Exhibit 3
Amended through June 30, 2000
SBC COMMUNICATIONS INC.
Incorporated under the Laws of the State of Delaware, October 5, 1983
Bylaws
Article I
Stockholders
Section 1. Annual Meeting
An annual meeting of the stockholders, for the election of Directors to
succeed those whose terms expire and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, on such
date, and at such time as the Board of Directors shall fix each year.
Section 2. Special Meeting
Special meetings of the stockholders may be called at any time, either by
the Board of Directors or by the Chairman of the Board, and the Chairman of the
Board shall call a special meeting whenever requested in writing to do so by
stockholders representing two-thirds of the shares of the corporation, then
outstanding, and entitled to vote at such meeting. This request must specify the
time, place and object of the proposed meeting. Only such business as is
specified in the notice may be conducted at a special meeting of the
stockholders.
Section 3. Notice of Meetings
Written notice of all meetings of the stockholders shall be given to
each stockholder entitled to vote at such meeting not less than ten
(10) nor more than sixty (60) days before the date on which the
meeting is to be held. The notice shall state the place, date and hour
of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. If mailed, such notice shall
be deemed to be delivered when deposited in the United States mail
with postage thereon prepaid, addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation.
Any previously scheduled meeting of the stockholders may be postponed
by resolution of the Board of Directors upon public notice given prior
to the time previously scheduled for such meeting of stockholders.
When a meeting is adjourned to another place, date, or time,
written notice need not be given of the meeting when reconvened, if
the place, date, and time thereof are announced at the meeting at
which the adjournment is taken. If the date of the meeting to be
reconvened is more than thirty (30) days after the date for which
notice of the meeting was originally given or if a new record date is
fixed for the meeting, written notice of the place, date and time of
the meeting to be reconvened shall be given in conformity herewith. At
any reconvened meeting, any business may be transacted that might have
been transacted at the original meeting.
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Section 4. Quorum
At any meeting of the stockholders, the holders of forty percent
(40%) of all of the shares of the stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum for
the transaction of business.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of the stock
entitled to vote who are present, in person or by proxy, may adjourn
the meeting to another place, date, or time.
Section 5. Organization
The Chairman of the Board, or a Director or officer as the
Chairman of the Board may designate, shall act as chairman of the
stockholders' meeting. The chairman of the meeting shall designate an
officer to act as a secretary for the meeting in the absence of the
corporation's Secretary.
Section 6. Proxies and Voting
At any meeting of the stockholders, every stockholder entitled to
vote may vote in person or by proxy.
Each holder of common stock shall have one vote for every share
of stock that is registered in the stockholder's name on the record
date for the meeting.
All voting may be by a voice vote, provided that upon demand of a
stockholder entitled to vote in person or by proxy, a recorded vote of
all shares of stock at the meeting shall be taken.
Directors shall be elected by a plurality of the votes cast. All
other matters shall be determined by a majority of the votes cast,
unless a greater number is required by law or the Certificate of
Incorporation for the action proposed.
Section 7. Nomination of Directors
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as Directors. Nomination of
persons for election to the Board of Directors may be made at any
annual meeting of stockholders (a) by or at the direction of the Board
of Directors or any duly authorized committee thereof or (b) by any
stockholder of the corporation entitled to vote for the election of
Directors at the annual meeting. In addition to any other applicable
requirements, a nomination made by a stockholder shall be pursuant to
timely notice in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be
received at the principal executive offices of the corporation not
less than one hundred twenty (120) days nor more than one hundred
fifty (150) days prior to the date of the annual meeting; provided,
however, that in the event that less than one hundred thirty (130)
days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder must be
received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as Director (i) the name, age,
business address, and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class or
series and number of shares of capital stock of the corporation which
are owned beneficially or of record by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations of proxies for election of Directors pursuant to Section
14 of the Securities Exchange Act of 1934, as amended, and (b) as to
the stockholder giving the notice (i) the name and record address of
such stockholder, (ii) the class or series and number of shares of
capital stock of the corporation which are owned beneficially or of
record by such stockholder, and (iii) any other information relating
to such stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitation of proxies for the election of Directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended. Such
notice 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.
No person shall be eligible for election as a Director of the
corporation unless nominated in accordance with the procedures set
forth in this Section 7. If the Chairman determines that a nomination
was not made in accordance with the foregoing procedure, the Chairman
shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
Section 8. Conduct of Annual Meeting
No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the meeting by or at
the direction of the Board of Directors (or any duly authorized
committee thereof), or (c) otherwise properly brought before the
meeting by a stockholder as of the record date for the determination
of stockholders entitled to vote at such annual meeting. In addition
to any other applicable requirements for business to be properly
brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the
Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
received at the principal executive offices of the corporation not
less than one hundred twenty (120) days nor more than one hundred
fifty (150) days prior to the date of the annual meeting; provided,
however, that in the event that less than one hundred thirty (130)
days' notice or prior public disclosure of the date of the annual
meeting is given or made to the stockholders, notice by the
stockholder must be received not later than the close of business on
the tenth day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of
the annual meeting was made, whichever first occurs.
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To be in proper written form, stockholder's notice to the
Secretary must set forth, as to each matter such stockholder proposes
to bring before the annual meeting, (i) 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, (ii) the
name and record address of such stockholder, (iii) the class or series
and number of shares of capital stock of the corporation which are
owned beneficially or of record of such stockholder, and (iv) any
material interest of the stockholder in such business.
No business shall be conducted at the annual meeting of
stockholders except in accordance with the procedures set forth in
this Section 8; provided, however, that nothing in this Section 8
shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting. If the Chairman
determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the business was not brought
properly before the meeting and such business shall not be transacted.
Article II
Board of Directors
Section 1. Number and Terms of Office
The business and affairs of the corporation shall be under the
direction of a Board of Directors.
The number of Directors shall be not more than twenty-five (25),
as determined by a majority vote of the total number of Directors then
serving in office, provided, however, that such maximum number of
Directors may be reduced (but not thereafter raised) to a maximum
number of not less than twenty-one (21) Directors by a majority vote
of the total number of Directors then serving in office.
Directors shall be divided into three classes designated as Group
A, Group B, and Group C. The three classes of Directors shall each
consist of an equal number of Directors or a number of Directors as
nearly equal as possible. When the total number of Directors is
divided by three and one remains, the Director remaining shall be
assigned to Group A. When the total number of Directors is divided by
three and two remain, they shall be assigned one to Group A and one to
Group B. The number of Directors in any one class may not exceed the
number of Directors in any other class by more than one, except as may
result from the phasing-in of a decrease in Directors under Section 2
of this Article II.
The Board of Directors appointed by the incorporators shall serve
until the first stockholders' meeting. At the first meeting of
stockholders after organization of the corporation, Directors to serve
in Group A shall be elected to a term of one year; Directors to serve
in Group B shall be elected to a term of two years; and Directors to
serve in Group C shall be elected to a full term of three years.
Thereafter, at each annual meeting of the stockholders, Directors
shall be elected to a full term of three years to succeed those in the
Director group whose terms expire at that annual meeting.
Section 2. Increases and Decreases in Directors
The Board of Directors may increase or decrease the number of
Directors, subject to the maximum limits provided in Section 1 of this
Article II, by a vote of a majority of the total number of Directors.
Any vacancies created by an increase in the number of Directors shall
be filled as provided in Section 3 of this Article II and be
distributed among the Director groups in accordance with Section 1 of
this Article II. Any decrease in the authorized number of Directors
shall be phased in by reducing the number of Directors in the first
Director group whose terms expire subsequent to the decrease to the
number required to be in that group by Section 1 of this Article II at
the end of the phasing-in period, and by similarly reducing the number
of Directors in the other Director groups upon expiration of their
terms, so that when the terms of Directors in all three Director
groups have successively expired subsequent to the decrease, each
Director group shall have the distribution of Directors required by
Section 1 of this Article II of these Bylaws.
Section 3. Vacancies
If the position of any Director is or becomes vacant, a majority
of the Directors then remaining in office may appoint a successor to
serve until the next annual election of the class in which such
Director served.
Section 4. Regular Meetings
Regular meetings of the Board of Directors shall be held at such
place or places, on such date or dates, and at such time or times as
shall be established by the Board of Directors. A notice of each
regular meeting shall not be required.
Section 5. Special Meetings
Special meetings of the Board of Directors may be called by
one-third of the Directors or by the Chairman of the Board and shall
be held at such place, on such date, and at such time as the Directors
calling the meeting or the Chairman of the Board shall fix. Notice of
a special meeting shall be given to each Director in any of the
following ways: in person, by telephone or by delivery of a written
notice or facsimile communication to the Director's business or
residence. Notice given in writing or by facsimile communication to
the Director's business or residence must be delivered at least
twenty-four (24) hours before such meeting. Notice given by telephone
or in person shall be given at least twelve (12) hours prior to the
time set for the meeting. Neither the business to be transacted at,
nor the purpose of, any meeting of the Board of Directors need be
specified in the notice of such meeting. A written waiver of any
notice, signed by a Director, whether before or after the time of the
event for which notice is to be given, shall be equivalent to the
notice required to be given to such person.
Section 6. Quorum
At any meeting of the Board of Directors, a majority of the total
number of the Directors shall constitute a quorum.
Section 7. Committees of the Board of Directors
The corporation elects to be governed by the provisions of
Section 141(c)(2) of the General Corporation Law of the State of
Delaware, as amended effective July 1, 1996. The Board of Directors
may from time to time designate committees of the Board of Directors,
with such lawfully delegable powers and duties as it thereby confers,
to serve at the pleasure of the Board of Directors and shall elect a
Director or Directors to serve as the member or members, designating,
if it desires, other Directors as alternate members who may replace
any absent or disqualified members at any meeting of the committee.
Any committee so designated may exercise the power and authority of
the Board of Directors as permitted by law. In the absence or
disqualification of any member of any committee and any alternate
member designated to replace such member, the members of the committee
present at the meeting and not disqualified from voting may by
unanimous vote appoint another member of the Board of Directors to act
at the meeting in the place of the absent or disqualified member.
Meetings of a committee may be set by the committee or may be called
by one-third of the Directors then serving on the committee, the
chairman of the committee, or the Chairman of the Board and shall be
held at such place, on such date, and at such time as the person or
persons calling the meeting shall fix. Notice of a committee meeting
shall be given to a Director in any of the following ways: in person,
by telephone or by delivery of a written notice or facsimile
communication to the Director's business or residence. Notice given in
writing or by facsimile communication to the Director's business or
residence must be delivered at least twenty-four (24) hours before
such meeting. Notice given by telephone or in person shall be given at
least twelve (12) hours prior to the time set for the meeting. Neither
the business to be transacted at, nor the purpose of, any meeting of a
committee need be specified in the notice of such meeting. A written
waiver of any notice, signed by a Director, whether before or after
the time of the event for which notice is to be given, shall be
equivalent to the notice required to be given to such person. No
notice is required if a committee meeting is set by the committee.
If not otherwise fixed by the Board of Directors, the number of
members making up a committee shall equal the number of Directors then
serving on the committee from time to time. At any meeting of a
committee, a majority of the number of Directors then serving on the
committee shall constitute a quorum.
Each committee may determine procedural rules for the conduct of
its meetings and business, and shall act in accordance therewith,
unless otherwise provided by the Board of Directors in the resolution
establishing the committee.
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Article III
Officers of the Company
Section 1. Generally
The officers of the corporation shall consist of a Chairman of
the Board, a President, one or more Vice Presidents, a Secretary, a
Treasurer, and a Vice President-Chief Financial Officer appointed by
the Board of Directors. The Board of Directors may also appoint one or
more Assistant Secretaries, Assistant Treasurers, and such other
officers and agents as the Board of Directors may desire. Officers
shall be appointed by the Board of Directors at its first meeting
after every annual meeting of stockholders. Each officer or agent
appointed by the Board of Directors shall hold office until a
successor is elected and qualified or until such person's earlier
resignation or removal. Any number of offices may be held by the same
person.
Section 2. Duties of the Chairman of the Board
The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors.
Unless otherwise directed by the Board of Directors, the Chairman
of the Board, or such other officer or agent as the Chairman of the
Board may designate, shall have authority to vote and otherwise act on
behalf of the corporation, in person or by proxy, at any meeting of
stockholders, or with respect to any action of stockholders of any
other corporation in which this corporation may hold securities, and
otherwise to exercise any and all rights and powers that this
corporation may possess by reason of its ownership of securities in
any other corporation.
Section 3. Duties of the President
The President shall perform the duties as usually pertain to the
office and such other duties as may from time to time be assigned.
Section 4. Duties of Vice Presidents
Each Vice President shall perform the duties as usually pertain
to the office to which appointed and such other duties as may from
time to time be assigned.
Section 5. Duties of Secretary and Assistant Secretaries
The Secretary shall make a record of the proceedings of all
meetings of the stockholders, Board of Directors and any
committee of Directors, in books to be kept for that purpose. The
Secretary shall also give and publish all necessary notices of
all meetings, have custody of the corporate seal and affix it
when authorized, and preserve and keep all general contracts,
papers and documents. In general, the Secretary shall perform all
duties incident to the office of Secretary and such other duties
as from time to time may be assigned.
Each Assistant Secretary shall perform such duties of the
Secretary as may from time to time be assigned.
Section 6. Duties of Treasurer and Assistant Treasurers
The Treasurer shall have charge of all monies, funds and
securities which may come into the Treasurer's possession,
maintain deposits of the corporation's monies and funds in such
depositories as the Board of Directors, the Chairman of the Board
or the President shall approve, make disbursements of such monies
and funds under direction of the Board of Directors, the Chairman
of the Board, or the President, keep an account of all receipts
and disbursements, and make such reports as may be required. The
Treasurer shall also maintain a record of the outstanding shares
of stock in the corporation, a stock transfer record and a list
of the stockholders of the corporation. In general, the Treasurer
shall perform all duties incident to the office of Treasurer and
such other duties as from time to time may be assigned.
Each Assistant Treasurer shall perform such duties of the
Treasurer as may from time to time be assigned.
Section 7. Duties of the Vice President-Chief Financial Officer
The Vice President-Chief Financial Officer shall be the principal
officer in charge of the accounts of the corporation and shall perform
all duties incident to the office of Vice President-Chief Financial
Officer and such other duties as from time to time may be assigned.
Section 8. Delegation of Authority
The Board of Directors may from time to time assign or delegate
the powers, authorities or duties of the Chairman of the Board, the
President or any officer or agent to any other officers or agents,
notwithstanding any provision hereof.
Article IV
Indemnification
The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (including
any action or suit by or in the right of the corporation) by reason of
the fact that such person is or was a Director, officer or employee of
the corporation, or, while such person is or was a Director, officer
or employee of the corporation, such person is or was serving at the
request of the corporation as a Director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit, or proceeding,
but in each case only if and to the extent permitted under applicable
state or federal law.
The indemnification provided herein shall not be deemed exclusive
of any other rights to which those indemnified may be entitled, and
shall continue as to a person who has ceased to be a Director,
officer, employee, or agent, and shall inure to the benefit of the
heirs and personal representatives of such a person.
Article V
Stock
Section 1. Stock Certificates; Uncertificated Shares
The shares of the corporation shall be represented by
certificates, provided that the Board of Directors of the corporation
may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any
such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the corporation.
Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon
request every holder of uncertificated shares shall be entitled to
have a certificate signed by, or in the name of the corporation by the
Chairman or Vice-Chairman of the Board of Directors, or the President
or Vice-President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of such corporation
representing the number of shares registered in certificate form. Any
or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the
same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Section 2. Transfers of Stock
Transfers of stock shall be made only on the stock transfer record of
the corporation and upon surrender of the certificate previously issued
therefor which is outstanding and not canceled, except in the case of
uncertificated shares.
Section 3. Transfer on Death Directions
At the request of a stockholder residing in a state that permits
transfer on death directions by law, the Treasurer shall record on the
stockholder's certificate, or, in the case of uncertificated shares, upon
the account statements evidencing the shares, a direction to transfer the
stockholder's interest in the corporation to a person designated by the
stockholder on death of the stockholder. The Treasurer shall execute such
direction upon proof of death of the stockholder, surrender of the
outstanding certificate with the direction written thereon, and under such
regulations as may be prescribed by the Treasurer.
Article VI
Business Combinations
Section 1. Vote Required for Certain Business Combinations
A. In addition to any vote of stockholders required by law or these
Bylaws, and except as otherwise expressly provided in Section 2 of this
Article VI, any Business Combination (as hereinafter defined) shall require
the affirmative vote of the holders of at least 662/3 percent of the then
outstanding shares of capital stock of the corporation entitled to vote
generally in the election of Directors (the "Voting Stock"), voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
B. The term "Business Combination" shall mean:
i. Any merger or consolidation of the corporation or any
subsidiary (as hereinafter defined) with (a) any
Interested Stockholder (as hereinafter defined) or (b) any
other corporation which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of
an Interested Stockholder; or
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ii. Any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in either one or in a series of transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the corporation or any
subsidiary having an aggregate Fair Market Value (as hereinafter
defined) of $10,000,000 or more; or
iii. The issuance or transfer by the corporation or any subsidiary (in
either one or in a series of transactions) of any
securities of the corporation or any subsidiary to any
Interested Stockholder or any Affiliate of any Interested
Stockholder for cash, securities or other property (or a
combination thereof) having an aggregate Fair Market Value
of $10,000,000 or more; or
iv. The adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate of any Interested
Stockholder; or
v. Any reclassification of securities (including any reverse
stock split), or recapitalization of the corporation, or
any merger or consolidation of the corporation with any of its
subsidiaries or any other transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the corporation or any
subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder.
Section 2. Exceptions to Vote Required by Section 1
The provisions of Section 1 of this Article VI shall not be applicable
to any particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law and any other
provision of these Bylaws, if:
A. The Business Combination is approved by a majority of the Continuing
Directors (as hereinafter defined); or
B. All of the following conditions are met:
i. The aggregate amount of the cash and the Fair Market Value of
any consideration other than cash as of the date of the
consummation of the Business Combination to be received per
share by holders of common stock in such Business Combination
or by holders of shares of any other class of outstanding
Voting Stock shall be at least equal to the highest amount
determined under sub-clauses (a), (b), and (c) below:
a. The highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any
shares of common stock acquired by it (1) within the
two-year period immediately prior to the first public
announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested Stockholder,
whichever is higher; and
b. The Fair Market Value per share of common stock on the
day after the Announcement Date or on the date on
which the Interested Stockholder became an Interested
Stockholder, whichever is higher; and
c. The price per share equal to the Fair Market Value per
share of common stock determined pursuant to paragraph
B(i)(b) above, multiplied by the ratio of (1) the highest
per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of common
stock it acquired within the two-year period immediately
prior to the Announcement Date to (2) the Fair Market Value
per share of common stock on the first day in such two-
year period upon which the Interested Stockholder
acquired any shares of common stock; and
ii. The consideration to be received by holders of a particular
class of outstanding Voting Stock shall be in cash or in the
same form as the Interested Stockholder has previously paid
for shares of such class of Voting Stock. If the Interested
Stockholder has paid for shares of any class of Voting Stock
with varying forms of consideration, the form of
consideration for such class of Voting Stock shall be either
cash or the form of consideration used by the Interested
Stockholder to acquire the largest number of shares of such
class of Voting Stock previously acquired by it; and
iii. After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
a. Except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and
pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any outstanding
preferred stock; and
b. There shall have been (1) no reduction in the annual
rate of dividends paid on the common stock (except as
necessary to reflect any subdivision of the common stock),
except as approved by a majority of the Continuing
Directors, and (2) an increase in such annual rate of
dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the
effect of reducing the number of outstanding shares of
the common stock, unless the failure so to increase such
annual rate is approved by a majority of the Continuing
Directors; and
c. Such Interested Stockholder shall have not become the
beneficial owner of any additional shares of Voting
Stock except as part of the transaction which resulted
in such Interested Stockholder becoming an Interested
Stockholder; and
iv. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to the stockholders of
the corporation at least thirty (30) days prior to the
consummation of such Business Combination, whether or not
such proxy or information statement is required pursuant thereto.
Section 3. Definitions
For the purposes of this Article VI:
A. A "person" shall mean any individual, firm, corporation or other entity.
B. "Interested Stockholder" shall mean any person (other than the
corporation or any subsidiary (as hereinafter defined) and other than any
profit sharing, thrift, employee stock ownership, retirement or other
employee benefit plan of the corporation or any subsidiary of any trustee
of or fiduciary with respect to any such plan when acting in such capacity)
who or which:
i. Is the beneficial owner (as hereinafter defined), directly
or indirectly, of more than 10 percent (10%) of any shares of the
Voting Stock of the corporation; or
ii. Is an Affiliate (as hereinafter defined) of the corporation
and at any time within the two-year period immediately prior
to the date in question was the beneficial owner, directly or
indirectly, of 10 percent (10%) or more of any shares of the
Voting Stock of the corporation; or
iii. Is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially
owned by any Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction
or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
C. A person shall be deemed a "beneficial owner" of any shares of Voting
Stock:
i. Which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or
indirectly; or
ii. Which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants, or
options or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
iii. Which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
D. "Affiliate" or "Associate" shall have the same meanings set forth
for such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on March 1, 1983.
E. "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph B of this Section 3, the term
"subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
corporation.
F. "Continuing Director" means any member of the Board of Directors of
the corporation who is unaffiliated with the Interested Stockholder and was
a member of the Board prior to the time that the Interested Stockholder
became an Interested Stockholder and any successor of a Continuing Director
who is unaffiliated with the Interested Stockholder and is recommended or
elected to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
G. "Fair Market Value" means: (1) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date
in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock during the
30-day period preceding the date in question on the National Association of
Securities Dealers, Inc., Automated Quotations System or any system then in
use, or if no such quotations are available, the fair market value on the
date in question of a share of such stock as determined by the majority of
the Continuing Directors in good faith; and (2) in the case of property
other than cash or stock, the fair market value of such property on the
date in question as determined by a majority of the Continuing Directors in
good faith.
H. In the event of any Business Combination in which the corporation
survives, the phrase "any consideration other than cash" as used in
paragraph B(i) of Section 2 of this Article VI shall include the shares
of common stock and/or the shares of any other class of outstanding Voting
Stock retained by the holders of such shares.
Section 4. Certain Determinations
The Continuing Directors of the corporation shall have the power and duty
to determine for the purposes of this Article VI, on the basis of information
known to them after reasonable inquiry: (a) whether a person is an Interested
Stockholder; (b) the number of shares of Voting Stock beneficially owned by any
person; (c) whether a person is an Affiliate or Associate of another person; and
(d) whether the assets which are the subject of any Business Combination have,
or the consideration to be received for the issuance or transfer of securities
by the corporation or any subsidiary in any Business Combination has, an
aggregate Fair Market Value of $10,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders
Nothing contained in this Article VI shall be construed to relieve any
Interested Stockholder from any fiduciary obligation otherwise imposed by law.
<PAGE>
Article VII
Miscellaneous
Section 1. Facsimile Signatures
In addition to the provision for the use of facsimile signatures on stock
certificates as provided in Section 1 of Article V, facsimile signatures of any
officer or officers of the corporation may be used whenever and as authorized by
the Board of Directors.
Section 2. Corporate Seal
The Board of Directors shall provide a suitable seal for the corporation
that contains the name of the corporation and the state of incorporation, which
seal shall be kept by the Secretary.
Section 3. Fiscal Year
The fiscal year of the corporation shall be identical with the calendar
year unless otherwise established by the Board of Directors.
Section 4. Time Periods
In applying any provision of these Bylaws which requires that an act be
done or not be done in a specified number of days prior to an event, or that an
act be done during a period of a specified number of days prior to an event,
calendar days shall be used. The day of the doing of the act shall be excluded
and the day of the event shall be included.
Article VIII
Amendments
These Bylaws may be amended or repealed in accordance with the Certificate
of Incorporation by the Board of Directors at any meeting or by the stockholders
at any meeting.
