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) May 13, 1999
Lone Star Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-2333 13-0982660
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
300 First Stamford Place, P. O. Box 120014, Stamford, CT 06912-0014
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (203) 969-8600
ITEM 5. OTHER EVENTS.
At the Company's annual meeting held on May 13, 1999, its
stockholders approved an amendment to the Company's certificate
of incorporation increasing the authorized shares of Common
Stock from 50,000,000 to 75,000,000. A copy of the amendment is
attached hereto as Exhibit A.
Also on May 13, 1999, the Company's Board of Directors
amended and restated the Company's By-laws to, among other
things, change the procedures for stockholder nominations and
proposals of business at annual and special meetings, establish
procedures for fixing record dates for stockholder action by
written consent and provide for a 66 2/3% vote for certain
amendments to the By-laws by stockholders. Under the Amended
and Restated By-laws, stockholder proposals for the Company's
Annual Meeting to be held in the year 2000 will be considered
untimely unless provided to the Company, in the manner provided
in the By-laws, not later than the close of business on February
11, 2000 and not earlier than the close of business on January
14, 2000. In order for stockholder proposals to be timely for
inclusion in the Company's proxy statement pursuant to Rule 14a-
8 under the Securities Exchange Act of 1934, as amended, such
proposals must also be received by the Company not later than
the close of business on November 30, 1999. A copy of the
Amended and Restated By-laws is attached hereto as Exhibit B.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, Lone Star Industries, Inc. has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
LONE STAR INDUSTRIES, INC.
By: /s/ James W. Langham
James W. Langham
Vice President
Date: May 13, 1999
EXHIBIT A
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
Lone Star Industries, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State
of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the
Corporation resolutions were duly adopted setting forth a
proposed amendment to Article FOURTH of the Restated Certificate
of Incorporation of the Corporation, declaring said amendment to
be advisable and directing that the amendment proposed be
considered at the next annual meeting of the stockholders. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board of Directors
declares it advisable and recommends to the
stockholders that at the 1999 Annual Meeting
of Stockholders Article FOURTH of the
Restated Certificate of Incorporation of the
Company be amended to be and to read as
follows:
"FOURTH: The corporation shall have
authority to issue Seventy-Five Million
(75,000,000) shares of common stock, par
value one dollar ($1.00) per share."
SECOND: That thereafter, pursuant to resolutions of its
Board of Directors, an annual meeting of the stockholders of the
Corporation was duly called and held, upon notice in accordance
with Section 222 of the General Corporation Law of the State of
Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the proposed amendment.
THIRD: That the proposed amendment was duly adopted in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment of the Restated Certificate of
Incorporation to be signed by James W. Langham, its Vice
President, General Counsel and Secretary this 13th day of May,
1999.
By: /s/James W. Langham
James W. Langham
Vice President, General
Counsel and Secretary
EXHIBIT B
AMENDED AND RESTATED
BY-LAWS
OF
LONE STAR INDUSTRIES, INC.
ARTICLE I
Offices.
Section 1. Principal Office. The principal office of the
Corporation in the State of Delaware shall be in the City of
Wilmington, County of New Castle, and its resident agent shall
be The Corporation Trust Company.
Section 2. Other Offices. The Corporation may have
offices at any other place or places, as from time to time the
Board of Directors may determine or the business of the
Corporation may require.
ARTICLE II.
Meetings of Stockholders.
Section 1. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the
transaction of such other business as may come before the
meeting shall be held on such date as may be fixed by the Board
of Directors and specified in the notice thereof.
Section 2. Special Meetings. Special meetings of the
stockholders for any purpose or purposes, unless otherwise
prescribed by statute, may be called at any time by the Chairman
of the Board or by the Board of Directors. At any such special
meeting of the stockholders, only such business shall be
conducted as shall have been specified in the notice of meeting
(or any supplement thereto).
Section 3. Place of Meeting. Each meeting of stockholders
of the Corporation shall be held at the place, within or without
the State of Delaware, and at the hour specified in the notice
or waiver of notice of the meeting.
Section 4. Notice of Meetings. Except as otherwise
provided by law, notice of each meeting of the stockholders
shall be given to each stockholder of record entitled to vote at
such meeting, not less than ten nor more than sixty days before
the day on which the meeting is to be held. Notice may be given
by delivering a written or printed notice thereof to a
stockholder personally, or by mailing such notice in a postage
prepaid envelope addressed to a stockholder at his or address
appearing in the records of the Corporation or by transmitting
notice thereof to a stockholder at such address by telegraph,
cable, wireless or other legally permitted form of
communication. Except where expressly required by law, no
publication of any notice of a meeting of stockholders shall be
required. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who attends such meeting
in person or by proxy without protesting at the beginning of the
meeting that the meeting is not lawfully called or convened or
who in person or by attorney duly authorized to do so waives
such notice in writing or by telegraph, cable, wireless or other
legally permitted form of communication, either before or after
such meeting. Notice of any adjourned meeting of the
stockholders shall not be required to be given, except where
expressly required by law.
Section 5. Quorum. At each meeting of the stockholders,
except where other provision is made by law, presence in person
or by proxy of the holders of a majority of the issued and
outstanding stock of the Corporation entitled to vote at the
meeting constitutes a quorum for the transaction of business.
In the absence of a quorum, a majority in voting interest of the
stockholders of the Corporation present in person or by proxy
and entitled to vote, or, in the absence of all the stockholders
entitled to vote, any officer entitled to preside at, or act as
secretary of, such meeting shall have the power to adjourn the
meeting from time to time, until stockholders holding the
requisite amount of stock shall be present or represented. At
any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at
the meeting as originally called. No notice of an adjourned
meeting need be given if the time and place are announced at the
meeting at which the adjournment is taken unless the adjournment
is for more than 30 days or a new record date is fixed for the
meeting.
Section 6. Organization. At each meeting of the
stockholders, the Chairman of the Board, or if he or she is
absent, such person as may be designated by the Board of
Directors, or if such person is absent, another officer of the
Corporation chosen as chairman of such meeting by a majority in
voting interest of the stockholders present in person or by
proxy and entitled to vote at the meeting, or if all the
officers of the Corporation are absent, a stockholder holding of
record shares of stock of the Corporation so chosen, shall act
as chairman of the meeting and preside at it. The Secretary, or
if he or she is absent from such meeting or is required pursuant
to the provisions of this Section 6 to act as chairman of such
meeting, the person (who shall be an Assistant Secretary, if an
Assistant Secretary is present at the meeting) whom the chairman
of the meeting shall appoint, shall act as secretary of the
meeting and keep the minutes of it.
Section 7. Conduct of 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 shall be announced at
the meeting by the person presiding over the meeting. The Board
of Directors may adopt by resolution such rules, regulations and
procedures for the conduct of the meeting of stockholders as it
shall deem appropriate. Except to the extent inconsistent with
such rules and regulations as adopted by the Board of Directors,
the chairman of any meeting of stockholders shall have the right
and authority to convene and to adjourn the meeting, to
prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate
for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without
limitation, the following (i) the establishment of an agenda or
order of business for the meeting; (ii) rules, regulations and
procedures for maintaining order at the meeting and the safety
of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or
such other persons as the chairman of the meeting shall
determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on
the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not
be required to be held in accordance with the rules of
parliamentary procedure.
Section 8. Voting. Except as otherwise provided by
applicable law or in the Certificate of Incorporation, each
stockholder shall, at each meeting of the stockholders, be
entitled to one vote in person or by proxy for each share of
stock of the Corporation held by him or her and registered in
his or her name on the books of the Corporation on the date
fixed pursuant to the provisions of Section 7 of Article VII of
these By-laws as the record date for the determination of
stockholders who shall be entitled to notice of and to vote at
such meeting. Each stockholder entitled to vote shall be
entitled to vote in person or by proxy; however, no proxy shall
be voted or acted upon after three (3) years from its date,
unless the proxy shall provide for a longer period. At all
meetings of the stockholders all matters, except where other
provision is made by law, by the Certificate of Incorporation of
the Corporation, by these By-laws or by the rules or regulations
of any stock exchange applicable to the Corporation, shall be
decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote,
as long as a quorum is present. Unless demanded by a
stockholder of the Corporation present in person or by proxy at
any meeting of the stockholders and entitled to vote thereat or
so directed by the chairman of the meeting, the vote on any
questions need not be by ballot. Upon a demand of any
stockholder for a vote by ballot on any question or at the
direction of the chairman that a vote by ballot be taken on any
question, such vote shall be taken. On a vote by ballot each
ballot shall be signed by the stockholder voting, or by his or
her proxy, if there be such proxy, and shall state the number of
shares voted.
Section 9. List of Stockholders. It shall be the duty of
the Secretary or other officer of the Corporation who shall have
charge of its stock ledger, either directly or through another
officer of the Corporation designated by him or her or through a
transfer agent appointed by the Board of Directors, to prepare
and make, at least ten (10) days before every meeting of the
stockholders, a complete list of the stockholders entitled to
vote at the meeting arranged in alphabetical order, and showing
the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to said meeting, either
at a place within the city where said meeting is to be held,
which place shall be specified in the notice of said meeting,
or, if not so specified, at the place where said meeting is to
be held. The list shall also be produced and kept at the time
and place of said meeting during the whole meeting, and may be
inspected by any stockholder who is present. The stock ledger
shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, such list or the books of
the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
Section 10. Inspectors of Votes. At each meeting of the
stockholders the chairman of such meeting may appoint two
Inspectors of Votes to act at it. Each appointed Inspector of
Votes shall first subscribe to an oath or affirmation faithfully
to execute the duties of an Inspector of Votes at the meeting
with strict impartiality and according to the best of his or her
ability. The Inspector of Votes, if any, shall take charge of
the ballots at the meeting and after the balloting on any
question shall count the ballots cast and shall make a report in
writing to the secretary of the meeting of the results of the
vote. An Inspector of Votes need not be a stockholder of the
Corporation, and any officer of the Corporation may be an
Inspector of Votes on any question other than a vote for or
against his or her election to any position within the
Corporation or any other question in which he or she may be
directly interested.
Section 11. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) 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 the stockholders only (a)
pursuant to the Corporation's notice of meeting (or any
supplement thereto), (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a
stockholder of record of the Corporation at the time the notice
provided for in this Section 11 is delivered to the Secretary of
the Corporation, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 11.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to
clause (c) of paragraph (A)(1) of this Section 11, the
stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation and any such proposed business
other than the nominations of persons for election to the Board
of Directors must constitute a proper matter for stockholder
action. To be timely, a stockholder's notice shall be delivered
to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the ninetieth
day nor earlier than the close of business on the one hundred
twentieth day 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 more than thirty days before or
more than seventy days after such anniversary date, notice by the
stockholder must be so delivered not earlier than the close of
business on the one hundred twentieth day prior to such annual
meeting and not later than the close of business on the later of
the ninetieth 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 by the Corporation). In no event
shall the public announcement of an adjournment or postponement
of an annual meeting commence a new time period (or extend any
time period) for the giving of a stockholder's notice as
described above. Such stockholder's notice shall set forth: (a)
as to each person whom the stockholder proposes to nominate for
election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
and Rule 14a-11 thereunder (and such person's written consent to
being named in the proxy statement as a nominee and to serving as
director if elected); (b) 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 text of the proposal or business (including the text
of any resolutions proposed for consideration and in the event
that such business includes a proposal to amend the By-laws of
the Corporation, the language of the proposed amendment), 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 (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of capital stock of
the Corporation which are owned beneficially and of record by
such stockholder and such beneficial owner, (iii) a
representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose
such business and nomination, and (iv) a representation whether
the stockholder or the beneficial owner, if any, intends or is
part of a group which intends (a) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the
Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise to
solicit proxies from stockholders in support of such proposal or
nomination. The Corporation may require any proposed nominee to
furnish such other information as it may reasonably require to
determine the eligibility of such proposed nominee to serve as a
director of the Corporation.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 11 to the contrary, in the event
that the number of directors to be elected to the Board of
Directors of the Corporation at an annual meeting is increased
and there is no public announcement by the Corporation naming the
nominees for the additional directorships at least one hundred
days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this Section
11 shall also be considered timely, but only with respect to
nominees for the additional directorships, 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.
(B) Special Meeting of Stockholders. 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. 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 (1) by or at the
direction of the Board of Directors or (2) provided that the
Board of Directors has determined that directors shall be elected
at such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time the notice provided for in this
Section 11 is delivered to the Secretary of the Corporation, who
is entitled to vote at the meeting and upon such election and who
complies with the notice procedures set forth in this Section 11.
In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to
the Board of Directors, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as
the case may be) for election to such position(s) as specified in
the Corporation's notice of meeting, if the stockholder's notice
required by paragraph (A)(2) of this Section 11 shall be
delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the one
hundred twentieth day prior to such special meeting and not later
than the close of business on the later of the ninetieth 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. In no event shall the
public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described
above.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 11 shall
be eligible to be elected at an annual or special meeting of
stockholders of the Corporation to serve as directors 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 this Section 11. Except as otherwise
provided by law, the chairman of the meeting shall have the power
and duty (a) to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with the procedures set forth
in this Section 11 (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination or
proposal is made solicited (or is part of a group which is
solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's nominee or proposal in compliance
with such stockholder's representation as required by clause
(A)(2)(c)(iv) of this Section 11) and (b) if any proposed
nomination or business was not made or proposed in compliance
with this Section 11, to declare that such nomination shall be
disregarded or that such proposed business shall not be
transacted.
(2) For purposes of this Section 11, "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.
(3) Notwithstanding the foregoing provisions of this
Section 11, 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 this Section
11. Nothing in this Section 11 shall be deemed to affect any
rights (a) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act or (b) the holders of any series of Preferred
Stock to elect directors pursuant to any applicable provisions of
the Certificate of Incorporation.
ARTICLE III.
Board of Directors.
Section 1. General Powers. The property, business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
Section 2. Number, Qualification and Term of Office.
Subject to the requirements of the laws of the State of Delaware
and of the Certificate of Incorporation of the Corporation, the
number of directors, which shall be not less than three nor more
than nine directors, shall be determined from time to time by
the Board of Directors of the Corporation. Directors need not
be stockholders. Directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one third of the total
number of directors constituting the entire Board of Directors.
At each Annual Meeting of Stockholders, successors to the class
of directors whose terms expire at that Annual Meeting shall be
elected for a three year term. If the number of directors is
changed, an increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class
as nearly equal as possible, but in no case shall a decrease in
the number of directors shorten the term of any incumbent
director. A director shall hold office until the Annual Meeting
of Stockholders for the year in which his or her term expires
and until his or her successor is elected and qualified,
subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
Section 3. Election of Directors. At each meeting of the
stockholders for the election of directors, the persons
receiving the greatest number of votes, up to the number of
directors to be elected, shall be the directors.
Section 4. Resignations. Any director may resign at any
time by giving written notice of resignation to the Corporation.
The resignation shall take effect at the time specified, or, if
the time when it becomes effective is not specified, then it
shall take effect immediately upon its receipt by the Secretary.
Unless otherwise specified in the resignation, acceptance is not
necessary to make it effective.
Section 5. Removal of Directors. Any vacancy in the Board
of Directors caused by the removal of a director shall only be
filled by the Board of Directors as provided in Section 6 of
this Article III. The term of a director elected to fill a
vacancy caused by the removal of a director shall expire at the
same time as the term of the other directors of the class in
which the vacancy occurred.
Section 6. Vacancies, etc. If there is a vacancy in the
Board of Directors caused by the death, resignation,
disqualification or removal of a director, or by an increase in
the number of directors, the vacancy shall only be filled by a
majority of the directors then in office, although less than a
quorum, or by a sole remaining director. The term of any
director so elected by the Board of Directors shall expire at
the same time as the term of the other directors of the class
for which the new directorship is created or in which the
vacancy occurred.
Section 7. Place of Meeting, etc. The Board of Directors
may hold its meeting at any place within or without the State of
Delaware as it may determine.
Section 8. Organization Meeting. After each annual
meeting of stockholders at which directors are elected, and on
the same day, the Board of Directors shall meet for the purpose
of organization and the transaction of other business at the
place where the annual meeting of the stockholders is held.
Notice of the meeting need not be given. The meeting may be
held at any other time or place designated in a notice given as
hereinafter provided for special meetings of the Board of
Directors or in a consent and waiver of notice of meeting signed
by all the directors.
Section 9. Regular Meetings. Regular meetings of the
Board of Directors shall be held at such times as the Board of
Directors shall determine. If the day fixed for the regular
meeting is a legal holiday where the meeting is to be held, then
the meeting shall be held at the same hour on the next
succeeding business day. Except as otherwise provided by law,
notices of regular meetings need not be given.
Section 10. Special Meetings; Notice. Special meetings of
the Board of Directors shall be held whenever called by the
Chairman of the Board, the Secretary, or a majority of the
directors in office. Notice of each such meeting shall be
mailed, addressed to each director at the director's residence
or usual place of business, at least two (2) days before the day
on which such meeting is to be held or shall be sent to the
director at the director's residence or usual place of business
by telegraph, cable, wireless or other legally permitted form of
communication (including, without limitation, by personal
delivery or by telephone) not later than the day before the day
on which the special meeting is to be held. Each notice shall
state the time and place of the meeting but need not state the
purpose thereof, except as otherwise herein expressly provided.
Notice of any meeting of the Board of Directors need not,
however, be given to any director, if the director waives notice
before or after the meeting in writing or by telegraph, cable,
wireless or other legally permitted form of communication
(including, without limitation, by personal delivery or
telephone), or if the director is present at such meeting except
if the director attends the 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 11. Quorum and Manner of Acting. Except as
otherwise provided by statute or by these By-laws, one-third of
the total number of directors constituting the whole Board (but
not less than two) shall be required to constitute a quorum for
the transaction of business at any meeting, and the act of a
majority of the directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors.
Members of the Board of Directors, or any committee designated
by the Board may participate in a meeting of the Board or such
committee by means of conference telephone or other similar
communications equipment by means of which all persons
participating can hear each other and participation in a meeting
pursuant to this provision shall constitute presence in person
at such meeting. In the absence of a quorum, a majority of the
directors present may adjourn any meeting until a quorum is
present. Notice of any adjourned meeting need not be given.
Section 12. Action by Consent. Unless otherwise
restricted by the Certificate of Incorporation or these By-laws,
any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if all
members of the Board of Directors consent thereto in writing,
and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
Section 13. Remuneration. Unless otherwise expressly
provided by resolution adopted by the Board of Directors, none
of the directors shall, as such, receive any stated remuneration
for his or her service; but the Board of Directors may at any
time or from time to time by resolution provide that
consideration shall be paid to any director of the Corporation,
either as his or her annual remuneration as such director or
member of any committee of the Board of Directors and may, in
addition, provide for remuneration for his or her attendance at
each meeting of the Board of Directors or any such committee.
The Board of Directors may also provide that the Corporation
shall reimburse each director for any expenses paid by him or
her on account of his or her attendance at any meeting. Nothing
in this Section shall be construed to preclude any director from
serving the Corporation or its affiliates in any other capacity
and receiving remuneration therefor.
ARTICLE IV.
Committees.
Section 1. Standing Committees; How Constituted and
Powers. The Board of Directors, in its discretion, may
designate an Executive Committee, an Audit Committee and a
Compensation Committee, consisting of two or more of the
Directors. The members of all Committees shall serve at the
pleasure of the Board and may be removed at any time, with or
without cause.
Section 2.
(a) The Executive Committee. Except as provided in this
Section 2(a) below or pursuant to applicable law, the Executive
Committee shall have and may exercise, when the Board is not in
session, all the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and
shall have the power to authorize the seal of the Corporation to
be affixed to all papers which may require it. The Executive
Committee shall have the power and authority to declare a
dividend and authorize the issuance of stock. The Executive
Committee shall not have the power (1) to fill vacancies on the
Board of Directors or the Executive Committee; or (2) to make or
amend or repeal By-laws of the Corporation; or (3) to change the
dividend policy of the Corporation to increase, decrease, or
omit any dividend; or (4) to remove or appoint any officer or
director of the Corporation; or (5) to approve, adopt or
recommend to the stockholders, any action or matter expressly
required by law to be submitted to the stockholders for approval
including, without limitation, any amendment to the Certificate
of Incorporation; or (6) to recommend to the stockholders the
sale, lease or exchange of all, or substantially all, of the
Corporation's property and assets; or (7) to approve any
acquisition involving more than $10,000,000 in assets or sales
or purchase price; or (8) to recommend to the stockholders a
dissolution of the Corporation or a revocation of a dissolution,
or (9) to adopt a certificate of ownership and merger pursuant
to Section 253 of the Delaware General Corporation Law.
(b) The Audit Committee. The Audit Committee shall (i)
recommend the principal auditors of the Corporation; (2) consult
with the principal auditors with regard to the plan of audit;
(3) review the report of the audit and the accompanying
management letter; (4) consult with the principal auditors with
regard to the adequacy of internal controls; (5) consult with
the Corporation's internal auditors on the above matters, and
(6) have such other duties and responsibilities as may be
delegated to it from time to time.
(c) The Compensation Committee. The Compensation
Committee shall approve and recommend to the Board of Directors
(1) compensation agreements for officers and directors; (2) the
adoption of any compensation plans in which officers and
directors are eligible to participate; and (3) the granting of
stock options or any benefits to officers and directors under
any such plans; and shall have such other duties and
responsibilities as may be delegated to it from time to time.
In connection with the Corporation's stock option plans, the
Compensation Committee shall have the power to determine the
terms and provisions of the respective stock option agreements
(which need not be identical) and to make all other
determinations necessary or advisable for the administration of
such plans. The Compensation Committee shall have the authority
to determine the persons to whom, and the time or times at
which, options may be granted, the number of shares to be
subject to each, the price at which the shares subject thereto
may be purchased, the period of each option and other terms and
conditions thereof.
Section 3. Organization, etc. The Chairman of a Standing
Committee, selected by the members of the Board of Directors,
shall act as chairman at all the meetings of the Standing
Committee and the Secretary shall act as secretary thereof. In
case the Chairman of a Standing Committee or the Secretary is
absent from any meeting of a committee, the Committee may
appoint a chairman or secretary, as the case may be, of the
meeting.
Section 4. Meetings. Regular meetings of the Standing
Committees (of which no notice shall be necessary) may be held
on any day and at any place, fixed by a resolution adopted by a
majority of the Committee or of the Board and communicated to
all the Committee's members. Special meetings of a Committee
shall be held whenever called by the Chairman of a Standing
Committee, the Chairman of the Board, the Secretary, or a
majority of the members of a Standing Committee then in office.
Notice of each special meeting of a Committee shall be given by
mail, telegraph, cable, wireless or other legally permitted
form of communication (including, without limitation, by
personal delivery or by telephone) to each member of the
Committee no later than the day before the day on which such
meeting is to be held. Notice of any such meeting need not be
given to any member of the Committee, however, if waived by the
member in writing or by telegraph, cable, wireless or other
legally permitted form of communication (including, without
limitation, by personal delivery or by telephone) or if he or
she shall be present at such meeting except if the director
attends the 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. Subject
to the provisions of this Article IV, a Committee, by resolution
adopted by a majority of the whole Committee, may fix its own
rules or procedures, and it shall keep a record of its
procedures and report them to the Board of Directors at its next
regular meeting after such procedures shall have been fixed.
All such proceedings shall be subject to revision or alteration
by the Board of Directors; provided, however, that third parties
shall not be prejudiced by any such revisions or alterations.
Section 5. Quorum and Manner of Acting. A majority of a
Standing Committee shall constitute a quorum for the transaction
of business, and, except as otherwise provided in these By-laws,
the act of the majority of those present at a meeting thereof at
which a quorum is present shall be the act of a Committee.
Section 6. Other Committees. The Board of Directors may
designate other Committees, each Committee to consist of two or
more members. Except as otherwise provided by law, the
Committees shall have and may exercise, to the extent provided
by the resolution, the powers of the Board in the management of
the business and affairs of the Corporation, and have the power
to authorize the seal of the Corporation to be affixed to all
papers which require it. The Committees shall have the names
determined by the Board. Members of the Committees may
participate in meetings by conference call, or similar means as
set forth in Section 11 of Article III.
Section 7. Action by Consent. Unless otherwise restricted
by the Certificate of Incorporation or these By-laws, any action
required or permitted to be taken at any meeting of a Standing
or other Committee may be taken without a meeting if all members
of the Committee consent in writing. The writing must then be
filed with the minutes of the proceedings of the Committee.
Section 8. Reports. Each Committee shall report all
action taken by such Committee to the Board at its next meeting.
Section 9. Other. The Board of Directors may designate
one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member
of the committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of any
such absent or disqualified member.
ARTICLE V.
Officers.
Section 1. Number. The officers of the corporation shall
be a Chairman of the Board; a President; one or more Vice
Presidents, any of whom may be designated as Senior Vice
Presidents or Executive Vice Presidents; a Secretary; a
Treasurer; a Controller and any other officers appointed
pursuant to Section 3 of this Article V. Any two or more
offices, except those of President and Secretary, may be held by
the same person.
Section 2. Election, Term of Office and Qualifications.
The officers shall be elected annually by the Board of
Directors, and, except in the case of officers appointed in
accordance with the provisions of Section 3 of this Article V,
each shall hold office until the next annual election of
officers and until his or her successor has been duly elected
and qualified, or until his or her death, or until he or she
shall resign or be removed.
Section 3. Other Officers. The Corporation may have any
other officers and agents deemed necessary by the Board of
Directors. The other officers and agents shall be appointed in
the manner, have the duties and hold their offices for the terms
determined by the Board of Directors. The Board of Directors
may delegate to any principal officer the power to appoint or
remove any other officers or agents.
Section 4. Resignations. Any officer may resign at any
time by giving written notice of resignation to the Corporation.
The resignation shall take effect at the time specified or, if
the time when it becomes effective is not specified, then it
shall take effect immediately upon its receipt by the Secretary.
Unless otherwise specified in the notice of resignation, the
acceptance of such is not necessary to make it effective.
Section 5. Removal. Any officer may be removed, with or
without cause, by a vote of a majority of the whole Board of
Directors at a regular meeting or a special meeting called for
the purpose.
Section 6. Vacancies. A vacancy in any office because of
death, resignation, removal or any other cause shall be filled
for the unexpired portion of the term in the manner prescribed
in these By-laws for election or appointment to such office.
Section 7. The Chairman of the Board. The Chairman of the
Board (who shall be a Director) shall preside at all meetings of
the Board of Directors and the stockholders. The Chairman of
the Board shall perform such other duties and may exercise such
other powers as from time to time may be assigned to him or her
by these By-laws or by the Board of Directors. In the absence
of the President, the Chairman shall perform all of the duties
and exercise all powers of the President and Chief Executive
Officer.
Section 8. The President. The President, subject to the
general control of the Board, shall be the Chief Executive
Officer of the Corporation. The President shall supervise
generally the affairs of the Corporation and shall have all
powers and perform all duties incident to the officer of a
president and chief executive officer of a corporation and as
provided in these By-laws. The President shall exercise such
other powers and perform such other duties as may be assigned to
him or her by the Board of Directors.
Section 9. Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents. The Executive Vice Presidents,
Senior Vice Presidents and Vice Presidents shall perform such
duties and exercise such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the
Board and the President and Chief Executive Officer.
Section 10. The Secretary and the Assistant Secretaries.
The Secretary shall (1) record or cause to be recorded in books
kept for the purpose, the minutes of the meetings of the
stockholders, the Board of Directors, the Standing Committees,
and all other committees of the Board of Directors, if any; (2)
see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law; (3) be
custodian of all corporate records (other than financial) and of
the seal of the Corporation and shall have the power to cause
the seal to be affixed to all documents which are duly
authorized to be executed on behalf of the Corporation; (4) keep
the list of stockholders including the address of each
stockholder, and make all proper changes in the list; (5) see
that the books, reports, statements, certificates and all other
documents and records required by law are properly kept and
filed; and (6) in general, perform all duties incident to the
office of Secretary and such other duties as may, from time to
time, be assigned to him or her by the Board of Directors, the
Chairman of the Board or the President.
At the request of the Secretary, or in his or her absence
or disability, any Assistant Secretary shall perform any of the
duties of the Secretary and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the
Secretary. Except where by law the signature of the Secretary
is required, each of the Assistant Secretaries shall possess the
same power as the Secretary to sign certificates, contracts,
obligations and other instruments of the Corporation, and to
affix the seal of the Corporation to such instruments, and
attest to them.
Section 11. The Treasurer and the Assistant Treasurers.
The Treasurer shall (1) have charge and custody of, and be
responsible for, all funds and securities of the Corporation,
and shall deposit all such funds in the name of the Corporation
in the banks, trust companies or other depositaries selected in
accordance with the provisions of these By-laws, (2) render to
the Board of Directors, whenever the Board may require him or
her so to do, and shall present at the annual meeting of the
stockholders, if called upon so to do by the Board of Directors,
a report of all his or her transactions as Treasurer and (3) in
general, perform all duties incident to the office of Treasurer
and such other duties as may, from time to time, be assigned to
him or her by the Board of Directors, the Chairman of the Board
or the President.
If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the Board of
Directors shall determine.
At the request of the Treasurer, or in his or her absence
or disability, any Assistant Treasurer may perform any of the
duties of the Treasurer and, when so acting, shall have all the
power of, and be subject to all the restrictions upon, the
Treasurer. Except where by law the signature of the Treasurer
is required, each of the Assistant Treasurers shall possess the
same power as the Treasurer to sign all certificates, contracts,
obligations and other instruments of the Corporation.
Section 12. The Controller. The Controller shall be the
chief accounting officer of the Corporation, and as such shall
be in charge of all internal audits and accounting procedures
and records. The Controller shall render to the Board of
Directors, whenever he or she deems it appropriate or whenever
the Board may require him or her so to do, appropriate financial
or other reports as to the Corporation.
Section 13. Salaries. The salaries of the Chairman of the
Board, the Chief Executive Officer and the President shall be
fixed from time to time by the Board of Directors. The salaries
of the other officers shall be fixed from time to time by the
Chief Executive Officer after consultation with the Compensation
Committee. The salaries of any officers appointed by a
principal officer pursuant to Section 3 of this Article V shall
be fixed from time to time by the principal officer appointing
such officers. No officer shall be prevented from receiving
such salary by reason of the fact that he or she is also a
director of the Corporation.
ARTICLE VI.
Contracts, Checks, Loans and Deposits.
Section 1. Contracts, Checks, etc. All contracts and
agreements authorized by the Board of Directors, and all checks,
drafts, bills of exchange or other orders for the payment of
money, notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by the officer(s) or
agent(s) designated by the Board of Directors. The designation
may be general or confined to specific instances.
Section 2. Proxies in Respect of Securities of Other
Corporations. Unless otherwise provided by resolution adopted
by the Board of Directors, the Chairman of the Board, the
President or a Vice President may appoint an attorney(s) or
agent(s) to exercise in the name and on behalf of the
Corporation the powers and rights of the Corporation as the
holder of stock or other securities in any other corporation, to
vote or to consent in respect of such stock or other securities.
The Chairman of the Board, the President or a Vice President may
instruct the person(s) so appointed as to the manner of
exercising such powers and rights and the Chairman or the Board,
the President or a Vice President may execute all such written proxies,
powers of attorney or other written instruments as he or she may deem
necessary for the Corporation to exercise such powers and
rights.
ARTICLE VII.
Certificates of Stock, Books and Records.
Section 1. Form, Signature. The certificates of stock of
the Corporation shall be numbered and shall be entered in the
books of the Corporation as they are issued. They shall exhibit
the holder's name and number of shares and shall be signed by
the Chairman of the Board, the President, a Vice President and the
Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary; provided, however, that any signature on
the certificate may be a facsimile. If any officer of the
Corporation who has signed, or whose facsimile signature has
been placed upon such certificate, ceases to be such before such
certificate has been issued, the certificate may nevertheless be
issued by the Corporation with the same effect as though such
person were such officer at the date of issuance.
Section 2. Transfer. Transfers of stock shall be made on
the books of the Corporation only by the person named in the
certificate or by attorney lawfully constituted in writing, and
upon surrender of the certificate therefor.
Section 3. Record Owner. The Corporation shall be
entitled to treat the holder of record of any share or shares of
stock as the holder in fact and accordingly shall not be bound
to recognize any equitable or other claim to or interest in the
share on the part of any other person, whether or not the
Corporation has express or other notice of it, except as
expressly provided by the laws of Delaware.
Section 4. Lost Certificates. Any person claiming a
certificate of stock to be lost, stolen or destroyed shall make
an affidavit or affirmation of that fact in form satisfactory to
the Corporation and shall if the officers so require give the
Corporation a bond of indemnity, in form and with one or more
sureties satisfactory to the officers, in an amount which in the
sole discretion of the officers is sufficient to indemnify the
Corporation against any claim that may be made against it on
account of the alleged loss, theft or destruction, or the
issuance of a new certificate, whereupon a new certificate may
be issued of the same tenor and for the same number of shares as
the one alleged to be lost, stolen or destroyed.
Section 5. Books and Records. The books and records of
the Corporation may be kept at such places within or without the
State of Delaware as the Board of Directors may determine.
Section 6. Fixing Date for Determination of Stockholders
of Record. In order that the Corporation may determine the
identity of the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment, or entitled to
receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
respect of any other change, conversion or exchange of stock or
for any other purpose, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60)
days not less than ten (10) days before the date of such
meeting, nor more than (60) days prior to any other action. If,
in any case involving the determination of stockholders for any
purpose other than notice of or voting at a meeting of
stockholders, a record date is not fixed, the record date for
determining stockholders for such purpose shall be the close of
business on the day on which the Board of Directors shall adopt
the resolution. Notwithstanding anything herein to the
contrary, the record date for determining stockholders of the
Corporation entitled to express consent to corporate action
without a meeting shall be fixed as described in Article XIII of
the By-laws. A determination of stockholders entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE VIII.
Dividends.
Subject to the provisions of law and of the Certificate of
Incorporation, the Board of Directors, at any regular or special
meeting, may declare and pay dividends upon a share of stock
either (a) out of its surplus as defined in and computed in
accordance with the provisions of law or (b) in case it shall
not have any such surplus, out of its net profits for the fiscal
year in which the dividend is declared and/or the preceding
fiscal year.
Before payment of any dividend or making any distribution
of profits, the Board of Directors in its sole discretion may
set aside out of the surplus or net profits of the Corporation a
sum as a reserve fund to meet contingencies or to equalize
dividends, or to repair or maintain any property of the
Corporation, or for any other purpose the directors think
conducive to the interests of the Corporation.
ARTICLE IX.
Seal.
The corporate seal shall bear the name of the Corporation,
the year in which the Corporation was incorporated (1968) and
the words "CORPORATE SEAL - DELAWARE."
ARTICLE X.
Fiscal Year.
The fiscal year of the Corporation shall end on the thirty-
first day of December in each year.
ARTICLE XI.
Indemnification.
Section 1. Action, etc. Other than by or in the Right of
the Corporation. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as
it presently exists or may hereafter be amended, 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 or she, or a person of whom he or she was or
is the legal representative, is or was a director, officer,
employee, agent or member of a management committee of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, agent or member of
a management committee of another corporation, partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against all charges, expenses
(including attorneys' fees), judgments, liabilities, ERISA
excise taxes, fines, penalties and amounts paid in settlement
actually and reasonably incurred by him or her in connection
with such action, suit or proceeding if he or she acted in good
faith and in a manner which he or she 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 or her 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 or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any
criminal action or proceeding, that he or she had reasonable
cause to believe that his or her conduct was unlawful.
Section 2. Actions, etc. by or in the Right of the
Corporation. The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was
or is a party or is threatened to be made a party to any right
of the Corporation to procure a judgment in its favor by reason
of the fact that he or she 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 all expenses (including
attorneys' fees) actually and reasonably incurred by him or her
in connection with the defense or settlement of such action or
suit if he or she acted in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best
interests of the Corporation. However, 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. Determination of Right to Indemnification. Any
indemnification under Section 1 or 2 of this Article (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 or she has met the
applicable standard of conduct set forth in Section 1 or 2 of
this Article. This determination shall be made, with respect to
a person who is a director or officer at the time of such
determination, (i) by a majority vote of the directors who were
not parties to such action, suit or proceeding even though less
than a quorum, or (ii) by a committee of such directors
designated by majority vote of such directors, even though less
than a quorum, or (iii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders.
Section 4. Right to Indemnification. Notwithstanding the
other provisions of this Article, to the extent that a present
or former 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, or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
Section 5. Prepaid Expenses. Expenses (including
attorneys' fees) incurred by a present or former officer or director in
defending a civil, criminal, administrative or investigative action, suit
or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon
receipt of an undertaking, to the extent required by applicable law,
by or on behalf of the director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by
the Corporation as authorized in this Article.
Section 6. Other Rights and Remedies. The indemnification
and advancement of expenses provided by, or granted pursuant to,
the other subsections of this Article shall not be deemed
exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled under
any By-laws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such
office.
Section 7. Continuation of Rights. 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.
Section 8. Insurance. The Corporation may 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 or her and incurred in any such capacity,
or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against
the liability under the provisions of this Article.
Section 9. Expenses as a Witness. To the extent any
director, officer, employee, member of a management committee or
agent of the Corporation is by reason of such position, or a
position with another entity at the request of the Corporation,
a witness in any action, suit or proceeding, he or she shall be
indemnified against all costs and expenses actually and
reasonably incurred by him or her on his or her behalf in
connection therewith.
Section 10. Other. (a) Notwithstanding anything in this
Article to the contrary, except as otherwise provided in Section
10(b), the Corporation shall be required to indemnify a person
pursuant to the terms of this Article in connection with an
action, suit or proceeding (or part thereof) commenced by such
person only if the commencement of such action, suit or
proceeding (or part thereof) by the person was authorized by the
Board of Directors.
(b) If a claim for indemnification or advancement of
expenses under this Article is not paid in full within thirty
days after a written claim therefor by a person described in
Sections 1, 2, 5 or 9, as the case may be, of this Article has
been received by the Corporation, such person may file suit to
recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation
shall have the burden of proving that the person is not entitled
to the requested indemnification or advancement of expenses
under applicable law.
ARTICLE XIII.
Consent to Corporation Action.
Section 1. Record Date for Action by Written Consent.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by
the Board of Directors. Any stockholder of record seeking to
have the stockholders authorize or take corporate action by
written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board
of Directors shall promptly, but in all events within ten (10)
days after the date on which such a request is received, adopt a
resolution fixing the record date (unless a record date has
previously been fixed by the Board of Directors pursuant to the
first sentence of this Section 1). If no record date has been
fixed by the Board of Directors pursuant to the first sentence
of this Section 1 or otherwise within ten (10) days of the date
on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first
date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in Delaware, its principal
place of business or to any officer or agent of the Corporation
having custody of the books in which proceedings of meetings of
stockholders are recorded. Delivery shall be by hand or by
certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by applicable law,
the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors
adopts the resolution taking such prior action.
Section 2. Inspectors of Written Consent. In the event
of the delivery, in the manner provided by Section 1 of this
Article XIII, to the Corporation of written consent or consents
to take corporate action and/or any related revocation or
revocations, the Corporation shall engage independent inspectors
of elections for the purpose of performing promptly a
ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to
perform such review, no action by written consent without a
meeting shall be effective until such date as the independent
inspectors certify to the Corporation that the consents
delivered to the Corporation in accordance with Section 1 of
this Article XIII represent at least the minimum number of votes
that would be necessary to take the corporate action. Nothing
contained in this Section 2 shall in any way be construed to
suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after such certification
by the independent inspectors, or to take any other action
(including, without limitation, the commencement, prosecution,
or defense of any litigation with respect thereto, and the
seeking of injunctive relief in such litigation).
Section 3. Effectiveness of Written Consent. Every
written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein
unless, within sixty (60) days of the earliest dated written
consent received in accordance with Section 1 of this Article
XIII, a written consent or consents signed by a sufficient
number of holders to take such action are delivered to the
Corporation in the manner prescribed in Section 1 of this
Article XIII.
ARTICLE XIV.
Amendments.
All By-laws of the Corporation shall be subject to
alteration or repeal, and new By-laws may be made, by the
stockholders at any annual or special meeting, or, except as
otherwise provided by the Certificate of Incorporation, these
By-laws or by law, by the affirmative vote of a majority of the
directors then in office given at any regular or special meeting
of the Board of Directors; provided, however, that any
alteration or repeal of any provision of Section 2, 5 or 11 of
Article II; Section 2, 5, 6 or 11 of Article III; Article XI; or
Article XII of these By-laws or of this Article XIV, and any new
By-law that has the effect of altering, repealing or modifying
any such provision, made by the stockholders shall require the
affirmative vote of at least 66 2/3% of the voting power of the
outstanding capital stock of the Corporation entitled to vote
for the election of directors generally.
