class B Stock unless, on the same
date, a dividend in the same amount per share (to the
extent that such dividend is payable in cash) or
identical property of equal value per share (to the
extent that such dividend is not payable in cash), as
the case may be, is declared to be payable on the
Class A Subordinate Voting Stock, which dividend
shall be payable on the same date as that declared on
the Class B Stock. The holders of the Class A
Subordinate Voting Stock shall not be entitled to any
dividends other than or in excess of the dividends
hereinbefore provided for in this paragraph (a)(ii).
-----------------
(iii) Stock Dividends.
---------------
Notwithstanding the provisions of paragraph (a)(ii)
-----------------
above contemplating the declaration or payment of
dividends in identical property, the Board of
Directors may, in declaring simultaneous dividends on
both the Class A Subordinate Voting Stock and the
Class B Stock, cause the dividend on the Class A
Subordinate Voting Stock to be payable in Class A
Subordinate Voting Stock and the dividend on the
Class B Stock to be payable in Class A Subordinate
Voting Stock or in Class B Stock, but no dividend
payable in Class B Stock shall be declared on the
Class A Subordinate Voting Stock.
(iv) Subdivision or Consolidation
----------------------------
Neither the Class A Subordinate Voting Stock nor the
Class B Stock shall be subdivided, consolidated,
reclassified or otherwise changed unless,
contemporaneously therewith, the other class of
shares is subdivided, consolidated, reclassified or
otherwise changed in the same proportion and in the
same manner.
<PAGE>
-3-
(v) Dissolution.
------------
In the event of the liquidation, dissolution or
winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets
of the Corporation among its stockholders for the
purpose of winding-up its affairs, all the property
and assets of the Corporation available for
distribution to the holders of the Class A
Subordinate Voting Stock or the Class B Stock shall
be paid or distributed equally, share for share, to
the holders of the Class A Subordinate Voting Stock
and the Class B Stock, respectively, without
preference, priority or distinction.
(vi) Amendment.
----------
This Certificate of Incorporation may be amended to
add, delete or vary any right, privilege, restriction
or condition attaching to the Class A Subordinate
Voting Stock which does not adversely affect the
rights of the holders of Class A Subordinate Voting
Stock without the separate approval of the holders of
the Class A Subordinate Voting Stock. Any amendment
to the Certificate of Incorporation to create stock
ranking in priority to or on a parity with the Class
A Subordinate Voting Stock shall be deemed not to
adversely affect the rights of the holders of Class A
Subordinate Voting Stock and may be made without the
separate approval of the holders of the Class A
Subordinate Voting Stock. Any amendment to this
Certificate of Incorporation to add, delete or vary
any right, privilege, restriction or condition
attaching to the Class A Subordinate Voting Stock
which adversely affects the rights of the holders of
Class A Subordinate Voting Stock may be made only
with the separate approval of the holders of the
Class A Subordinate Voting Stock given:
(A) in accordance with paragraph (a)(vii) below;
------------------
and
(B) in writing by the holders of all the
outstanding Class A Subordinate Voting Stock
or by a resolution authorized by at least
two-thirds (2/3rds) of the votes cast at a
separate meeting of the holders of the Class
A Subordinate Voting Stock duly called and
held for that purpose upon not less than
twenty-one (21) days' notice, such meeting to
be held and such notice to be given in
accordance with the by-laws of the
Corporation in that regard, provided that
each holder of a share of Class A Subordinate
Voting Stock shall be entitled to one (1)
vote at such meeting in respect of each share
of Class A Subordinate Voting Stock held by
such holder.
Any approval given as aforesaid shall be in addition
to any other consent or approval required by
applicable law.
<PAGE>
-4-
(vii) Elections and Approval.
----------------------
Any election or approval by the holders of the Class
A Subordinate Voting Stock voting separately as a
class as contemplated or required herein shall mean
the election by, or approval given by, a majority of
the votes cast at a meeting of such holders other
than the votes attaching to the Class A Subordinate
Voting Stock beneficially owned, directly or
indirectly, by Magna International Inc. and its
successors ("Magna") or any of its affiliates or by
any person who, by agreement, is acting jointly with
Magna or any such affiliate, or over which Magna, any
of its affiliates or any such person exercises direct
or indirect control. "Affiliate" and "control" shall
have the meanings specified in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended, or any
successor rule.
(b) Rights, privileges, restrictions and conditions
attaching to the Class B Stock.
-----------------------------------------------------
(i) Voting.
------
The Class B Stock shall carry and be entitled to
twenty (20) votes per share at all meetings of the
stockholders of the Corporation, except a meeting of
the holders of only a particular class or series of
stock other than the Class B Stock.
(ii) Dividends.
---------
The holders of the Class B Stock shall be entitled to
receive such dividends as may from time to time be
declared thereon by the Board of Directors. Subject
to paragraph (b)(iii) below, each share of Class B
------------------
Stock shall participate equally as to dividends with
each share of Class A Subordinate Voting Stock
without preference, priority or distinction. Subject
to paragraph (b)(iii) below, no dividend shall at any
------------------
time be declared or set aside or paid on the Class B
Stock unless, on the same date, a dividend in the
same amount per share (to the extent that such
dividend is payable in cash) or identical property of
equal value per share (to the extent that such
dividend is not payable in cash), as the case may be,
is declared to be payable on the Class A Subordinate
Voting Stock, which dividend shall be payable on the
same date as that declared on the Class B Stock. The
holders of the Class B Stock shall not be entitled to
any dividends other than or in excess of the
dividends hereinbefore provided for in this paragraph
---------
(b)(ii).
-------
(iii) Stock Dividends.
---------------
Notwithstanding the provisions of paragraph (b)(ii)
-----------------
above contemplating the declaration or payment of
dividends in identical property, the Board of
Directors may, in declaring simultaneous dividends on
both the Class A Subordinate Voting Stock and the
Class B Stock, cause the dividend on the Class A
Subordinate Voting Stock to be payable in Class A
Subordinate Voting Stock
<PAGE>
-5-
and the dividend on the Class B Stock to be payable
in Class A Subordinate Voting Stock or in Class B
Stock, but no dividend payable in Class B Stock shall
be declared on the Class A Subordinate Voting Stock.
(iv) Subdivision or Consolidation
----------------------------
Neither the Class B Stock nor the Class A Subordinate
Voting Stock shall be subdivided, consolidated,
reclassified or otherwise changed unless,
contemporaneously therewith, the other class of
shares is subdivided, consolidated, reclassified or
otherwise changed in the same proportion and in the
same manner.
(v) Dissolution.
-----------
In the event of the liquidation, dissolution or
winding-up of the Corporation, whether voluntary or
involuntary, or any other distribution of the assets
of the Corporation among its stockholders for the
purpose of winding-up its affairs, all the property
and assets of the Corporation available for
distribution to the holders of the Class B Stock or
the Class A Subordinate Voting Stock shall be paid or
distributed equally, share for share, to the holders
of the Class B Stock and the Class A Subordinate
Voting Stock, respectively, without preference,
priority, or distinction.
(vi) Conversion Right.
-----------------
The Class B Stock may, upon and subject to the terms
and conditions hereinafter set forth, be converted at
any time by the holder or holders thereof into
fully-paid and non-assessable Class A Subordinate
Voting Stock of the Corporation on the basis of one
(1) share of Class A Subordinate Voting Stock for
each share of Class B Stock; provided, however, that
in the event of the liquidation, dissolution or
winding-up of the Corporation, whether voluntary or
involuntary, such right of conversion shall cease and
expire at noon on the business day next preceding the
date of such liquidation, dissolution or winding-up.
(vii) Conversion Procedure.
---------------------
A holder of the Class B Stock desiring to convert
some or all of his Class B Stock into Class A
Subordinate Voting Stock in accordance with the
foregoing shall surrender the certificate or
certificates representing the Class B Stock which
such holder desires to be converted to the
Corporation at its registered office or to the
transfer agent, if any, for the Class B Stock,
together with a written request for such conversion
in such form and with such verification of signature,
as the Board of Directors may from time to time
require.
(viii) Issuance of Class B Stock.
-------------------------
The Board of Directors shall not authorize the
issuance of any
<PAGE>
-6-
Class B Stock (other than in connection with a stock
dividend) without the prior approval of the holders
of the Class B Stock given by ordinary resolution,
voting as a separate class.
(ix) Amendment.
---------
This Certificate of Incorporation may be amended to
add, delete or vary any right, privilege, restriction
or condition attaching to the Class B Stock or to
create Stock ranking in priority to or on a parity
with the Class B Stock, but only with the approval of
the holders of the Class B Stock given in writing by
the holders of all of the outstanding Class B Stock
or by a resolution authorized by at least two-thirds
(2/3rds) of the votes cast at a separate meeting of
the holders of the Class B Stock duly called and held
for that purpose upon not less than twenty-one (21)
days' notice, such meeting to be held and such notice
to be given in accordance with the by-laws of the
Corporation in that regard, provided that each holder
of a share of Class B Stock shall be entitled to
twenty (20) votes at such meeting in respect of each
share of Class B Stock held by such holder.
Any approval given as aforesaid shall be in addition
to any other consent or approval required by
applicable law.
FIFTH: The name and mailing address of the incorporator is:
J. Brian Colburn
337 Magna Drive
Aurora, Ontario L4G 7K1
Canada
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the by-laws of the Corporation.
EIGHTH: Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the by-laws of the Corporation. Elections of directors
need not be by written ballot unless the by-laws of the Corporation shall so
provide.
NINTH: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute and in the by-laws of the Corporation, and all
rights conferred upon stockholders hereby are granted subject to this
reservation.
<PAGE>
-7-
TENTH: To the fullest extent permitted by the GCL as it exists on the date
hereof or as it may hereafter be amended, a director of the Corporation shall
not be liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. No amendment to or repeal of this
Article TENTH shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
ELEVENTH: CORPORATE CONSTITUTION
Definitions
- -----------
1. As used in these Articles, unless the context otherwise requires:
(a) "Affiliate" means any of the Corporation's affiliates, subsidiaries or
any body corporate, partnership or other entity over which the
Corporation or its subsidiaries have a fifty per cent ownership
interest or greater;
(b) "After Tax Profits" means the Net income or Net loss of the
Corporation as set forth in its audited Consolidated Statement of
Income or Loss for each Year, adjusted to deduct extraordinary gains
or gains which arise from the disposal by the Corporation of existing
businesses or fixed assets as set forth in its audited Consolidated
Statement of Income or Loss;
(c) "Corporate Management" collectively means Executive Management and any
other individual employed by the Corporation that Executive Management
determines from time to time to be a member of Corporate Management;
(d) "Executive Management" collectively means the chief executive officer,
the president, the chief operating officer and the chief financial
officer of the Corporation and any other individual employed by the
Corporation that the Board determine from time to time to be a member
of Executive Management;
(e) "Pre-Tax Profits" means After-Tax Profits, adjusted to add back the
provisions for income taxes and minority interests or to deduct the
recoveries for income taxes and minority interests as set forth in the
Corporation's audited Consolidated Statement of Income or Loss for
such Year;
(f) "Pre-Tax Profits Before Profit Sharing" means an amount which is the
total of Pre-Tax Profits and those amounts actually deducted in
calculating Pre-Tax Profits pursuant to paragraph Eleventh 5(b) of
these Articles;
(g) "Social Objectives" means objectives that are from time to time, in
the sole opinion of Executive Management, of a political, patriotic,
philanthropic, charitable, educational, scientific, artistic, social,
or other useful nature to the communities in which the Corporation or
its Affiliates operate;
(h) "Year" means the financial or fiscal year of the Corporation from time
to time.
Except as expressly defined in this subparagraph, those words and
expressions defined in the GCL shall have the same meanings when used in
these Articles.
Board of Directors
- -------------------
2. Unless otherwise approved by ordinary resolution by the holders of the
Class A Subordinate Voting
<PAGE>
-8-
Stock and the holders of the Class B Stock, each voting separately as a
class:
(a) a majority of the directors of the Corporation shall be individuals
who are not officers or employees of the Corporation or persons
related to such officers or employees; and
(b) at least two of the directors of the Corporation shall be individuals
who are not officers or employees of the Corporation or any of its
Affiliates, including Magna, or directors of any of the Corporation's
Affiliates, including Magna, or persons related to any such officers,
employees or directors.
Capital Stock
- -------------
3. No resolution of the Corporation purporting to:
(a) increase the maximum number of authorized shares of any class of stock
of the Corporation; or
(b) create a new class or series of stock having voting rights of whatever
kind (other than on default of payment of dividends) or having rights
to participate in the profits of the Corporation in whatever manner
(other than a class or series of stock convertible into existing
classes of stock or a class or series of stock having a fixed dividend
or a dividend determined without regard to profits),
shall be effective unless, in addition to any other approval required by
the GCL, such resolution is approved by ordinary resolution of the holders
of each of the Class A Subordinate Voting Stock and Class B Stock voting
separately as a class.
Dividend Policy
- ---------------
4. Unless otherwise approved by ordinary resolution of the holders of each of
the Class A Subordinate Voting Stock and Class B Stock voting separately as
a class, the holders of the Class A Subordinate Voting Stock and Class B
Stock shall be entitled to receive and the Corporation shall pay thereon,
as and when declared by the Corporation's board of directors out of the
moneys of the Corporation properly applicable to the payment of dividends,
non-cumulative dividends in respect of each Year referred to below so that
the aggregate of the dividends paid or payable in respect of such Year by
the Corporation:
(a) beginning in respect of the Year commencing January 1, 2004, is equal
to at least ten per cent (10%) of its After-Tax Profits for the Year;
and, in respect of all Years commencing after January 1, 2006, shall be
equal to the greater of:
(b) the amount specified in the preceding subparagraph (a); and
(c) an amount which, when added to the aggregate of such dividends paid in
respect of the two immediately preceding Years, equals twenty per cent
(20%) of the aggregate of its After-Tax Profits for the Year and the
two (2) immediately preceding Years.
For the purposes of this paragraph 4, a dividend shall be deemed to be paid
in respect of the fiscal quarter immediately preceding the fiscal quarter
in which such dividend is declared; provided that the Board may specify
that any dividend be deemed to be paid in respect of that fiscal quarter in
which it is declared or in respect of a future quarter.
<PAGE>
-9-
Distribution Policy
- -------------------
5. Beginning in respect of the Year commencing January 1, 2004, unless
otherwise approved by ordinary resolution of the holders of each of the
Class A Subordinate Voting Stock and Class B Stock voting separately as a
class, the Corporation shall be required to make distributions in
accordance with the following provisions:
(a) A maximum of two per cent (2%) of Pre-Tax Profits of the Corporation
for any Year shall be allocated by the Corporation to the promotion of
Social Objectives, during the Year or the Year immediately following
such Year; and
(b) The aggregate incentive bonuses paid or payable to Corporate
Management in respect of each Year of the Corporation shall not exceed
an amount equal to six per cent (6%) of the Pre-Tax Profits Before
Profit Sharing (if any) of the Corporation for such Year; provided,
however, that Executive Management (with the approval of the Board or
a duly appointed Committee of the Board) shall have the right to
allocate the amount to be paid to individuals within Corporate
Management as well as to determine the timing and manner (whether by
shares or cash or otherwise) of payment.
Amendment of Corporate Constitution
- -----------------------------------
6. No resolution purporting to amend the Articles to delete, add to or amend
the provisions of this Corporate Constitution shall be effective unless
such resolution is approved by ordinary resolution of the holders of the
Class A Subordinate Voting Stock and the holders of the Class B Stock, each
voting separately as a class.
Approvals
- ---------
7. Any approval by the holders of the Class A Subordinate Voting Stock voting
separately as a class as required by this Corporate Constitution shall mean
the approval given by a majority of the votes cast at a meeting of such
holders other than the votes attaching to the Class A Subordinate Voting
Stock beneficially owned, directly or indirectly, by Magna or any of its
affiliates or by any person who, by agreement, is acting jointly with Magna
or any such affiliate, or over which Magna, any of its affiliates or any
such person exercises direct or indirect control or direction. Any such
approval given as aforesaid shall be in addition to any other consent or
approval required by the GCL.
THE UNDERSIGNED, being the Executive Vice-President and Secretary, does make
this Restated Certificate, hereby declaring and certifying that this is my act
and deed and the facts herein stated are true, and accordingly have hereunto set
my hand this 1st day of March, 2000.
/s/ J. Brian Colburn
----------------------------------------
J. Brian Colburn
Executive Vice-President and Secretary
<PAGE>
EXHIBIT 3.2
GENERAL BY-LAW NO. 2
OF
MAGNA ENTERTAINMENT CORP.
-------------------
ARTICLE 1
MEETINGS OF STOCKHOLDERS
Section 1.1. Place of Meetings. Meetings of the stockholders shall be held at
-----------------
such place within or without the State of Delaware as shall be designated by the
Board of Directors or the person or persons calling the meeting.
Section 1.2. Annual Meetings. The annual meeting of the stockholders for the
---------------
election of directors and the transaction of such other business as may properly
come before the meeting shall be held after the close of the Corporation's
fiscal year on such date and at such time as shall be designated by the Board of
Directors.
Section 1.3. Special Meetings. Except as otherwise provided in the Restated
----------------
Certificate of Incorporation of the Corporation, special meetings may be called
at any time by the Chairman of the Board, the President, the Board of Directors
or the holders of stock of the Corporation with aggregate voting power equal to
not less than one-fifth (1/5) of the aggregate voting power of all of the
outstanding stock of any class entitled to vote for the election of directors.
Section 1.4. Notice of Meetings. A written notice stating the place, date, and
------------------
hour of each meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called shall be given by, or at the direction
of, the Secretary or the person or persons authorized to call the meeting to
each stockholder of record entitled to vote at such meeting, not less than ten
(10) days nor more than sixty (60) days before the date of the meeting, unless a
greater period of time is required by law in a particular case.
Section 1.5. Record Date. In order to 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, the
Board of Directors may fix, in advance, a record date, which shall not be more
than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. If no record
date is fixed: (i) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; and (ii) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed. 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.
Section 1.6. Action Without a Meeting. Any action required to be taken at any
------------------------
annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of the stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
<PAGE>
-2-
Section 1.7. Quorum. A stockholders' meeting duly called shall not be
------
organized for the transaction of business unless a quorum is present. A majority
of the outstanding shares entitled to vote, present in person or represented by
proxy, shall constitute a quorum. Once a quorum has been established, the
stockholders present in person or represented by proxy at a duly organized
meeting can continue to do business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum. If any meeting of
stockholders cannot be organized because of lack of a quorum, those present in
person or by proxy shall have the power, except as otherwise provided by
statute, to adjourn the meeting to such time and place as they may determine,
but in the case of any meeting called for the election of directors, the shares
present in person or represented by proxy at the second of such adjourned
meetings, consisting of at least one-third (1/3) of the outstanding shares
entitled to vote, shall nevertheless constitute a quorum for the purpose of
electing directors.
Section 1.8. Action by Stockholders; Voting. Except as may otherwise be provided
-------------------------------------------------------------------
by statute, the Restated Certificate of Incorporation or these By-laws, (i) each
stockholder of record present in person or by proxy shall be entitled, at every
stockholders' meeting, to one vote for each share of capital stock having voting
power standing in the name of such stockholder on the books of the Corporation,
and (ii) the affirmative vote of a majority of the shares present in person or
represented by proxy at a duly organized meeting and entitled to vote on the
subject matter shall be the act of the stockholders.
ARTICLE II
DIRECTORS
Section 2.1. Powers of Directors. The business and affairs of the Corporation
----------------------------------------------------------------
shall be managed by or under the direction of the Board of Directors, which
shall exercise all powers that may be exercised or performed by the Corporation
and that are not by statute, the Restated Certificate of Incorporation or these
By-laws directed to be exercised or performed by the stockholders.
Section 2.2 Number, Election and Term of Office. The number of directors that
-----------------------------------
shall constitute the whole Board of Directors shall be not less than one (1) and
not more than ten (10). The number of directors of the Corporation and the
number of directors to be elected at the annual meeting of stockholders shall be
such number as shall be determined from time to time by resolution of the
directors. Directors need not be stockholders of the Corporation. The directors
shall be elected by the stockholders at the annual meeting or any special
meeting called for such purpose. Each director shall hold office until his or
her successor shall be duly elected and qualified or until his or her earlier
resignation or removal. A director may resign at any time upon written notice to
the Corporation. The Board of Directors may at any time elect or appoint one of
its members as Chairman of the Board of the Corporation, who shall preside at
meetings of the Board of Directors and of the stockholders and shall have such
powers and perform such duties as shall from time to time be prescribed by the
Board of Directors.
Section 2.3. Vacancies. Vacancies and newly created directorships resulting
---------
from any increase in the authorized number of directors may be filled by a
majority vote of the directors then in office, although less than a quorum, or
by a sole remaining director. The occurrence of a vacancy which is not filled by
action of the Board of Directors shall constitute a determination by the Board
of Directors that the number of directors is reduced so as to eliminate such
vacancy, unless the Board of Directors shall specify otherwise. When one or more
directors shall resign from the Board, 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. All replacement
directors shall be selected from a list of nominees provided by the shareholder
who had nominated the director being replaced.
<PAGE>
-3-
Section 2.4. Meetings of Directors. Regular meetings of the Board of Directors
---------------------
shall be held at such time and place as the Directors shall from time to time by
resolution appoint; and no notice shall be required to be given of any such
regular meeting. A special meeting of the Board of Directors may be called by
the Chairman of the Board or any director by giving ten (10) days notice to each
director by letter, telegram, telephone or other oral message. Except as
otherwise provided by these By-laws, a majority of the total number of directors
shall constitute a quorum for the transaction of business, and the vote 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.
Section 2.5. Action Without a 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 2.6. Quorum. A majority of the Board of Directors then in office
-------
shall constitute a quorum for the transaction of business.
Section 2.7. Telephone Participation in Meetings. Members of the Board of
-----------------------------------
Directors, or any committee designated by the Board, shall be entitled to
participate in a meeting of the Board of Directors or such 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.
ARTICLE III
OFFICERS
Section 3.1. Enumeration. The officers of the Corporation shall be elected or
-----------
appointed by the Board of Directors and may consist of a President, such number
of Vice Presidents (if any) as the Board of Directors shall from time to time
elect or appoint, a Secretary, a Treasurer, and such other officers (if any) as
the Board of Directors shall from time to time elect or appoint. Any two or more
offices may be held by the same person.
Section 3.2 Chairman of the Board. The Chairman of the Board, if elected or
---------------------
appointed by the Board of Directors, shall preside at meetings of the Board of
Directors. If the Chairman of the Board shall also be elected or appointed as
the chief executive officer, the Chairman of the Board shall have the powers and
perform the duties of the chief executive officer. The Chairman of the Board
shall have such other powers and perform such other duties as shall from time to
time be specified by the Board of Directors or delegated to the Chairman of the
Board by the chief executive officer of the Corporation.
Section 3.3 President. The President shall be the chief executive officer
---------
of the Corporation, unless the Chairman of the Board has been so elected under
Section 3.2, and shall have general and active charge and control over the
business and affairs of the Corporation, subject to the Board of Directors. If
there shall be no Chairman of the Board, or in his or her absence or inability
to act, the President shall preside at meetings of the Board of Directors and of
the stockholders. The President shall sign all certificates for shares of the
capital stock of the Corporation and may, together with the Secretary, execute
on behalf of the Corporation any contract which has been approved by the Board
of Directors.
Section 3.4. Executive Vice-President and Vice President. The Vice President
-------------------------------------------
(including an Executive Vice-President) or, if there shall be more than one, the
Vice Presidents (including Executive Vice-Presidents), in the order of their
seniority unless otherwise specified by the Board of Directors, shall have all
the powers and perform all of the duties of the President during the absence or
inability to act of the President. Each Vice President (including an Executive
Vice-President) shall also have such other powers and perform such other duties
as shall from time to time be prescribed by the Board of Directors or the
President.
<PAGE>
-4-
Section 3.5. Secretary. The Secretary shall record the proceedings of the
---------
meetings of the stockholders and directors in a book to be kept for that
purpose, and shall give notice as required by statute or these By-laws of all
such meetings. The Secretary shall have custody of the seal of the Corporation
and of all books, records, and papers of the Corporation, except such as shall
be in the charge of the Treasurer or of some other person authorized to have
custody and possession thereof by resolution of the Board of Directors. The
Secretary may, together with the President, execute on behalf of the Corporation
any contract which has been approved by the Board of Directors. The Secretary
shall also have such other powers and perform such other duties as are incident
to the office of the secretary of a corporation or as shall from time to time be
prescribed by, or pursuant to authority delegated by, the Board of Directors.
Section 3.6. Treasurer. The Treasurer shall keep full and accurate accounts of
---------
the receipts and disbursements of the Corporation in books belonging to the
Corporation, shall deposit all moneys and other valuable effects of the
Corporation in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors, and shall also have
such other powers and perform such other duties as are incident to the office of
the treasurer of a corporation or as shall from time to time be prescribed by,
or pursuant to authority delegated by, the Board of Directors.
Section 3.7. Other Officers. The powers and duties of each other officer who
--------------
may from time to time be elected or appointed by the Board of Directors shall be
as specified by, or pursuant to authority delegated by, the Board of Directors
at the time of the election or appointment of such other officer or from time to
time thereafter. In addition, each officer designated as an assistant officer
shall assist in the performance of the duties of the officer to which he or she
is assistant, and shall have the powers and perform the duties of such officer
during the absence or inability to act of such officer.
Section 3.8. Additional Powers and Duties. The Board of Directors may
-----------------------------
from time to time by resolution, increase or add to the powers and duties of any
of the officers of the Corporation.
Section 3.9. Term and Compensation. Officers shall be elected or appointed by
---------------------
the Board of Directors from time to time, to serve at the pleasure of the Board.
Each officer shall hold office until his or her successor is elected or
appointed and qualified, or until his or her earlier resignation or removal. Any
officer may resign at any time upon written notice to the Corporation. The
compensation of all officers shall be fixed by, or pursuant to authority
delegated by, the Board of Directors from time to time.
ARTICLE IV
INDEMNIFICATION
Section 4.1. Actions, Suits or Proceedings Other Than by or in the Right of
--------------------------------------------------------------
the Corporation. The Corporation shall indemnify any director of the Corporation
- ---------------
and may, at the option of the Board, indemnify any officer, employee or agent of
the Corporation, who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was or has agreed
to become a director, officer, employee or agent of the Corporation, as the case
may be, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, to the full
extent now or hereinafter permitted by law against costs, charges, expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with the
investigation, defense or settlement of such action, suit or proceeding and any
appeal therefrom, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
<PAGE>
-5-
of nolo contendere or its equivalent, shall not, of itself, create a presumption
---------------
that the person did not act in good faith or in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 4.2. Actions or Suits by or in the Right of the Corporation. The
------------------------------------------------------
Corporation shall indemnify any director of the Corporation and may, at the
option of the Board, indemnify any officer, employee or agent of the
Corporation, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favour by reason of the fact that he is
or was or has agreed to become a director, officer, employee or agent of the
Corporation, as the case may be, or is or was serving or has agreed to serve at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection with the
investigation, defense or settlement of such action or suit and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable in the performance of
his duty of loyalty to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
Section 4.3. Indemnification for Costs, Charges and Expenses of Successful
-------------------------------------------------------------
Party. Notwithstanding the other provisions of this Article, to the extent that
- -----
a director of the Corporation has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, in
defense of any action, suit or proceeding referred to in Sections 4.1 and 4.2 of
this Article, or in defense of any claim, issue or matter therein, he shall be
indemnified against all costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by him or on his behalf in connection
therewith. Notwithstanding the other provisions of this Article, to the extent
that an officer, employee or agent of the Corporation has been successful on the
merits or otherwise, including without limitation, the dismissal of an action
without prejudice in defense of any action, suit or proceeding referred to in
Sections 4.1 and 4.2 of this Article, or in defense of any claim, issue or
matter therein, he may, at the option of the Board, be indemnified against all
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection therewith.
Section 4.4. Advance of Costs, Charges and Expenses. Costs, charges and
--------------------------------------
expenses (including attorneys' fees) incurred by a person referred to in
Sections 4.1 and 4.2 of this Article in investigating or defending a civil or
criminal action, suit or proceeding shall, in the case of a director of the
Corporation, and may, at the option of the Board, in the case of an officer,
employee or agent of the Corporation, be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding; provided, however,
-------- -------
that the payment of such costs, charges and expenses incurred by a director or
officer in his capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article. Such costs, charges and expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board of
Directors may, in the manner set forth above, and upon approval of such
director, officer, employee or agent of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
<PAGE>
-6-
Section 4.5. Procedure for Indemnification. Any indemnification under Sections
-----------------------------
4.1, 4.2 and 4.3, or advance of costs, charges and expenses under Section 4.4 of
this Article, shall be made promptly, and in any event within 60 days, upon the
written request of the director, officer, employee or agent. The right to
indemnification or advances as granted by this Article shall be enforceable by
the director, officer, employee or agent in any court of competent jurisdiction,
if the Corporation denies such request, in whole or in part, or if no
disposition thereof is made within 60 days. Such persons' costs and expenses
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of costs, charges and
expenses under Section 4.4 of this Article where the required undertaking, if
any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in Sections 4.1 or 4.2 of this Article, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, its independent legal
counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct set
forth in Sections 4.1 or 4.2 of this Article, nor the fact that there has been
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel, and its stockholders) that the claimant has not
met such applicable standard of conduct, shall create a presumption that the
claimant has not met the applicable standard of conduct.
Section 4.6. Other Rights; Continuation of Right to Indemnification. The
------------------------------------------------------
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which a person seeking indemnification may be entitled under any
law (common or statutory), agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office or while employed by or acting
as agent for the Corporation, and shall continue as to a person who has ceased
to be a director, officer, employee or agent, and shall inure to the benefit of
the estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract between the
Corporation and each director, officer, employee or agent of the Corporation who
serves or served in such capacity at any time while this Article is in effect.
Any repeal or modification of this Article or any repeal or modification of
relevant provisions of the Delaware General Corporation Law or any other
applicable laws shall not in any way diminish any rights to indemnification of
such director, officer, employee or agent or the obligations of the Corporation
arising hereunder prior to such repeal or modification.
Section 4.7. Insurance. The Corporation may purchase and maintain insurance on
---------
behalf of any person who is or was or has agreed to become 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 or agent of another Corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him or on his behalf in 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 liability under the provisions of this
Article, provided that such insurance is available on acceptable terms, which
--------
determination shall be made by a vote of a majority of the entire Board of
Directors.
Section 4.8. Savings Clause. If this Article or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director of the Corporation, and
may, at the option of the Board, indemnify each officer, employee and agent of
the Corporation, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the full extent permitted by applicable law.
<PAGE>
-7-
ARTICLE V
SHARES OF CAPITAL STOCK
Section 5.1. Issuance of Stock. Shares of capital stock of any class now or
-----------------
hereafter authorized of the Corporation, securities convertible into or
exchangeable for such stock, or options or other rights to purchase such stock
or securities may be issued or granted in accordance with authority granted by
resolution of the Board of Directors.
Section 5.2. Stock Certificates. Certificates for shares of the capital stock
------------------
of the Corporation shall be in the form adopted by the Board of Directors, shall
be signed by any two of the Chairman, the President, the Chief Executive
Officer, the Chief Financial Officer or the Secretary, and may be sealed with
the seal of the Corporation. All such certificates shall be numbered
consecutively, and the name of the person owning the shares represented thereby,
with the number of such shares and the date of issue, shall be entered on the
books of the Corporation.
Section 5.3. Transfer of Stock. Shares of capital stock of the Corporation
-----------------
shall be transferred only on the books of the Corporation, by the holder of
record in person or by the holder's duly authorized representative, upon
surrender to the Corporation of the certificate for such shares duly endorsed
for transfer, together with such other documents (if any) as may be required
from time to time by the Board of Directors to effect such transfer.
Section 5.4. Lost, Stolen, Destroyed, or Mutilated Certificates. New stock
--------------------------------------------------
certificates may be issued to replace stock certificates alleged to have been
lost, stolen, destroyed, or mutilated, upon such terms and conditions, including
proof of loss or destruction, and the giving of a satisfactory bond of
indemnity, as the Board of Directors from time to time may determine.
Section 5.5. Regulations. The Board of Directors shall have power and
-----------
authority to make all such rules and regulations not inconsistent with these By-
laws as it may deem expedient concerning the issue, transfer, and registration
of shares of capital stock of the Corporation.
Section 5.6. Holders of Record. The Corporation shall be entitled to treat the
-----------------
holder of record of any share or shares of capital stock of the Corporation as
the holder and owner in fact thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or right, title, or interest in, such
share or shares on the part of any other person, whether or not the Corporation
shall have express or other notice thereof, except as otherwise provided by the
laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Corporate Seal. The Corporation may adopt a seal in such form
--------------
as the Board of Directors shall from time to time determine.
Section 6.2. Financial Year. The financial year of the Corporation shall
--------------
be as designated by the Board of Directors from time to time.
Section 6.3. Banking Arrangements. The banking business of the Corporation
--------------------
including, without limitation, the borrowing of money and the provision of
security therefor, shall be transacted with such banks, trust companies or other
bodies corporate or organizations as may from time to time be designated by or
under the authority of the Board of Directors. Such banking business or any part
thereof, excluding the borrowing of money and the provision of security therefor
which is reserved to the Board of Directors, shall
<PAGE>
-8-
be transacted under such agreements, instructions and delegations of powers as
the Board or the Chairman, a Vice-Chairman, the President, the Chief Executive
Officer or the Chief Financial Officer and an Executive Vice-President, the
Vice-President, Finance, the Secretary, the Treasurer or the Controller of the
Corporation may from time to time prescribe. The Chairman, a Vice-Chairman, the
President, the Chief Executive Officer or the Chief Financial Officer and an
Executive Vice-President, the Vice-President, Finance, the Secretary, the
Treasurer or the Controller of the Corporation shall have the authority to
appoint bankers, authorize facsimile signatures on cheques, and authorize
signing officers to sign, endorse or deposit cheques, bills of exchange and
similar documents and to attend to other matters related to the Corporation's
dealings with its bankers.
Section 6.4. Financial Reports. Financial statements or reports shall not be
-----------------
required to be sent to the stockholders of the Corporation, but may be so sent
in the discretion of the Board of Directors, in which event the scope of such
statements or reports shall be within the discretion of the Board of Directors,
and, unless the Board of Directors otherwise requires or prescribes, such
statements or reports shall not be required to have been examined by or to be
accompanied by an opinion of an accountant or firm of accountants.
Section 6.5. Effect of By-Laws. No provision in these By-laws shall vest any
-----------------
property right in anystockholder.
Section 6.6. Notices and Waiver of Notice.
----------------------------
(a) Whenever, under the provisions of applicable law or of the Restated
Certificate of Incorporation or of these By-laws, written notice is required to
be given to any person, it may be given to such person either personally or by
sending a copy thereof through the mail, or by telefax, telex or telegram,
postage or charges prepaid, directed to such person at his or her address as it
appears on the records of the Corporation. If the notice is sent by mail or by
telefax, telex or telegraph, it shall be deemed to have been given to the person
entitled thereto three (3) business days after being deposited in the United
States mail or on the next business day following the transmittal thereof by
telefax, telex or telegram. Such notice shall specify the place, date and hour
of the meeting and, in the case of special meeting of stockholders, the purpose
or purposes for which the meeting is called. When a meeting is adjourned to
another time or place, notice need not be given of the 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 thirty (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.
(b) Whenever notice is required to be given, under the provisions of
applicable law or under the Restated Certificate of Incorporation or these
By-laws, a written waiver of such notice, signed by the person entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to such notice. Neither the business to be transacted at nor the
purpose of any regular or special meeting of the stockholders, directors, or
members of a committee of directors, need be specified in any written waiver of
notice of such meeting. Attendance of a person at any 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 6.7. Execution of Documents. Deeds, transfers, assignments, contracts
----------------------
and all other obligations of the Corporation may be signed by any two of the
proper officers of the Corporation. In addition to the foregoing, the Board of
Directors may, at any time and from time to time, direct the manner in which and
the person or persons by whom any particular deed, transfer, assignment,
contract or other obligation or any class of deeds, transfers, assignments,
contracts or other obligations may be signed for and on behalf of the
Corporation.
<PAGE>
-9-
Section 6.8 Unanimous Stockholders Agreement. Except as prohibited by
--------------------------------
applicable law or the Restated Certificate of Incorporation, the provisions of
these By-laws shall be read in conjunction with and made subject to the
provisions of any unanimous stockholders agreement executed, from time to time,
by all of the stockholders of the Corporation, and, to the extent that the
stockholders assume, in such unanimous stockholders agreement, the powers and
duties that the Board of Directors of the Corporation would otherwise exercise,
the Board of Directors shall be relieved from performing such powers and duties
and released and discharged from any related responsibilities.
ARTICLE VII
AMENDMENTS
Except as may otherwise be provided in these By-laws, the authority to
adopt, amend or repeal these by-laws of the Corporation is expressly conferred
upon the Board of Directors, which may take such action by the affirmative vote
of a majority of the whole Board of Directors at any regular or special meeting
duly convened after notice of that purpose, subject always to the power of the
stockholders to adopt, amend or repeal these by-laws.
