BYLAWS OF HEXCEL CORPORATION
A DELAWARE CORPORATION
AMENDED AND RESTATED AS OF DECEMBER 19, 2000
OFFICES
1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of the
Corporation is hereby fixed and located at 2 Stamford Plaza, Stamford,
Connecticut. The Board of Directors is hereby granted full power and
authority to change the place of said principal executive office from time
to time.
2. OTHER OFFICES. The registered office of the Corporation in the State of
Delaware is hereby fixed and located at 1209 Orange Street, Wilmington,
Delaware, c/o The Corporation Trust Company. The Board of Directors is
hereby granted full power and authority to change the place of said
registered office within the State of Delaware from time to time. The
Corporation may also have offices in such other places in the United States
or elsewhere as the Board of Directors may from time to time designate or
as the business of the Corporation may from time to time require.
STOCKHOLDERS
3. PLACE OF MEETINGS. Stockholders' meetings shall be held at such place,
whether within or without the State of Delaware, as the Board of Directors
shall, by resolution, designate.
4. ANNUAL MEETINGS. Annual meetings of stockholders shall be held on such
dates and at such times as shall be designated from time to time by the
Board of Directors and stated in the notice of such annual meeting. At such
annual meetings directors shall be elected and such other business as may
be properly brought before such meeting shall be conducted.
Written notice of each annual meeting shall be mailed to or
delivered to each stockholder of record entitled to vote thereat not less
than ten (10) days nor more than sixty (60) days before the date of such
annual meeting. Such notice shall specify the place, the day, and the hour
of such meeting, and the matters which the Board of Directors intends to
present for action by the stockholders.
Except to the extent, if any, specifically provided to the contrary
in the Certificate of Incorporation or these Bylaws, to be properly brought
before an annual meeting, all business must be either (a) specified in the
notice of annual meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors or (c)
otherwise properly brought before the annual meeting by a stockholder of
record who complies with the notice procedures set forth below. In addition
to any other applicable requirements, for business (including the
nomination of a person or persons for election to the Board of Directors)
to be properly brought before any annual meeting by a stockholder, the
stockholder must have given timely notice thereof, in proper form, to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of
the Corporation not less than sixty (60) nor more than ninety (90) days
prior to the anniversary date of the immediately preceding annual meeting;
provided, however, that in the event the annual meeting is called for a
date that is not within thirty (30) days before or after such anniversary
date, notice by the stockholder in order to be timely must be so received
not later than the close of business on the tenth (10th) day following the
date on which notice of the date of the annual meeting was mailed or
otherwise made public. To be in proper form, a stockholder's notice to
the Secretary must be in writing and must set forth with respect to each
matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting,
(b) the name and record address of the stockholder proposing such business,
(c) the class or series and number of shares of the capital stock of the
Corporation that are owned beneficially or of record by the stockholder,
(d) as to each person whom the stockholder proposes to nominate for
election to the Board of Directors, (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or
employment of the person and (iii) the class or series and number of shares
of capital stock of the Corporation that are owned beneficially or of
record by the person, (e) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their name(s)) in connection with the proposal of such business
(or the nomination of any person or persons for election to the Board of
Directors) by any stockholder and any material interest of such stockholder
in such business (or nomination), (f) any other information that would be
required to be disclosed in a proxy statement or other filing required to
be made in connection with the solicitation of proxies for the proposal (or
the election of a person or persons to the Board of Directors) pursuant to
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder if such stockholder were engaged in such
a solicitation and (g) a representation that such stockholder or a
representative thereof intends to appear in person at the annual meeting to
bring such business before the meeting (or nominate a person or persons for
election to the Board of Directors). Any such notice relating to the
nomination of a person or persons for election to the Board of Directors
must be accompanied by a written consent of each proposed nominee to being
named as a nominee and to serve as a director if elected.
The Chairman of the annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 4 and
any such business not properly brought before the meeting shall not be
transacted at the meeting.
5. SPECIAL MEETINGS. Special meetings of the stockholders may be called at
any time and for any purpose or purposes by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or by a committee of the
Board of Directors which has been duly designated by the Board of Directors
and whose powers and authority, as provided in a resolution of the Board of
Directors or in these Bylaws, include the power to call such meetings. If
and to the extent that any special meeting of stockholders may be called by
any other person or persons specified in any provision of the Certificate
of Incorporation or any amendment thereto, or any certificate filed under
Section 151(g) of the General Corporation Law of the State of Delaware (the
"GCL") designating the number of shares of Preferred Stock to be issued and
the rights, preferences, privileges and restrictions granted to and imposed
on the holders of such designated Preferred Stock, then such special
meeting may also be called by such person or persons in the manner, at the
times and for the purposes so specified. Except in special cases where
other express provision is made by statute, notice of such special meeting
shall be given in the same manner as for an annual meeting of stockholders.
Such notice shall also specify the general nature of the business to be
transacted at the meeting, and no business shall be transacted at the
special meeting except as specified in such notice (or any supplement
thereto).
6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any stockholders' meeting, annual
or special, whether or not a quorum is present, may be adjourned from time
to time by the chairman of such meeting or by the vote of a majority of the
shares present in person or represented by proxy at such meeting, but in
the absence of a quorum no other business may be transacted at such
meeting.
Notice of an adjourned meeting need not be given if (a) the meeting
is adjourned for thirty (30) days or less, (b) the time and place of the
adjourned meeting are announced at the meeting at which the adjournment is
taken, and (c) no new record date is fixed for the adjourned meeting.
Otherwise, notice of the adjourned meeting shall be given as if the
adjourned meeting were a new meeting.
7. VOTING. Except as otherwise provided by applicable law, the Certificate
of Incorporation or these Bylaws, a stockholder shall be entitled to one
vote for each share held of record on the record date fixed for the
determination of the stockholders entitled to notice of and to vote at a
meeting or, if no such date is fixed, the date determined in accordance
with applicable law. If any share is entitled to more or less than one vote
on any matter, all references herein to a majority or other proportion of
shares shall refer to a majority or other proportion of the voting power of
shares entitled to vote on such matter.
8. QUORUM. A majority of the outstanding shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the
transaction of business. No business may be transacted at a meeting in the
absence of a quorum other than the adjournment of such meeting, except that
if a quorum is present at the commencement of a meeting, business may be
transacted until the meeting is adjourned even though the withdrawal of
stockholders results in less than a quorum being present in person or by
proxy at such meeting. If a quorum is present at a meeting, the affirmative
vote of a majority of the shares present or represented by proxy at the
meeting and entitled to vote on any matter shall be the act of the
stockholders unless the vote of a larger number is required by applicable
law, the Certificate of Incorporation or these Bylaws. If a quorum is
present at the commencement of a meeting but the withdrawal of stockholders
results in less than a quorum being present in person or by proxy at such
meeting, the affirmative vote of a majority of the shares required to
constitute a quorum shall be the act of the stockholders unless the vote of
a larger number is required by applicable law, the Certificate of
Incorporation or these Bylaws.
9. PROXIES. A stockholder may be represented at any meeting of stockholders
by a written proxy signed by the person entitled to vote or by such
person's duly authorized attorney-in-fact. A proxy must bear a date within
three (3) years prior to the meeting, unless the proxy specifies a
different length of time. A revocable proxy is revoked by a writing
delivered to the Secretary of the Corporation stating that the proxy is
revoked or by a subsequent proxy executed by, or by attendance at the
meeting and voting in person by, the person executing the proxy.
10. CHAIRMAN AND SECRETARY AT MEETINGS. At any meeting of
stockholders, the Chairman of the Board of Directors, or in his absence, a
person designated by the Board of Directors, shall preside at and act as
chairman of the meeting. The Secretary, or in his absence a person
designated by the chairman of the meeting, shall act as secretary of the
meeting.
11. INSPECTORS. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath to faithfully execute the duties of
inspector. The inspector(s) shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the
number of shares present or represented by proxy at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall
receive votes, ballots or consents, count and tabulate all votes, ballots
or consents, determine the results of any election or vote, and do such
acts as are proper to conduct the election or vote with fairness to all
stockholders. At the request of the chairman of the meeting, the inspectors
shall make a written report of any matters determined by them. No director
or candidate for the office of director shall act as an inspector of an
election of directors.
12. LIST OF STOCKHOLDERS. The Secretary of the Corporation shall 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 the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
DIRECTORS
13. POWERS. Subject to any limitations contained in the Certificate of
Incorporation, these Bylaws or the GCL as to actions to be authorized or
approved by the stockholders, and subject to the duties of directors as
prescribed by these Bylaws, all corporate powers shall be exercised by or
under the ultimate direction of, and the business and affairs of the
Corporation shall be managed by, or under the ultimate direction of, the
Board of Directors.
14. CERTAIN DEFINITIONS. For purposes of these Bylaws:
"Additional Shares" means, as of any date of determination, up to
255,381 shares of the Corporation's Common Stock (as equitably adjusted to
reflect any stock split, combination, reorganization, recapitalization,
reclassification or other similar event involving the Corporation's Common
Stock), in the aggregate, (i) the Beneficial Ownership of which may be
acquired inadvertently from time to time by The Goldman Sachs Group, Inc.
or its Affiliates acting in connection with their activities as a broker or
dealer registered under Section 15 of the Exchange Act or as an asset
manager (excluding Affiliates formed for the purpose of effecting principal
transactions) or (ii) the Beneficial Ownership of which may be acquired by
the Investors pursuant to grants of stock options or other stock-based
awards to the Investors' Directors by the Corporation pursuant to any stock
option or stock incentive plan approved by the Board of Directors of the
Corporation, including without limitation the Hexcel Incentive Stock Plan;
provided, that if and for so long as The Goldman Sachs Group, Inc. and its
Affiliates collectively Beneficially Own less than 30% of the Total Voting
Power of the Corporation, the maximum number of Additional Shares shall be
400,000 (as equitably adjusted to reflect any stock split, combination,
reorganization, recapitalization, reclassification or other similar event
involving the Corporation's Common Stock).
An "Affiliate" of any Person means any other Person that directly
or indirectly, through one or more intermediaries, Controls, is Controlled
by, or is under common Control with, such first Person. "Control" has the
meaning specified in Rule 12b-2 under the Exchange Act as in effect on the
date of this Agreement.
Any person shall be deemed to "Beneficially Own", to have
"Beneficial Ownership" of, or to be "Beneficially Owning" any securities
(which securities shall also be deemed "Beneficially Owned" by such person)
that such person is deemed to "beneficially own" within the meaning of Rule
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, as
in effect on December 19, 2000; provided that, except for the rights set
forth in Section 3.02 of the Governance Agreement, any Person shall be
deemed to Beneficially Own any securities that such Person has the right to
acquire, whether or not such right is exercisable immediately.
"Buyout Transaction" means a tender offer, merger, sale of all or
substantially all the Corporation's assets or any similar transaction that
offers holders of Voting Securities (other than, if applicable, the Person
proposing such transaction) the opportunity to dispose of Voting Securities
Beneficially Owned by such holders or otherwise contemplates the
acquisition by any Person or Group of Voting Securities that would result
in Beneficial Ownership by such Person or Group of a majority of the Voting
Securities outstanding, or a sale of all or substantially all of the
Corporation's assets.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Governance Agreement" means the Governance Agreement dated as of
December 19, 2000 among LXH, L.L.C., LXH II, L.L.C., the Corporation and
the other parties listed on the signature pages thereto (the "Limited
Partnerships").
"Group" has the meaning set forth in Section 13(d) of the Exchange
Act as in effect on the date of this Agreement.
"GS Capital" means GS Capital Partners 2000, L.P., a Delaware limited
partnership.
"Hexcel Incentive Stock Plan" means the Hexcel Corporation
Incentive Stock Plan, as amended and restated as of February 3, 2000 and
any subsequent amendment thereto approved by the Board of Directors of the
Corporation.
"Independent Director" means a director of the Corporation who is
not an Investors' Director and who (i) is not and has never been an
officer, employee or director of any of the Investors or their Affiliates
or associates (as defined in Rule 12b-2 under the Exchange Act), in each
case other than the Corporation, and (ii) has no affiliation or
compensation, consulting or contractual relationship with any of the
Investors or their Affiliates or associates (in each case other than the
Corporation) such that a reasonable person would regard such director as
likely to be unduly influenced by any of such Persons or any of their
Affiliates or associates (in each case other than the Corporation).
"Initial Investors' Shares" means the 14,525,000 shares of the
Corporation's Common Stock initially purchased by the Investors pursuant to
the Stock Purchase Agreement, dated October 10, 2000, among Ciba Specialty
Chemicals Holding Inc., Ciba Specialty Chemicals Inc., and the Investors
(as equitably adjusted to reflect any stock split, combination,
reorganization, recapitalization, reclassification or other similar event
involving the Initial Investors' shares).
"Investors" means (i) LXH, L.L.C., a Delaware limited liability
company, (ii) LXH II, L.L.C., a Delaware limited liability company, (iii)
each of the Limited Partnerships, (iv) The Goldman Sachs Group, Inc., or
any direct or indirect Subsidiary of The Goldman Sachs Group, Inc. formed
for the purpose of effecting principal transactions, and (v) subject to the
approval of a majority of the Independent Directors, one other Person
designated within 90 days following the Closing Date by LXH, L.L.C. or LXH
II, L.L.C. as a proposed transferee of up to 2,200,000 shares of the
Corporation's Common Stock; provided, that any of the foregoing Persons
shall be an Investor only for so long as it Beneficially Owns Voting
Securities subject to the provisions of the Governance Agreement or is a
transferee of Voting Securities pursuant to Section 4.01(a)(i) of the
Governance Agreement; provided, further, that any such Person specified in
clause (iv) or (v) that acquires Voting Securities in accordance with the
Governance Agreement has executed a joinder in which it shall agree to be
bound by the provisions of the Governance Agreement to the same extent as
the Investors.
"Investors' Directors" means Investors' Nominees who are elected or
appointed to serve as members of the Board of Directors.
"Investors' Nominees" means such persons as are so designated by GS
Capital or LXH II, L.L.C., as such designations may change from time to
time, to serve as members of the Board of Directors pursuant to Sections 17
and 18.
"Ordinary Course Broker Dealer Shares" means those shares of the
Corporation's Common Stock which are acquired by any Person solely in
connection with the activities of a broker or dealer registered under
Section 15 of the Exchange Act (i) as a result of underwriting activities
in connection with a registration statement filed by Hexcel (including any
shares acquired for the investment account of a broker or dealer in
connection with such underwriting activities), (ii) as a result of the
exercise of investment or voting discretion authority with respect to any
of such Person's customer accounts, or (iii) in good faith in connection
with a debt previously contracted; provided, in each case, that the Person
engaging in such activities does not Beneficially Own such shares of the
Corporation's Common Stock.
"Person" or "person" means any individual, group, corporation,
partnership, joint venture, trust, business association, organization,
governmental entity or other entity.
"Subsidiary" means, with respect to any Person, as of any date of
determination, any other Person as to which such Person owns, directly or
indirectly, or otherwise controls, more than 50% of the voting shares or
other similar interests.
"Significant Subsidiary" has the meaning set forth in Rule 1-02 of
Regulation S-X under the Securities Act of 1933, as amended, as in effect
on December 19, 2000.
"Total Voting Power of the Corporation" means the total number of
votes that may be cast in the election of directors of the Corporation if
all Voting Securities outstanding or treated as outstanding pursuant to the
final sentence of this definition were present and voted at a meeting held
for such purpose. The percentage of the Total Voting Power of the
Corporation Beneficially Owned by any Person is the percentage of the Total
Voting Power of the Corporation that is represented by the total number of
votes that may be cast in the election of directors of the Corporation by
Voting Securities Beneficially Owned by such Person. In calculating such
percentage, the Voting Securities Beneficially Owned by any Person that are
not outstanding but are subject to issuance upon exercise or exchange of
rights of conversion or any options, warrants or other rights Beneficially
Owned by such Person shall be deemed to be outstanding for the purpose of
computing the percentage of the Total Voting Power represented by Voting
Securities Beneficially Owned by such Person, but shall not be deemed to be
outstanding for the purpose of computing the percentage of the Total Voting
Power represented by Voting Securities Beneficially Owned by any other
Person.
"Voting Securities" means the Common Stock of the Corporation and
any other securities of the Corporation or any subsidiary of the
Corporation entitled to vote generally in the election of directors of the
Corporation or such subsidiary of the Corporation.
15. NUMBER OF DIRECTORS.
(a) Except as provided in Subsection 6.1 of the Certificate of
Incorporation and subject to compliance with Section 17, the authorized
number of directors of this Corporation shall be not less than three (3)
nor more than fifteen (15), with the exact number of directors within such
range specified in subsection (b) below, or, if not so specified, with the
exact number of directors within such range fixed from time to time by
resolution of the Board of Directors.
(b) It is hereby specified that this Corporation shall have ten
(10) directors, one of whom shall be the Chief Executive Officer (who shall
also be Chairman of Board) of the Corporation.
16. ELECTION.
(a) Directors shall hold office until the annual meeting next
following their election and until their successors are nominated, elected
and qualified pursuant to these Bylaws; subject, however, to their prior
resignation, death or removal as provided by the Certificate of
Incorporation, these Bylaws or applicable law.
Subject to the Certificate of Incorporation and Subsections (b),
(c), (d) and (e) hereof, any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in
the number of directors, may be filled by the Board of Directors, acting by
a majority of the directors then in office, even if less than a quorum; and
any directors so chosen shall hold office until the next election of the
class for which such directors shall have been chosen, and until their
successors shall be elected and qualified or until their earlier death,
resignation or removal.
(b) If at any time a member of the Board dies, resigns or is
removed, a new member shall be designated to replace such member until the
next election of directors. If, consistent with Section 17, the replacement
director is to be an Investors' Director, the Investors shall designate the
replacement Investors' Director. If the former member was the Chief
Executive Officer, the replacement Chief Executive Officer shall be the
replacement. Except as set forth in paragraph (d) below, if consistent with
Section 17, the replacement director is to be an Independent Director
(other than the Chief Executive Officer), the remaining Independent
Directors (including the Chief Executive Officer, if he or she is an
Independent Director) shall designate the replacement Independent Director.
(c) Subject to paragraph (d) below, if at any time the number of
Investors' Nominees entitled to be nominated to the Board of Directors in
accordance with these Bylaws in an election of directors presented to
stockholders decreases, within 10 days thereafter the Investors shall cause
a sufficient number of Investors' Directors to resign from the Board of
Directors so that the number of Investors' Directors on the Board of
Directors after such resignation(s) equals the number of Investors'
Nominees that GS Capital and the Investors would have been entitled to
designate had an election of directors taken place at such time. GS Capital
and the Investors shall also cause a sufficient number of Investors'
Directors to resign from any relevant committees of the Board of Directors
so that such committees are comprised in the manner contemplated by Section
19 after giving effect to such resignations. Any vacancies created by the
resignations required by this Subsection (c) shall be filled by Independent
Directors.
(d) If at any time the percentage of the Total Voting Power of the
Corporation Beneficially Owned by the Investors decreases as a result of an
issuance of Voting Securities by the Corporation (other than any of the
issuances described in the last sentence of this Section 16(d)), the
Investors may notify the Corporation that the Investors intend to acquire a
sufficient amount of additional Voting Securities necessary to maintain its
then current level of Board of Directors representation within 90 days. In
such event, until the end of such period (and thereafter if the Investors
in fact restore their percentage of the Total Voting Power of the
Corporation during such period and provided that the Investors continue to
maintain the requisite level of Beneficial Ownership of Voting Securities
in accordance with Section 17) the Board of Directors shall continue to
have the number of Investors' Directors that corresponds to the percentage
of the Total Voting Power of the Corporation Beneficially Owned by the
Investors prior to such issuance of Voting Securities by the Corporation.
Notwithstanding any provision in the Governance Agreement to the contrary,
the provisions of this Section 16(d) shall not apply to any issuance of
Voting Securities (x) in connection with the registered public offering of
up to 6,900,000 shares of the Corporation's Common Stock permitted by
Section 20(c), (y) upon conversion of any convertible securities which are
either outstanding on the date hereof or approved by the Board or a duly
authorized committee of the Board after the date hereof in accordance with
Section 2.06 of the Governance Agreement, or (z) pursuant to employee or
director stock option or incentive compensation or similar plans
outstanding as of the date hereof or, subsequent to the date hereof,
approved by the Board or a duly authorized committee of the Board.
(e) Whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at any annual or special
meeting of stockholders, the election, term of office, filling of
vacancies, removal and other features of such directorships shall be
governed by the terms of the Certificate of Incorporation applicable
thereto, and by the terms of any certificate filed pursuant to Section
151(g) of the GCL designating such class or series and the rights,
preferences, privileges and restrictions granted to and imposed on the
holders of such designated Preferred Stock.
17. INVESTORS BOARD REPRESENTATION.
(a) For so long as the Investors Beneficially Own 20% or more of
the Total Voting Power of the Corporation, subject to Section 2.02(d), the
Corporation shall exercise all authority under applicable law to cause any
slate of directors presented to stockholders for election to the Board of
Directors to consist of such nominees that, if elected, would result in the
entire Board of Directors consisting of three Investors' Directors, the
Chief Executive Officer (who shall also be the Chairman of the Board), and
six additional Independent Directors; provided, however, that if the
Investors, directly or indirectly, shall have sold, transferred or
otherwise disposed of, on a cumulative basis, Beneficial Ownership of such
number of shares of the Corporation's Common Stock representing 331/3% or
more of the Initial Investors' Shares to Persons who are not Investors,
then the Corporation shall exercise all authority under applicable law to
cause any slate of directors presented to stockholders for election to the
Board of Directors to consist of such nominees that, if elected, would
result in the entire Board of Directors consisting of two Investors'
Directors, the Chief Executive Officer (who shall also be the Chairman of
the Board), and seven additional Independent Directors.
(b) For so long as the Investors Beneficially Own less than 20% but
at least 15% of the Total Voting Power of the Corporation, subject to
Section 17(d), the Corporation shall exercise all authority under
applicable law to cause any slate of directors presented to stockholders
for election to the Board of Directors to consist of such nominees that, if
elected, would result in the entire Board of Directors consisting of two
Investors' Directors, the Chief Executive Officer (who shall also be the
Chairman of the Board) and seven additional Independent Directors;
provided, however, that if the Investors, directly or indirectly, shall
have sold, transferred or otherwise disposed of, on a cumulative basis,
Beneficial Ownership of such number of shares representing 662/3% or more
of the Initial Investors' Shares, then the Corporation shall exercise all
authority under applicable law to cause any slate of directors presented to
stockholders for election to the Board of Directors to consist of such
nominees that, if elected, would result in the entire Board of Directors
consisting of one Investors' Director, the Chief Executive Officer (who
shall also be the Chairman of the Board), and eight additional Independent
Directors.
(c) For so long as the Investors Beneficially Own less than 15% but
at least 10% of the Total Voting Power of the Corporation, subject to
Section 17(d), the Corporation shall exercise all authority under
applicable law to cause any slate of directors presented to stockholders
for election to the Board of Directors to consist of such nominees that, if
elected, would result in the entire Board of Directors consisting of one
Investors' Director, the Chief Executive Officer (who shall also be the
Chairman of the Board), and eight additional Independent Directors.
(d) In order to determine (x) the number of Investors' Nominees to
be included in any slate of directors to be presented to stockholders for
election to the Board of Directors and (y) the percentage of the Total
Voting Power of the Corporation Beneficially Owned by the Investors for
purposes of Section 20, the Investors shall be deemed to Beneficially Own a
percentage of the Total Voting Power of the Corporation that is no more
than (1) 39.3% of the Total Voting Power of the Corporation less (2) the
percentage of the Total Voting Power of the Corporation represented by any
Voting Securities disposed of, directly or indirectly, by the Investors
since December 19, 2000.
(e) The Additional Shares shall not be included in any calculation
of the Investors' Beneficial Ownership of the Total Voting Power of the
Corporation under these Bylaws.
18. DESIGNATION OF SLATE. Any Investors' Nominees that are included in a
slate of directors pursuant to Section 17 shall be designated by the
Investors, and any Independent Director nominees who are to be included in
any slate of directors pursuant to Section 17 shall be designated by
majority vote of the then incumbent Independent Directors (including the
Chief Executive Officer (who shall also be the Chairman of the Board) if he
or she is an Independent Director). The Corporation's nominating committee,
if any (or if there is no such nominating committee, the Board or any other
duly authorized committee thereof) shall nominate each person so
designated.
19. COMMITTEE MEMBERSHIP. Subject to applicable law, rules and regulations
(including those of applicable self-regulatory organizations), so long as
the Investors shall be entitled to designate two or more Investors'
Directors for election to the Board of Directors, each committee of the
Board of Directors, including the finance, audit, nominating, and
compensation committees, shall include at least one Investors' Director.
20. APPROVALS. The Board of Directors shall not authorize, approve or
ratify any of the following actions without the approval of a majority of
the Investors' Directors for so long as (subject to the provisions of
Section 17(d)) the Investors Beneficially Own 15% or more of the Total
Voting Power of the Corporation and, if the Investors' collective
percentage Beneficial Ownership of the Total Voting Power of the
Corporation is reduced below 15% as so determined by an issuance of Voting
Securities by the Corporation, until (x) 10 business days after the
Corporation notifies the Investors in writing of such issuance, and (y) if
the Investors shall have notified the Corporation within 10 business days
after their receipt of a written notification of such issuance that the
Investors, pursuant to the option granted to the Investors by Section 3.02
of the Governance Agreement, intend to acquire a sufficient amount of
Voting Securities within such 90-day period referred to therein, so that
the Investors will collectively Beneficially Own at least 15% of the Total
Voting Power of the Corporation determined in accordance with Section 17(d)
by the end of such 90-day period, during the 90-day period following an
issuance of Voting Securities by the Corporation that causes the Investors
to collectively Beneficially Own less than 15% of the Total Voting Power of
the Corporation as so determined:
(a) any merger, consolidation, acquisition or other business
combination involving the Corporation or any Subsidiary of the Corporation
(other than a Buyout Transaction) if the value of the consideration to be
paid or received by the Corporation and/or its stockholders in any such
individual transaction or in such transaction when added to the aggregate
value of the consideration paid or received by the Corporation in all other
such transactions approved by the Board of Directors during the immediately
preceding 12 months exceeds the greater of (x) $150 million or (y) 11% of
the Corporation's total consolidated assets;
(b) any Buyout Transaction; provided, however, that the Investors'
rights pursuant to this clause (b) shall apply only for the 18-month period
following December 19, 2000;
(c) any sale, transfer, assignment, conveyance, lease or other
disposition or any series of related dispositions of any assets, business
or operations of the Corporation or any of its Subsidiaries (other than a
Buyout Transaction) if the value of the assets, business or operations so
disposed during the immediately preceding 12 months exceeds the greater of
(x) $150 million or (y) 11% of the Corporation's total consolidated assets;
(d) any issuance by the Corporation or any Significant Subsidiary
of the Corporation of equity or equity-related securities other than (i)
pursuant to customary employee or director stock option or incentive
compensation or similar plans approved by the Board of Directors or a duly
authorized committee of the Board of Directors, (ii) pursuant to
transactions solely among the Corporation and its wholly owned Subsidiaries
(including any Subsidiaries which would be wholly owned by the Corporation
but for the issuance of directors' or shareholders' qualifying shares),
(iii) upon conversion of convertible securities or upon exercise of
warrants or options, which convertible securities, warrants or options are
either outstanding on December 19, 2000 or approved by the Board or a duly
authorized committee of the Board after December 19, 2000 in accordance
with Section 2.06 of the Governance Agreement, or (iv) in connection with
any mergers, consolidations, acquisitions or other business combinations
involving the Corporation or any Subsidiary of the Corporation which are
approved by the Board or a duly authorized committee of the Board in
accordance with Section 2.06 of the Governance Agreement (if applicable)
and for which the consideration received by the Corporation for such
transactions during the immediately preceding 12 months exceeds the greater
of (x) $150 million or (y) 11% of the Corporation's total consolidated
assets; provided, however, that during the 12 month period following
December 19, 2000, neither the Corporation nor any Subsidiary of the
Corporation may issue shares of Common Stock in a registered public
offering under the Securities Act in a private placement or otherwise
without the approval of a majority of the Investors' Directors unless the
aggregate number of shares issued during this 12 month period does not
exceed 6,900,000 and the offering price of such shares is unanimously
approved by a pricing committee of the Board of Directors, such committee
consisting solely of one Investors' Director, the Chairman of the Board and
one additional Independent Director (selected by the Independent
Directors).
21. NONEXCLUSIVITY. The Investor's rights under Sections 14, 15, 16, 17,
18, 19, and 20 shall not be deemed exclusive of any rights related to
similar matters to which the Investors may be entitled under these Bylaws,
the Certificate of Incorporation, any agreement (including the Governance
Agreement) or otherwise.
22. QUORUM AND REQUIRED VOTE. A majority of the directors then in office
shall constitute a quorum for the transaction of business, provided that
unless the authorized number of directors is one, the number constituting a
quorum shall not be less than the greater of one-third of the authorized
number of directors or two directors. Except as otherwise provided by the
Certificate of Incorporation or these Bylaws, every act or decision done or
made by a majority of the directors present at a meeting duly held at which
a quorum is present is the act of the Board of Directors. A meeting at
which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for such meeting. A
majority of the directors present at a meeting, whether or not a quorum is
present, may adjourn the meeting to another time and place.
23. REMOVAL. Except as provided in the Certificate of Incorporation and in
Section 16 hereof, a director may be removed from office at any time, with
or without cause, by the affirmative vote of the holders of a majority of
the outstanding shares entitled to vote at an election of directors. No
reduction in the number of directors shall have the effect of removing any
director prior to the expiration of his term.
24. RESIGNATION. Any director may resign by giving written notice to the
Chairman of the Board, the Chief Executive Officer, the Secretary or the
Board of Directors. Such resignation shall be effective when given unless
the notice specifies a later time. The resignation shall be effective
regardless of whether it is accepted by the Corporation.
25. COMPENSATION. If the Board of Directors so resolves, the directors,
including the Chairman of the Board, shall receive compensation and
expenses of attendance at meetings of the Board of Directors and committees
of the Board of Directors. Nothing herein shall preclude any director from
serving the Corporation in another capacity and receiving compensation for
such service.
26. COMMITTEES. Subject to Section 19, the Board of Directors may, by
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors,
to serve at the pleasure of the Board of Directors. In the absence or
disqualification of any member of a committee of the Board of Directors,
the other members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may, subject to
Section 19, unanimously appoint another member of the Board of Directors to
act in the place of such absent or disqualified member. The Board of
Directors may, subject to Section 19, designate one or more directors as
alternate members of a committee who may replace any absent member at any
meeting of the committee. To the extent permitted by resolution of the
Board of Directors, a committee may exercise all of the authority of the
Board of Directors to the extent permitted by Section 141(c) of the GCL.
27. TIME AND PLACE OF MEETINGS AND TELEPHONE MEETINGS. Immediately
following each annual meeting of stockholders (or at such other time and
place as may be determined by the Board of Directors), the Board of
Directors shall hold a regular meeting for purposes of organizing the Board
of Directors, electing officers, appointing committees and transacting
other business. The Board of Directors may establish by resolution the
times, if any, that other regular meetings of the Board of Directors shall
be held. All meetings of directors shall be held at the principal executive
office of the Corporation or at such other place, whether within or without
the State of Delaware, as shall be designated in the notice for the meeting
or in a resolution of the Board of Directors. Directors may participate in
a meeting through use of conference telephone or similar communications
equipment, so long as all directors participating in such meeting can hear
each other.
28. CALL. Meetings of the Board of Directors, whether regular or special,
may be called by the Chairman of the Board, the Chief Executive Officer,
the Secretary or any two directors.
29. NOTICE. Regular meetings of the Board of Directors may be held without
notice if the date and time of such meetings have been fixed by the Board
of Directors. Special meetings shall be held upon four days' notice by
mail, 24 hours notice delivered personally or by telephone, telegraph or
confirmed fax or on such shorter notice as the person or persons calling
such meeting may deem necessary or appropriate under the circumstances.
Regular meetings shall be held upon similar notice if notice is required
for such meetings. Neither a notice nor a waiver of notice need specify the
purpose of any regular or special meeting. Notice sent by mail, telegram or
fax shall be addressed to a director at his business or home address/fax
number as shown upon the records of the Corporation, or at such other
address/fax number as the director specifies in writing delivered to the
Corporation, or if such an address/fax number is not so shown on such
records and no written instructions have been received from the director,
at the place at which meetings of directors are regularly held. Such
mailing, telegraphing, delivery or transmittal, as above provided, shall be
due, legal and personal notice to such director. If a meeting is adjourned
for more than 24 hours, notice of the adjourned meeting shall be given
prior to the time of such meeting to the directors who were not present at
the time of the adjournment.
30. MEETING WITHOUT REGULAR CALL AND NOTICE. The transaction of business at
any meeting of the Board of Directors, however called and noticed or
wherever held, is as valid as though transacted at a meeting duly held
after regular call and notice if a quorum is present and if, either before
or after the meeting, each of the directors not present signs a written
waiver of notice, a consent to holding the meeting or an approval of the
minutes of the meeting. For such purposes, a director shall not be
considered present at a meeting if, although in attendance at the meeting,
the director protests the lack of notice prior to the meeting or at its
commencement.
31. ACTION WITHOUT MEETING. Any action required or permitted to be taken by
the Board of Directors may be taken without a meeting, if all of the
members of the Board of Directors individually or collectively consent in
writing to such action. In addition, all directors (including those who are
not members of a particular committee) shall receive notice of, and shall
be entitled to attend, all meetings of any committee of the Board of
Directors. Only those directors who are members of a particular committee
shall be entitled to vote at meetings thereof.
32. COMMITTEE MEETINGS. The principles set forth in Sections 27 through 31
of these Bylaws shall also apply to committees of the Board of Directors
and to actions taken by such committees.
33. HONORARY ADVISORS TO THE BOARD. The Board of Directors may appoint one
or more Honorary Advisors, who shall hold such position for such period,
shall have such authority and perform such duties as the Board of Directors
may specify, subject to change at any time by the Board of Directors. An
Honorary Advisor to the Board of Directors shall not be a director for any
purpose or with respect to any provision of the Certificate of
Incorporation, these Bylaws or of the GCL, and shall have no vote as a
director. However, an Honorary Advisor to the Board of Directors may
receive such compensation and expense reimbursement as the Board of
Directors shall from time to time determine.
OFFICERS
34. TITLES AND RELATION TO BOARD OF DIRECTORS. The officers of the
Corporation shall include a Chief Executive Officer, a President, a
Secretary and a Treasurer. The Board of Directors may also choose a
Chairman of the Board, one or more Vice Chairmen of the Board, a Chief
Operating Officer, a Chief Financial Officer, a General Counsel, and one or
more Vice Presidents (who may be designated Executive or Senior Vice
Presidents), Assistant Secretaries, Assistant Treasurers or other officers.
All officers shall perform their duties and exercise their powers subject
to the direction of the Chief Executive Officer and the overriding
direction of the Board of Directors. If there shall occur a vacancy in any
office, in the absence of the appointment of a replacement by the Board of
Directors, the Chief Executive Officer shall have the right and power to
appoint a Secretary, a Treasurer, a Chief Operating Officer, a Chief
Financial Officer, a General Counsel, one or more additional Vice
Presidents (who may be designated Executive or Senior Vice Presidents), one
or more Assistant Secretaries and one or more Assistant Treasurers, all of
whom shall serve at the pleasure of the Board of Directors, and shall
perform their duties and exercise their powers subject to the direction of
the Chief Executive Officer and the overriding direction of the Board of
Directors. Any number of offices may be held simultaneously by the same
person.
35. ELECTION, TERM OF OFFICE AND VACANCIES. At its regular annual meeting,
the Board of Directors shall choose the officers of the Corporation. No
officer need be a member of the Board of Directors except the Chairman of
the Board and the Chief Executive Officer. The officers shall hold office
until their successors are chosen, except that the Board of Directors may
remove any officer at any time. Subject to Section 34 of these Bylaws, if
an office becomes vacant for any reason, the vacancy shall be filled by the
Board of Directors.
36. RESIGNATION. Any officer may resign at any time upon written notice to
the Corporation without prejudice to the rights, if any, of the Corporation
under any contract to which the officer is a party. Such resignation shall
be effective when given unless the notice specifies a later time. The
resignation shall be effective regardless of whether it is accepted by the
Corporation.
37. COMPENSATION. The Board of Directors shall fix the compensation of the
Chairman of the Board, any Vice Chairman, the Chief Executive Officer and
the President and may fix the salaries of other employees of the
Corporation including the other officers. If the Board of Directors does
not fix the salaries of the other officers, the Chief Executive Officer
shall fix such salaries.
38. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if present,
preside at all meetings of the Board of Directors, and exercise and perform
such other powers and duties as may be from time to time assigned to him by
the Board of Directors or prescribed by these Bylaws.
39. CHIEF EXECUTIVE OFFICER. Unless otherwise determined by the Board of
Directors, the Chief Executive Officer shall be deemed general manager of
the Corporation. The Chief Executive Officer shall be the Chairman of the
Board, shall be entitled to attend all meetings of the Board of Directors
and any committees thereof and shall effectuate orders and resolutions of
the Board of Directors and exercise such other powers and perform such
other duties as the Board of Directors shall from time to time prescribe.
40. PRESIDENT AND VICE PRESIDENTS. In the absence or disability of the
Chief Executive Officer and Chairman of the Board, the President, and in
the absence or disability of the President, the Vice President (who may be
designated Executive or Senior Vice President), if any, or if more than
one, the Vice Presidents (who may be designated Executive or Senior Vice
Presidents) in order of their rank as fixed by the Board of Directors or,
if not so ranked, the Vice President (who may be designated Executive or
Senior Vice President) designated by the Board of Directors, shall perform
all the duties of the Chief Executive Officer, and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
Chief Executive Officer. The President and Vice Presidents (who may be
designated Executive or Senior Vice Presidents) shall have such other
powers and perform such other duties as from time to time may be prescribed
for them by the Board of Directors or these Bylaws.
41. SECRETARY. The Secretary (or in his absence an Assistant Secretary or,
if there be no Assistant Secretaries, another person designated by the
Board of Directors) shall have the following powers and duties:
(a) Record of Corporate Proceedings. The Secretary shall attend all
meetings of the Board of Directors and its committees and shall record all
votes and the minutes of such meetings in a book to be kept for that
purpose at the principal executive office of the Corporation or at such
other place as the Board of Directors may determine. The Secretary shall
keep at the Corporation's principal executive office the original or a copy
of these Bylaws, as amended from time to time.
(b) Record of Shares. Unless a transfer agent is appointed by the
Board of Directors to keep a share register, the Secretary shall keep at
the principal executive office of the Corporation a share register showing
the names of the stockholders and their addresses, the number and class of
shares held by each, the number and date of certificates issued, and the
number and date of cancellation of each certificate surrendered for
cancellation.
(c) Notices. The Secretary shall give such notices as may be
required by law or these Bylaws.
(d) Additional Powers and Duties. The Secretary shall exercise such
other powers and perform such other duties as the Board of Directors or the
Chief Executive Officer shall from time to time prescribe.
42. TREASURER. Unless otherwise determined by the Board of Directors, the
Treasurer of the Corporation shall be its chief financial officer, and
shall have custody of the corporate funds and securities and shall keep
adequate and correct accounts of the Corporation's properties and business
transactions. The Treasurer shall disburse such funds of the Corporation as
may be ordered by the Board of Directors or by one or more persons
authorized by the Board of Directors, taking proper vouchers for such
disbursements, and when requested shall render to the Chief Executive
Officer, the Board of Directors and, if applicable, the Chief Financial
Officer, an account of all transactions and the financial condition of the
Corporation and shall exercise such other powers and perform such other
duties as the Board of Directors, the Chief Executive Officer or, if
applicable, the Chief Financial Officer shall prescribe.
43. OTHER OFFICERS AND AGENTS. Such other officers and agents as the Board
of Directors may choose shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors. The
Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective
duties and powers.
SHARES
44. CERTIFICATES. Every stockholder shall be entitled to have a certificate
or certificates certifying the number and class of shares of the capital
stock of the Corporation owned by him. All such certificates shall be
signed in the manner prescribed in the GCL. Any signature on such
certificates may be a facsimile signature. The Board of Directors shall
have the power to appoint one or more transfer agents and/or registrars for
the transfer or registration of certificates of stock of any class, and may
require stock certificates to be countersigned or registered by one or more
of such transfer agents and/or registrars.
45. TRANSFERS OF SHARES OF CAPITAL STOCK. Transfers of shares shall be made
only upon the transfer books of the Corporation, kept at the office of the
Corporation or transfer agents and/or registrars designated by the Board of
Directors. Before any new certificate is issued, the old certificate shall
be surrendered for cancellation.
46. STOCKHOLDERS OF RECORD. Only stockholders of record shall be entitled
to be treated by the Corporation as the holders in fact of the shares
standing in their respective names and the Corporation shall not be bound
to recognize any equitable or other claim to or interest in any share of
any other person, whether or not it shall have express or other notice
thereof, except as expressly provided by law.
47. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may cause a new
stock certificate to be issued in place of any certificate previously
issued by the Corporation alleged to have been lost, stolen or destroyed.
The Corporation may, at its discretion and as a condition precedent to such
issuance, require the owner of such certificate to deliver an affidavit
stating that such certificate was lost, stolen or destroyed, or to give the
Corporation a bond or other security sufficient to indemnify it against any
claim that may be made against it, including any expense or liability, on
account of the alleged loss, theft or destruction or the issuance of a new
certificate.
48. STOCKHOLDERS RECORD DATE. In order that the Corporation may determine
the stockholders entitled to notice of and to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled
to 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 a record date, which shall be not more than sixty (60) days nor
less than ten (10) days before the date of such meeting. A determination of
stockholders of record entitled to notice of and 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, and shall fix a new record date for such adjourned
meeting if the adjourned meeting is to take place more than thirty (30)
days from the date set for the original meeting.
49. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation and the GCL, the Board of Directors may, out of funds legally
available therefor, declare dividends upon the stock of the Corporation.
Before the declaration of any dividend, the Board of Directors may set
apart, out of any funds of the Corporation available for dividends, such
sum or sums as from time to time in its discretion may be deemed proper for
working capital or as a reserve fund to meet contingencies or for such
other purposes as shall be deemed conducive to the interests of the
Corporation.
AMENDMENTS
50. ADOPTION OF AMENDMENTS. The Board of Directors is authorized and
empowered from time to time in its discretion to make, alter, amend or
repeal these Bylaws, except as such power may be restricted or limited by
the GCL; provided, however, that the provisions set forth in Sections 14,
16(a)-(d), 17, 18, 19, 20 or this Section 50 shall not be amended or
repealed unless the Investors shall have consented thereto in writing.
Notwithstanding the foregoing, Sections 14, 16(b)-(d), 17, 18, 19, 20 and
the proviso in the preceding sentence of this Section 50 shall be
automatically repealed and cease to have any force or effect on the date
upon which the Investors rights under the Governance Agreement terminate
pursuant to the terms of such agreement.
51. RECORD OF AMENDMENTS. Whenever an amendment or new bylaw is adopted, it
shall be copied in the book to be kept for that purpose at the principal
executive office of the Corporation or at such other place as the Board of
Directors may determine. If any bylaw is repealed, the fact of repeal with
the date of the meeting at which the repeal was enacted or written consent
with respect thereto was filed shall be stated in said book.
CORPORATE SEAL
52. FORM OF SEAL. The corporate seal shall be circular in form, and shall
have inscribed thereon the name of the Corporation, the date of its
incorporation and the word "Delaware".
MISCELLANEOUS
53. CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for payment of
money, notes, or other evidences of indebtedness, issued in the name of or
payable by or to the Corporation, shall be signed or endorsed by the Chief
Executive Officer, the President, the Chief Financial Officer, the
Treasurer or such other person or persons as may from time to time be so
authorized in accordance with a resolution of the Board of Directors.
54. CONTRACTS, ETC.; HOW EXECUTED. Except as otherwise provided in these
Bylaws, the Chairman of the Board (in his capacity as Chief Executive
Officer), the President, any Vice President (who may be designated
Executive or Senior Vice President) or Treasurer, or such other officer or
officers as may from time to time be so authorized in accordance with a
resolution of the Board of Directors, shall have the power and authority to
sign and execute on behalf of the Corporation deeds, conveyances and
contracts, and any and all other documents requiring execution by the
Corporation. The Board of Directors may authorize any other officer or
officers, or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
55. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chief Executive
Officer, the President or any Vice President (who may be designated
Executive or Senior Vice President) or the Secretary or Assistant Secretary
of the Corporation are authorized to vote, represent, and exercise on
behalf of the Corporation all rights incident to any and all shares of any
other corporation or corporations standing in the name of the Corporation.
The authority herein granted to said officers to vote or represent on
behalf of the Corporation any and all shares held by the Corporation in any
other corporation or corporations may be exercised either by such officers
in person or by any other person authorized so to do by proxy or power of
attorney duly executed by said officers.
56. INSPECTION OF BYLAWS. The Corporation shall keep in its principal
office for the transaction of business the original or a copy of these
Bylaws as amended or otherwise altered to date, certified by the Secretary,
which shall be open to inspection by the stockholders at all reasonable
times during office hours.
57. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
58. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise requires,
the general provisions, rules and construction, and definitions contained
in the GCL shall govern the construction of these Bylaws. Without limiting
the generality of the foregoing, the masculine gender includes the feminine
and neuter, the singular number includes the plural and the plural number
includes the singular, and the term "person" includes a corporation or
other entity or organization as well as a natural person.
59. SEVERABILITY. If any provision of these Bylaws is determined to be
invalid, void, illegal or unenforceable, the remaining provisions of these
Bylaws shall continue to be valid and enforceable and shall in no way be
affected, impaired or invalidated thereby.
