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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Mark one)
[ X ] Annual Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the fiscal year ended September 27, 1997
OR
[ ] Transition Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the transition period from _______________ to
__________________________
Commission File Number 1-7352
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Data General Corporation
(Exact name of registrant as specified in its charter)
Delaware 04-2436397
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4400 Computer Drive, Westboro, Massachusetts 01580
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (508) 898-5000
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, par value $.01 New York Stock Exchange
London Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
London Stock Exchange
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(Title of each class) (Name of each
exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act: None
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No _____
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K [ ].
Aggregate market value of common stock held by non-affiliates of the
registrant, as of December 1, 1997: $894,699,992
Number of shares outstanding of each of the registrant's classes of common
stock, as of December 1, 1997:
Common Stock, par value $.01 48,691,156
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(Title of each class) (Number of shares)
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Note: Part IV, Item 14 is restated in this Form 10-K/A in order to file the
By-Laws of the Company (Exhibit 3(c)), which were inadvertently not filed
with Form 10-K.
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PART IV
Item 14. Exhibits, Financial Statement Schedule, and Reports on Form 8-K.
(a) 1 and 2. Index to financial statements and related schedule:
Page
Five-year summary of selected financial data............................... 14*
Management's discussion and analysis of financial condition and results of
operations....................................................... 15-19*
Consolidated balance sheets at September 27, 1997 and September 28, 1996.. 21*
For fiscal years ended September 27, 1997, September 28, 1996, and
September 30, 1995:
Consolidated statements of operations............................ 20*
Consolidated statements of cash flows............................ 22*
Consolidated statements of stockholders' equity.................. 23*
Notes to consolidated financial statements............................ 24-33*
Report of independent accountants.......................................... 34*
Supplemental financial information......................................... 34*
Facilities................................................................. 35*
Report of independent accountants on financial statement schedules......... 23
Financial statement schedule:
Schedule II - Valuation and qualifying accounts.................. 24
The financial statement schedule should be read in conjunction with the
financial statements in the 1997 Annual Report to Stockholders. All other
schedules have been omitted as they are not applicable, not required, or the
information is included in the consolidated financial statements or notes
thereto.
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* Page references are to the 1997 Annual Report to Stockholders. The 1997
Annual Report to Stockholders is not to be deemed filed as part of this
Report except for those parts thereof specifically incorporated by
reference into this Report.
<PAGE>
EXHIBITS
3. (a) Restated Certificate of Incorporation of the Company, as amended,
including the Company's Certificate of Designation dated October 17, 1986,
previously filed as Exhibit 3(a) to the Company's Annual Report on Form
10-K for the fiscal year ended September 27, 1986, which is incorporated
herein by reference.
(b) Amendment to Certificate of Incorporation of the Company, filed January
29, 1987, previously filed as Exhibit 3 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 28, 1987, which is incorporated
herein by reference.
(c) By-Laws of the Company, as amended.
4. (a) Rights Agreement Renewed and Restated as of October 19, 1996 between
the Company and The Bank of New York, as Rights Agent, previously filed on
June 27, 1996, as Exhibit 1 to the Company's Amendment to Registration
Statement on Form 8-A/A, which is incorporated herein by reference.
(b) Indenture, dated as of May 21, 1997, between the Company and The Bank
of New York, previously filed as Exhibit 4(d) to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 28, 1997, which is
incorporated herein by reference.
(c) Registration Rights Agreement dated as of May 15, 1997, between and
among the Company and Morgan Stanley and Co. Incorporated and Dillon, Read
& Co. Inc. previously filed as Exhibit 4(e) to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 28, 1997, which is
incorporated herein by reference.
10. (a) Restricted Stock Option Plan, Appendix A to the prospectus included in
the Company's Registration Statement on Form S-8, Registration Number
33-19759, which is incorporated herein by reference.
(b) Forms of Restricted Stock Option Agreement, previously filed as Exhibit
10(b) to the Company's Annual Report on Form 10-K for the fiscal year ended
September 29, 1990, which is incorporated herein by reference.
(c) Form of Amendment to Restricted Stock Option Agreement, previously
filed as Exhibit 10(b) to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 25, 1988, which is incorporated herein by reference.
(d) Form of Amendments to Key Executive Restricted Stock Option Agreements,
previously filed as Exhibit 10(b) to the Company's Quarterly Report on Form
10-Q for the quarter ended March 25, 1989, which is incorporated herein by
reference.
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(e) Form of Amended and Restated Restricted Stock Option Agreement, between
the Company and Ronald L. Skates, previously filed as Exhibit 10(f) to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 25,
1989, which is incorporated herein by reference.
(f) Form of Amendment to Restricted Stock Option Agreements, between the
Company and Frederick R. Adler, previously filed as Exhibit 10(g) to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 25,
1989, which is incorporated herein by reference.
(g) Amendment to Restricted and Employee Incentive Stock Option Agreements,
between the Company and Ronald L. Skates, dated November 14, 1988,
previously filed as Exhibit 10(e) to the Company's Annual Report on Form
10-K for the fiscal year ended September 24, 1988, which is incorporated
herein by reference.
(h) Forms of Incentive Stock Option Agreement, previously filed as Exhibit
10(d) to the Company's Annual Report on Form 10-K for the fiscal year ended
September 26, 1987, which is incorporated herein by reference.
(i) Form of Amendment to Employee Incentive Stock Option Agreement,
previously filed as Exhibit 10(a) to the Company's Quarterly Report on Form
10-Q for the quarter ended June 25, 1988, which is incorporated herein by
reference.
(j) Form of Amended and Restated Employee Stock Option Agreement, between
the Company and Ronald L. Skates, previously filed as Exhibit 10(e) to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 25,
1989, which is incorporated herein by reference.
(k) Form of Amendments to Key Executive Stock Option Agreements, previously
filed as Exhibit 10(c) to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 25, 1989, which is incorporated herein by
reference.
(l) Non-Employee Director Restricted Stock Option Plan, Appendix A to the
prospectus included in the Company's Registration Statement on Form S-8,
Registration Number 2-91481, which is incorporated herein by reference.
(m) Form of Non-Employee Director Restricted Stock Option Agreement,
previously filed as Exhibit 10(n) to the Company's Annual Report on Form
10-K for the fiscal year ended September 29, 1990, which is incorporated
herein by reference.
(n) Form of Employment Agreements between the Company and its full-time
officers, previously filed as Exhibit 10(a) to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 25, 1989, which is
incorporated herein by reference.
(o) Form of Amendment dated September 1, 1993, to various Employment
Agreements between the Company and its full-time officers, previously filed
as Exhibit 10(u) to the Company's Annual Report on Form 10-K for the fiscal
year ended September 25, 1993, which is incorporated herein by reference.
<PAGE>
(p) Form of Indemnity Agreement between the Company and its officers and
directors, previously filed as Exhibit 10 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 28, 1987, which is incorporated
herein by reference.
(q) Data General Corporation Supplemental Retirement Benefit Plan dated as
of October 1, 1989, between the Company and its highly compensated
employees, previously filed as Exhibit 10(x) to the Company's Annual Report
on Form 10-K for the fiscal year ended September 24, 1994, which is
incorporated herein by reference.
(r) Form of Supplemental Pension and Retiree Medical Agreement dated as of
December 7, 1994, between the Company and its current President and Chief
Executive Officer, previously filed as Exhibit 10(y) to the Company's
Annual Report on Form 10-K for the fiscal year ended September 24, 1994,
which is incorporated herein by reference.
(s) 1994 Non-Employee Director Stock Option Plan, Appendix A to the
prospectus included in the Company's Registration Statement on Form S-8,
Registration Number 33-53039, which is incorporated herein by reference.
(t) Form of 1994 Non-Employee Director Stock Option Agreement, previously
filed as Exhibit 10(bb) to the Company's Annual Report on Form 10-K for the
fiscal year ended September 24, 1994, which is incorporated herein by
reference.
(u) Form of Letter of Credit and Reimbursement Agreement dated as of
December 21, 1994, previously filed as Exhibit 10 to the Company's
Quarterly Report on Form 10-Q for the quarter ended December 24, 1994,
which is incorporated herein by reference.
(v) Employee Qualified Stock Purchase Plan, previously filed as Exhibit 4.1
to the Company's Registration Statement on Form S-8, Registration Number
333-31159, which is incorporated herein by reference.
(w) Employee Stock Option Plan, Appendix A to the prospectus included in
the Company's Registration Statement on Form S-8, Registration Number
33-58237, which is incorporated herein by reference.
(x) Amendment dated October 9, 1995 to Letter of Credit and Reimbursement
Agreement, changing the Consolidated Tangible Net Worth limitation,
previously filed as Exhibit 10(dd) to the Company's Annual Report on Form
10-K for the fiscal year ended September 30, 1995, which is incorporated
herein by reference.
(y) Amendment dated December 10, 1995 to Letter of Credit and Reimbursement
Agreement, previously filed as Exhibit 10(z) to the Company's Annual Report
on Form 10-K for the fiscal year ended September 28, 1996, which is
incorporated herein by reference.
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(z) Summary of 1997 Fiscal Year Bonus Opportunity for Chief Executive
Officer, previously filed as Exhibit 10(aa) to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 28, 1996, which is
incorporated herein by reference.
(aa) Amendment dated December 11, 1996 to Letter of Credit and
Reimbursement Agreement, previously filed as Exhibit 10(bb) to the
Company's Quarterly Report on Form 10-Q for the quarter ended December 28,
1996, which is incorporated herein by reference.
(bb) Amendment dated April 18, 1997 to Letter of Credit and Reimbursement
Agreement, previously filed as Exhibit 10(cc) to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 29, 1997, which is
incorporated herein by reference.
(cc) Amendment dated May 19, 1997 to Letter of Credit and Reimbursement
Agreement, previously filed as Exhibit 10(dd) to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 28, 1997, which is
incorporated herein by reference.
(dd) Stock Compensation Plan for Non-Employee Directors, previously filed as
Exhibit 4.2 to the Company's Registration Statement on Form S-8,
Registration Number 333-31159, which is incorporated herein by reference.
(ee) Credit agreement dated September 30, 1997 between the Company and
NationsBank of Texas, N.A.
(ff) 1997 Non-Officer Employee Stock Option Plan.
(gg) Form of 1997 Non-Officer Employee Stock Option Plan Agreement.
11. Computation of primary and fully diluted earnings per share.
13. Annual report to stockholders for the fiscal year ended September 27, 1997,
certain portions of which have been incorporated herein by reference.
21. Subsidiaries of the registrant.
23. Consent of independent accountants.
Exhibits, other than those incorporated by reference, have been
included in copies of this Report filed with the Securities and Exchange
Commission. Stockholders of the Company will be provided with copies of these
exhibits upon written request to the Company.
<PAGE>
(b) Reports on Form 8-K
The Company filed a report on Form 8-K on May 15, 1997, which included
a copy of a press release regarding the sale of $212.8 million of 6% Convertible
Subordinated Notes due 2004 and the retirement of $23 million of 8 3/8% Sinking
Fund Debentures due 2002.
The Company filed a report on Form 8-K on July 21, 1997, which included
a copy of a press release regarding the retirement of $125 million of 7 3/4%
Convertible Subordinated Debentures due 2001.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
DATA GENERAL CORPORATION
(Registrant)
By:/s/ Arthur W. DeMelle
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Arthur W. DeMelle
Senior Vice President
and Chief Financial Officer
April 21, 1998
EXHIBIT 3 (c)
DATA GENERAL CORPORATION
BY-LAWS*
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ARTICLE I
OFFICES
SECTION 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
SECTION 2. 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. All meetings of the stockholders for the election
of directors shall be held in the City of New York, State of New York, at such
place as may be fixed from time to time by the board of directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual meetings of stockholders, commencing with
the year 1985, shall be held on the last Wednesday in January if not a legal
holiday, and if a legal holiday, then on the next secular day following, at
11:00 A.M., or at such other date and time as shall be designated from time to
time by the board of directors and stated in the notice of the meeting, at which
they shall elect by a plurality vote by
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*As restated through November 5, 1997
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written ballot a board of directors, and transact such other business as may
properly be brought before the meeting.
SECTION 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
SECTION 4. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, 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 the 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 may be present.
SECTION 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be so called by the president and shall be
called by the president or secretary at the request in writing of a majority of
the board of directors, or the request in writing of stockholders owning at
least two-thirds in amount of the entire capital stock of the Corporation issued
and outstanding and entitled to vote generally in the election of directors.
Such request shall state the purpose or purposes of the proposed meeting.
SECTION 6. Written notice of a special meeting, stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called,
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shall be given not less than ten nor more than fifty days before the date of the
meeting to each stockholder entitled to vote at such meeting.
SECTION 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
SECTION 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes or
of the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
SECTION 10. Each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock
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having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
SECTION 11. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any
corporate action, by any provision of the statutes, the meeting and vote of
stockholders may be dispensed with if all of the stockholders who would have
been entitled to vote upon the action if such meeting were held shall consent in
writing to such corporate action being taken; or if the certificate of
incorporation authorizes the action to be taken with the written consent of the
holders of less than all of the stock who would have been entitled to vote upon
the action if a meeting were held, then on the written consent of the
stockholders having not less than such percentage of the total number of votes
as may be authorized in the certificate of incorporation; provided that in no
case shall the written consent be by the holders of stock having less than the
minimum percentage of the total vote required by statute for the proposed
corporate action, and provided that prompt notice must be given to all
stockholders of the taking of corporate action without a meeting and by less
than unanimous written consent.
SECTION 12. (a) Nominations of persons for election to the
board of directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders
(i) pursuant to the Corporation's notice of meeting delivered pursuant to
Section 3 of this Article 12, (ii) by or at the direction of the chairman of the
board of directors or (iii) by any stockholder of the Corporation who is
entitled to vote at the meeting, who complied with the notice procedures set
forth in paragraphs (b) and (c) of this Section 12 and who was a stockholder of
record at the time such notice is delivered to the secretary of the Corporation.
(b) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of paragraph
(a) of this by-law, the stockholder must have given timely notice thereof in
writing to the secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the
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secretary at the principal executive offices of the Corporation not less than
sixty days nor more than ninety days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than twenty days, or delayed by
more than sixty days, from such anniversary date, notice by the stockholder to
be timely must be so delivered not earlier than the ninetieth day prior to such
annual meeting and not later than the close of business on the later of the
sixtieth day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first made. In lieu of
delivery to the secretary of the Corporation, notice may be mailed to the
secretary of the Corporation by certified mail, return receipt requested, but
shall be deemed to have been given only upon actual receipt by the secretary of
the Corporation. Such stockholder's notice shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; (ii) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (A) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (B) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
(c) Notwithstanding anything in the second sentence of
paragraph (b) of this by-law to the contrary, in the event that the number of
directors to be elected to the board of directors of the Corporation is
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the
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increased board of directors made by the Corporation at least seventy days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by the by-law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the
day on which such public announcement is first made by the Corporation.
SECTION 13. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant
to the Corporation's notice of meeting pursuant to Section 5 of this Article 12.
Nominations of persons for election to the board of directors may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (a) by or at the direction of the board of
directors or (b) by any stockholder of the Corporation who is entitled to vote
at the meeting, who complies with the notice procedures set forth in this by-law
and who is a stockholder of record at the time such notice is delivered to the
secretary of the Corporation. Nominations by stockholders of persons for
election to the board of directors may be made at such a special meeting of
stockholders if the stockholder's notice as required by Section 12(b) of these
by-laws shall be delivered to the secretary at the principal executive offices
of the Corporation not earlier than the ninetieth day prior to such special
meeting and not later than the close of business on the later of the sixtieth
day prior to such special meeting or the tenth day following the day on which
public announcement is first made of the date of the special meeting and of the
nominees proposed by the board of directors to be elected at such meeting.
SECTION 14. (a) Only persons who are nominated in accordance
with the procedures set forth in these by-laws shall be eligible to serve as
director and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in these by-laws. Except as otherwise provided by law, the Certificate
of Incorporation or these
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by-laws, the chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made in accordance with the procedures set forth in these by-laws and, if
any proposed nomination or business is not in compliance with these by-laws, to
declare that such defective proposal or nomination shall be disregarded.
(b) For purposes of these by-laws, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(c) Notwithstanding the foregoing provisions of this by-law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in these by-laws. Nothing in these by-laws shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 15. (a) The board of directors by resolution shall
appoint one or more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives of the
Corporation, to act at the meeting and make a written report thereof. One or
more persons may be designated as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate has been appointed to act, or if
all inspectors or alternates who have been appointed are unable to act, at a
meeting of stockholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by the General
Corporation Law of the State of Delaware.
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(b) The chairman of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting.
ARTICLE III
DIRECTORS
SECTION 1. The number of directors which shall constitute the
whole board shall be not less than three nor more than fifteen. Within the
limits above specified, the number of directors shall be determined by
resolution of the board of directors or by the stockholders at the annual
meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
SECTION 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the same manner provided by statute. If, at
the time of filling any vacancy or newly created directorship, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
of the total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
SECTION 3. The business of the Corporation shall be managed by
its board of directors which may exercise all such powers of the Corporation and
do all such
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lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4. The board of directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
SECTION 5. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
SECTION 6. Regular meetings of the board of directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board.
SECTION 7. Special meetings of the board may be called by the
president on three days' notice to each director, either personally or by mail
or by telegram; special meetings shall be called by the president or secretary
in like manner and on like notice on the written request of two directors.
SECTION 8. At all meetings of the board a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or
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by the certificate of incorporation. If a quorum shall not be present at any
meeting of the board of directors the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board 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.
COMMITTEES OF DIRECTORS
SECTION 10. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the resolution, shall
have and may exercise the powers 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; provided, however,
that in the absence or disqualification of any member of such 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. Such committee
or committees shall have such name or names as may be determined from time to
time by resolution adopted by the board of directors.
SECTION 11. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
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COMPENSATION OF DIRECTORS
SECTION 12. The directors may be paid their expenses, if any,
of attendance at each meeting of the board of directors and may be paid a fixed
sum for attendance at each meeting of the board of directors or a stated salary
as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
SECTION 1. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these by-laws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
SECTION 2. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
SECTION 1. The officers of the Corporation shall be a chairman
of the board of directors, a vice-chairman of the board, a chairman of the
executive committee of the board, a president, a vice-president, a secretary and
a treasurer. The board of directors may also choose additional vice-presidents,
and one or more
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assistant secretaries and assistant treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
SECTION 2. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a chairman of the board, a
vice-chairman, a chairman of the executive committee of the board, a president,
one or more vice-presidents, a secretary and a treasurer.
SECTION 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board. The president may appoint one or more
assistant vice-presidents and one or more other officers to act under the
supervision of officers elected or appointed by the board, each of whom shall
hold their positions for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the president.
SECTION 4. The salaries of all officers and agents of the
Corporation shall be fixed by the board of directors.
SECTION 5. The officers of the Corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of the
Corporation shall be filled by the board of directors.
THE CHAIRMAN OF THE BOARD
SECTION 6. The chairman of the board of directors shall be a
member of the board and shall preside at all meetings of the board of directors.
He shall have
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such other powers and perform such other duties as are provided in these
by-laws, and, in addition thereto, as the board of directors may from time to
time determine.
THE VICE-CHAIRMAN OF THE BOARD
SECTION 7. The vice-chairman of the board shall be a member of
the board and shall perform the duties of the chairman in his absence or in the
event of his inability or refusal to act, and, when so acting, he shall have all
the powers of the chairman. He shall have such other powers and perform such
other duties as are provided in these by-laws, and, in addition thereto, as the
board of directors may from time to time determine.
THE CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE BOARD
SECTION 8. The chairman of the executive committee of the
board of directors shall preside at all meetings of the executive committee of
the board of directors. He shall have such other powers and perform such other
duties as are provided in these by-laws and, in addition thereto, as the board
of directors may from time to time determine.
THE PRESIDENT
SECTION 9. The president shall be the chief executive officer
of the Corporation and shall have general and active management of the business
of the Corporation and shall see that all orders and resolutions of the board of
directors are carried into effect. The president shall preside at all meetings
of the stockholders. He shall have such other powers and perform such other
duties as are provided in these by-laws and, in addition thereto, as the board
of directors may from time to time determine.
SECTION 10. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and
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execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the Corporation.
THE VICE-PRESIDENTS
SECTION 11. In the absence of the president or in the event of
his inability or refusal to act, the vice-president (or in the event there be
more than one vice-president, the vice-presidents in the order designated, or in
the absence of any designation, then in the order of their election) shall have
all the powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
SECTION 12. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the Corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and, when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
SECTION 13. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the
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duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
THE TREASURER AND ASSISTANT TREASURER
SECTION 14. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the board of
directors.
SECTION 15. He shall disburse the funds of the Corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
Corporation.
SECTION 16. If required by the board of directors, he shall
give the Corporation a bond (which shall be renewed every six years) in such sum
and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 17. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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ARTICLE VI
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify any person 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 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding 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 of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which 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 reasonable cause to believe that his conduct was unlawful.
SECTION 2. The Corporation shall indemnify any person 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 favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably
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believed to be in or not opposed to the best interests of the Corporation and
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 to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
SECTION 3. To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 1 or 2 of this
Article VI or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
SECTION 4. Any indemnification under Section 1 or 2 of this
Article VI (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 1 or 2 of this
Article VI. Such determination shall be made (a) by the Board of Directors of
the Corporation by a majority vote of the directors who were not parties to such
action, suit or proceedings; (b) by a committee of such disinterested directors
designated by majority vote of such disinterested directors, even though less
than a quorum; (c) if there are no disinterested directors, or if such
disinterested directors so direct, by independent legal counsel in a written
opinion; or (d) by the stockholders.
SECTION 5. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of
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the director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article.
SECTION 6. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other sections of this Article shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any by-law,
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 such office.
SECTION 7. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving, at the request of
the Corporation, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him 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.
SECTION 8. For purposes of Article VI, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
Article VI.
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SECTION 9. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE VII
CERTIFICATES OF STOCK
SECTION 1. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation by,
the president or a vice-president and the treasurer or an assistant treasurer,
or the secretary or an assistant secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided in section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 2. Where a certificate is countersigned (1) by a
transfer agent other than the Corporation or its employee, or (2) by a registrar
other than the Corporation or its employee, the signatures of the officers of
the Corporation may be
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facsimiles. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
LOST CERTIFICATES
SECTION 3. The board of directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
SECTION 4. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
FIXING RECORD DATE
SECTION 5. 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
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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 not be 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.
REGISTERED STOCKHOLDERS
SECTION 6. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
SECTION 1. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
SECTION 2. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining
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any property of the Corporation, or for such other purpose as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
ANNUAL STATEMENT
SECTION 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the Corporation.
CHECKS
SECTION 4. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
SECTION 5. The fiscal year of the Corporation shall be fixed
by resolution of the board of directors.
SEAL
SECTION 6. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
SECTION 1. These by-laws may be altered, amended or repealed,
or new by-laws may be adopted by the stockholders or by the board of directors,
when such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at the special
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meeting of the stockholders or of the board of directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in the
notice of such special meeting.
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