SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (date of earliest event reported): March 15, 1999
PARK ELECTROCHEMICAL CORP.
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(Exact Name of Registrant as Specified in Its Charter)
New York 1-4415 11-1734643
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(State or other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
5 Dakota Drive, Lake Success, New York 11042
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(Address of Principal Executive Offices) (Zip Code)
(516) 354-4100
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Registrant's Telephone Number,
Including Area Code
N/A
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Former Name or Former Address, if Changed Since Last Report
Exhibit Index is on Page 4
Page 1 of 20 Pages<PAGE>
Item 5 Other Events.
On March 15, 1999, the Board of Directors of Park
Electrochemical Corp. (the "Company") adopted amendments to its
By-Laws. The amendments to the By-Laws require stockholders to
provide the Company with not less than 90 days nor more than 120
days (rather than not less than 60 days nor more than 90 days)
notice prior to the anniversary date of the immediately
preceding annual meeting of their intention to make nominations
of directors or bring new business at annual meetings of stock-
holders.
Item 7 Financial Statements, Pro Forma Financial Information
and Exhibits.
3(i) By-Laws of the Company, as amended March 15, 1999.
3(ii) Form of amendment to the By-Laws, dated March 15,
1999.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
PARK ELECTROCHEMICAL CORP.
Date: March 15, 1999 By:/s/ Stephen E. Gilhuley
Name: Stephen E. Gilhuley
Title: Secretary<PAGE>
EXHIBIT INDEX
Exhibit Description Page
3(i) By-laws of the Company, as amended 5
March 15, 1999.
3(ii) Form of amendment to the By-laws, 19
dated March 15, 1999.
<PAGE>
Exhibit 3(i)
BY-LAWS
OF
PARK ELECTROCHEMICAL CORP.
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of
the Corporation shall be in the City and State of New York.
Section 2. Other Offices. The Corporation may also
have offices at such other place or places within and without
the State of New York as the Board of Directors may from time
to time determine or the business of the Corporation may re-
quire.
ARTICLE II
STOCKHOLDERS' MEETINGS
Section 1. Annual Meetings. The annual meeting of
shareholders of the Corporation shall be held on the fourth
Wednesday in June of each year (or if said day be a legal holi-
day, then on the next succeeding day not a legal holiday), at
ten o'clock A.M., at the principal office of the Corporation in
the State of New York, or at such other place within or without
the State of New York and at such other time and on such other
date as may be determined by the Board of Directors and as
shall be designated in the notice of said meeting, for the
purpose of electing directors and for the transaction of such
other business as may properly be brought before the meeting.
Section 2. Special-Meetings. Special Meetings of the
stockholders shall be held at the principal office of the
Corporation in the State of New York, or at such other place
within the State of New York as may be designated in the notice
of said meeting, by resolution of the Board of Directors, and
shall be called by the Chairman of the Board, the President or
the Secretary at the request in writing of stockholders owning
of record at least eighty percent (80%) of the issued and
outstanding shares of stock of the Corporation entitled to vote
thereat.
Section 3. Notice of Purpose of Meetings. Written
notice of the purpose or purposes and of the time and place of
every meeting of shareholders shall be given by the Chairman of
the Board, the President, the Secretary or an Assistant Secre-
tary either personally or by mail or by any other lawful means
of communication not less than ten nor more than fifty days
before the meeting to each shareholder of record entitled to
vote at such meeting. If mailed, such notice shall be directed
to each shareholder at his address as it appears on the stock
book unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed
or transmitted to the address designated in such request.
Except where otherwise required by law, notice of any adjourned
meeting of the shareholders of the Corporation shall not be
required to be given.
Section 4. Quorum. A quorum at all meetings of stock-
holders shall consist of the holders of record of a majority of
the shares of stock of the Corporation, issued and outstanding,
entitled to vote at the meeting, present in person or by proxy,
except as otherwise provided by law or by the Certificate of
Incorporation. In the absence of a quorum at any meeting or
any adjournment thereof, a majority of those present in person
or by proxy and entitled to vote may adjourn such meeting from
time to time. At any such adjourned meeting at which a quorum
is present any business may be transacted which might have been
transacted at the meeting as originally called.
Section 5. Organization. Meetings of the stockholders
shall be presided over by the Chairman of the Board, or if he
is not present, by the President, or if neither the Chairman of
the Board nor the President is present, by any Vice President,
or in the absence of such officers, by a chairman to be chosen
by a majority of the stockholders entitled to vote who are
present in person or by proxy at the meeting. The Secretary of
the Corporation, or in his absence, an Assistant Secretary,
shall act as secretary of every meeting, but if neither the
Secretary nor an Assistant Secretary is present, the meeting
shall choose any person present to act as secretary of the
meeting.
Section 6. Voting. Except as otherwise provided in the
Certificate of Incorporation or by law, at every meeting of the
stockholders each stockholder of record entitled to vote at
such meeting shall have one vote in person or by proxy for each
share-of stock having voting rights held by him and registered
in his name on the books of the Corporation. Any vote on
shares of stock of the Corporation may be given by the stock-
holder entitled thereto in person or by his proxy appointed by
an instrument in, writing, subscribed by such stockholder or by
his attorney thereunto authorized and delivered to the secre-
tary of the meeting. Except as otherwise required by law, by
the Certificate of Incorporation or these By-Laws, all matters
coming before any meeting of the stockholders shall be decided
by the vote of the holders of a majority of the shares of stock
present in person or by proxy at such meeting, a quorum being
present. At all elections of directors the voting may but need
not be by ballot.
Section 7. Inspectors of Election. At all elections of
directors, or in any other case in which inspectors may act,
two inspectors of election shall be appointed by the chairman
of the meeting, except as otherwise provided by law. The
inspectors of election shall take and subscribe an oath
faithfully to execute the duties of inspectors at such meeting
with strict impartiality, and according to the best of their
ability, and shall take charge of the polls and after the vote
shall have been taken shall make a certificate of the result
thereof, but no director or candidate for the office of
director shall be appointed as such inspector. If there be a
failure to appoint inspectors or if any inspector appointed be
absent or refuse to act, or if his office become vacant, the
stockholders present at the meeting may choose the required
number of temporary inspectors.
Section 8. Fixing Record Date. For the purpose of
determining the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or
to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining the shareholders
entitled to receive payment of any dividend or the allotment of
any rights, or for the purpose of any other action, the Board
of Directors may fix, in advance, a date as the record date for
any such determination of shareholders. Such date shall not be
more than fifty nor less than ten days before the date of such
meeting, nor more than fifty days prior to any other action.
Section 9. Notice of Stockholder Nominees. Only per-
sons who are nominated in accordance with the following proce-
dures set forth in these By-Laws shall be eligible for election
as directors of the Corporation. Nominations 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 (i) who is a stockholder
of record on the date of the giving of the notice provided for
in this Section 9 and on the record date for the determination
of stockholders entitled to vote at such annual meeting and
(ii) who complies with the notice procedures set forth in this
Section 9.
In addition to any other applicable requirements, for
a nomination to be made 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 delivered to or mailed and received at the principal
executive offices of the Corporation not less than ninety (90)
days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that 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 day on which notice of the date of the annual meeting was
mailed or 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 a director (i)
the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the per-
son, (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 would be required to be disclosed in a proxy
statement or other filings required to be made in connection
with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; 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, (iii) a description of all arrangements or
understandings between such stockholder and each proposed
nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting
to nominate the persons named in its notice and (v) 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 solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each pro-
posed nominee to be named as a nominee and to serve as a direc-
tor 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 9. If the Chairman of the
annual meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall
declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
Section 10. Notice of Stockholder Business. No busi-
ness 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
annual meeting by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (c) otherwise
properly brought before the annual meeting by any stockholder
of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section
10 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies
with the notice procedures set forth in this Section 10.
In addition to any other applicable requirement, 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 Corpora-
tion.
To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than ninety (90)
days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that 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 day on which notice of the date of the annual meeting was
mailed or 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 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 by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any
other person or persons (including their names) in connection
with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (v)
a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business
before the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting
in accordance with the procedures set forth in this Section 10,
provided, however, that, once business has been properly
brought before the annual meeting in accordance with such
procedures, nothing in this Section 10 shall be deemed to
preclude discussion by any stockholder of any such business.
If the Chairman of an annual meeting determines that business
was not properly brought before the annual meeting in accor-
dance with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Powers, Number, Qualification, Term, Quorum,
Vacancies. The property, affairs and business of the Corpo-
ration shall be managed by its Board of Directors, consisting
of not less than five nor more than fifteen persons. The exact
number of directors within the maximum and minimum limitations
specified shall be fixed from time to time by resolution of the
Board of Directors. Directors need not be stockholders of the
Corporation. All directors shall be of full age and at least
one shall be a citizen of the United States and a resident of
the State of New York. Directors shall be elected at the
annual meeting and until their successors, shall be elected and
shall qualify.
Section 2. Quorum. A majority of the members of the
Board of Directors then in office, acting at a meeting duly
assembled, shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there
shall be less than a quorum present, a majority of those
present may adjourn the meeting without further notice from
time to time until a quorum shall have been obtained. Any act
of a majority of directors present at a meeting at which there
is a quorum shall be the act of the Board of Directors, except
as otherwise specifically provided in the By-Laws.
Section 3. Vacancies. In case one or more vacancies
shall occur on the Board of Directors by reason of death,
resignation, increase in the number of directors or otherwise,
except insofar as otherwise provided in these By-Laws, the
remaining directors, although less than a quorum, may, by a
majority vote, elect successor or additional directors. A
person so elected shall serve only until the next annual
meeting of stockholders and until his successor shall be
elected and shall qualify.
Section 4. Meetings. Meetings of the Board of Direc-
tors shall be held at the principal office of the Corporation
or at such other place or places within or outside the State of
New York as may be specified in the notice of the meeting.
Regular meetings of the Board of Directors shall be held at
such times as may from time to time be fixed by resolution of
the Board of Directors, and special meetings may be held at any
time upon the call of the Chairman of the Board or the Presi-
dent or any two directors by oral, telegraphic or written
notice duly served on or sent or mailed to each director not
less than two days before such meeting. A meeting of the Board
of Directors may be held without notice immediately after the
annual meeting of stockholders. Notice need not be given of
regular meetings of the Board of Directors when fixed by
resolution as above set forth. Meetings may be held at any
time without notice if all the directors are present, or if at
any time before or after the meeting those not present waive
notice of the meeting in writing.
Section 5. Removal of Directors. At any special meet-
ing of the stockholders, duly called as provided in these By-
Laws, any director or directors may, by the affirmative vote of
the holders of a majority of the shares of stock issued and
outstanding and entitled to vote for the election of directors,
be removed from office for cause, and his successor or their
successors may be elected at such meeting; or the remaining
directors may, to the extent vacancies are not filled by such
election, fill any vacancy or vacancies created by such
removal. Stockholders may not remove directors without cause.
Section 6. Executive Committee. An Executive Committee
of three or more directors may be designated by resolution
passed by a majority of the whole Board of Directors. The act
of a majority of the members of said Committee shall be the act
of the Committee, and said Committee may meet at stated times
or on notice. Whenever the Board of Directors is not in
session or whenever a quorum of the Board of Directors fails to
attend any regular or special meeting of the Board, said
Committee shall advise with and aid the officers of the
Corporation in all matters concerning its interests and the
management of its business and affairs, and generally perform
such duties and exercise such powers as may be performed and
exercised by the Board of Directors from time to time, and the
Executive Committee shall have the power to authorize the seal
of the Corporation to be affixed to all papers which may
require it and, insofar as may be permitted by law, exercise
the powers and perform the obligations of the Board of Direc-
tors. The Board of Directors may also designate one or more
committees in addition to the Executive Committee by resolution
or resolutions passed by a majority of the whole Board of
Directors; such committee or committees to consist of three or
more directors of the Corporation, and, to the extent provided
in the resolution or resolutions designating them, shall have
or may exercise the specific powers of the Board of Directors
in the management of the business and affairs of the Corpo-
ration. Such committee or committees shall have such name or
names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section 7. Compensation of Directors. Directors may by
resolution-of the Board of Directors, be allowed a fixed sum
and expenses for attendance at regular or special meetings of
the Board of Directors; provided that nothing herein contained
shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees, and
others who attend pursuant to direction, may, by vote of the
Board of Directors be allowed a like fixed sum and expenses for
attending committee meetings.
Section 8. Action by Written Consent in lieu of
Meeting. Any action required or permitted to be taken by the
Board of Directors of the Corporation or of any committee
thereof may be taken without a meeting if all members of the
Board of Directors or of any committee thereof consent in
writing to the adoption of a resolution authorizing the action.
Section 9. Action by Conference Call. Any one or more
members of the Board of Directors of the Corporation or of any
committee thereof may participate in a meeting of said Board or
of any such committee by means of a conference telephone or
similar communications equipment allowing all persons partici-
pating in the meeting to hear each other at the same time.
ARTICLE IV
OFFICERS
Section 1. Election. The Board of Directors at its
meeting held immediately after the annual meeting of stock-
holders shall elect a Chairman of the Board, a President, one
or more Vice Presidents, a Secretary and a Treasurer. From
time to time the Board of Directors may appoint such Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers
and such other officers, agents and employees as it may deem
proper. Any two offices may be held by the same person. The
Chairman of the Board and the President shall be chosen from
among the directors.
Section 2. Term and Removal. The term of office of all
officers shall be one year and until their respective suc-
cessors are elected and qualify but any officer may be removed
from office either with or without cause at any time by the
affirmative vote of a majority of the members of the Board of
Directors then in office. A vacancy in any office arising from
any cause may be filled by the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the Board of Directors
and stockholders. He shall be the principal executive officer
of the Corporation and as such shall have general management
and control of the business and affairs of the Corporation.
Section 4. President. The President shall, in the
absence of the Chairman of the Board, preside at all meetings
of the Board of Directors and stockholders. He shall have such
other duties and powers as may be assigned to him from time to
time by the Board of Directors.
Section 5. Vice Presidents. The Vice Presidents shall
have such powers and discharge such duties as may be assigned
to them from time to time by the Board of Directors.
Section 6. Treasurer. The Treasurer shall have the
custody of all the funds and securities of the Corporation.
When necessary or proper he shall endorse on behalf of the Cor-
poration, for collection, checks, notes and other obligations
and shall deposit the same to the credit of the Corporation in
such bank or banks, or depositories as may be designated by the
Board of Directors, or by any officer acting under authority
conferred by the Board of Directors. Whenever required by the
Board of Directors, he shall render an account of all his
transactions as Treasurer and of the financial condition of the
Corporation. He shall give bond for the faithful discharge of
his duties if the Board of Directors so requires. He shall do
and perform such other duties as may be assigned to him from
time to time by the Board of Directors.
Section 7. Secretary. The Secretary shall attend all
meetings of the stockholders and all meetings of the Board of
Directors, and record all votes and the minutes of all proceed-
ings in a book to be kept for that purpose; and shall perform
like duties for other committees when so required. He shall
give, or cause to be given, notice of all meetings of stock-
holders and of the Board of Directors and of committees and
shall perform such other duties as may be prescribed by the
Board of Directors. He shall keep in safe custody the seal of
the Corporation and affix the same to any instrument whose
execution has been authorized. He shall do and perform such
other duties as may be assigned to him from time to time by the
Board of Directors.
Section 8. Assistant Officers. The Assistant Vice
Presidents, the Assistant Secretaries and the Assistant Trea-
surers shall, in the order of their respective seniorities, in
the absence or disability of the Vice Presidents, Secretary or
Treasurer, respectively, perform the duties of such officer and
shall perform such other duties as the Board of Directors may
from time to time prescribe.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form and Transfers. The interest of each
stockholder of the Corporation shall be evidenced by certifi-
cates for shares of stock certifying the number of shares
represented thereby and in such form, not inconsistent with the
Certificate of Incorporation, as the Board of Directors may
from time to time prescribe.
The certificates of stock shall be signed by the
Chairman of the Board or the President or a Vice President and
by the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer, and sealed with the seal of the
Corporation. Such seal may be a facsimile, engraved or
printed. Where any such certificate is signed by a transfer
agent, or by a transfer clerk and registrar, the signature of
the Chairman of the Board, President, Vice President, Secre-
tary, Assistant Secretary, Treasurer or Assistant Treasurer
upon such certificate may be facsimiles, engraved or printed.
In case any such officer who has signed or whose facsimile
signature has been placed upon such certificate shall have
ceased to be such before such certificate is issued, it may be
issued by the Corporation with the same effect as if such
officer had not ceased to be such at the time of its issue.
Transfers of shares of stock of the Corporation shall
be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of
the Corporation, or with a transfer clerk or a transfer agent
appointed as in section 4 of this Article provided, and on sur-
render of the certificate or certificates for such shares prop-
erly endorsed and the payment of all taxes thereon. The person
in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes
as regards the Corporation. The Board of Directors may, from
time to time, make such additional rules and regulations as it
may deem expedient, not inconsistent with these By-Laws,
concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
Section 2. Lost, Stolen, Destroyed, or Mutilated
Certificates. No certificate for shares of stock of the Corpo-
ration shall be issued in place of any certificate alleged to
have been lost, destroyed or stolen, except on production of
such evidence of such loss, destruction or theft as the Board
of Directors may require and on delivery to the Corporation, if
the Board of Directors shall so require, of a bond of indemnity
in such amount, containing such terms and secured by such
surety as the Board of Directors may in its discretion require.
The Board of Directors shall have the right from time to time
to prescribe such rules and procedures as it shall deem
advisable with regard to lost, stolen, destroyed or mutilated
certificates and the issuance of new shares of this Corporation
in place thereof.
Section 3. Transfer Agent and Registrar. The Board of
Directors may appoint one or more registrars, and may require
all certificates for shares of stock to bear the signature or
signatures of any of them.
ARTICLE VI
CORPORATE SEAL
The corporate seal of the Corporation shall consist of
two concentric circles, between which shall be the name of the
Corporation, and in the center shall be inscribed the year of
its incorporation and the words, "Corporate Seal, New York."
ARTICLE VII
AMENDMENTS
These By-Laws may be amended, altered or repealed or
additional By-Laws adopted at any meeting of the Board of
Directors by the vote of a majority of the directors then in
office. These By-Laws, and any amendments thereto and new By-
Laws added by the directors may be amended, altered or repealed
by the stockholders at any annual or special meeting of the
stockholders provided notice of such action shall have been
contained in the notice of meeting.
ARTICLE VIII
INDEMNIFICATION
Section 1. Definitions. "Action"' shall mean any
threatened, pending or completed legal action, lawsuit or pro-
ceeding, whether civil, criminal, administrative or inves-
tigative, including without limitation any action by or in the
right of the Corporation to procure a judgment in its favor.
"Indemnitee" shall mean a person who was or is a party,
or is threatened to be made a party, to an Action by reason of
the fact that such person (or such person's testator or
intestate, in which case both such person and his testator or
intestate shall be deemed the Indemnitee) is or was or has
agreed to become a director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the
Corporation as a director, officer or trustee of or in a
similar capacity with another corporation, partnership, joint
venture, trust, plan or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity.
"Costs" shall mean all amounts actually paid by or on
behalf of an Indemnitee (i) on account of judgments, fines and
penalties incurred in connection with an Action, or (ii) in
settlement of an Action.
"Expenses" shall mean all expenses actually and
reasonably incurred by or on behalf of an Indemnitee in
connection with an Action, whether or not the Indemnitee is
successful on the merits, including without limitation,
expenses of investigation, judicial or administrative pro-
ceedings and appeals, attorneys' fees and disbursements, and
expenses of establishing or defending a right to indemnifica-
tion under this Article.
"Act" shall mean Sections 721 through 726 of the
Business Corporation Law of the State of New York or any
comparable provisions of New York law hereafter enacted
applicable to the Corporation.
Section 2. Indemnification and Advances of Expenses.
The Corporation shall indemnify each Indemnitee against all
Costs and Expenses of each Action, unless such indemnification
shall be expressly prohibited by Section 721 of the Act, or
unless the Action (other than an Action instituted pursuant to
Section 3 of this Article VIII) shall have been initiated by
the Indemnitee without the authorization of the Board of
Directors of the Corporation. Expenses for which indemni-
fication is sought under this Article shall be paid by the
Corporation in advance of any final disposition of the Action
at the written request of an Indemnitee, provided that the
Indemnitee shall undertake to repay amounts advanced to the
extent that a court of competent jurisdiction ultimately
determines that the Indemnitee was not entitled to such
indemnification. Except to the extent prohibited by law,
advances of Expenses shall be paid without reference to the
Indemnitee's financial ability to make repayment, no security
shall be required therefor, and such advances shall not under
any circumstances be claimable against the Indemnitee's spouse,
children, estate, heirs, executors or administrators. The
Board of Directors may, by a majority vote of a quorum consist-
ing of directors who are not parties to an Action, and upon
approval of an Indemnitee, authorize the Corporation's counsel
to represent the Indemnitee in an Action.
Section 3. Procedure for Indemnification. Any indem-
nification or advance of Expenses under Section 2 of this Arti-
cle shall be made promptly, and in any event within 45 days
following the written request of the Indemnitee, unless a
determination that the Indemnitee is not entitled to indemnifi-
cation because he has not met the applicable standard of
conduct expressly required by Section 721 of the Act is made
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who are not parties to such Action, or
(2) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested directors so directs, by indepen-
dent legal counsel in a written opinion, or (3) by the share-
holders. The right to indemnification and advances of Expenses
under this Article shall be enforceable by the Indemnitee in
any court of competent jurisdiction if the Corporation denies
such request, in whole or in part, or if no disposition thereof
is made within 45 days. It shall be a defense to any such
action (other than an action brought to enforce a claim for the
advance of Expenses where the required undertaking, if any, has
been received by the Corporation) that the Indemnitee has not
met the applicable standard of conduct expressly required by
the Act, but the burden of proving such defense shall be on the
Corporation and neither (i) the termination of any Action by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, nor (ii) any determination
pursuant to the first sentence of this Section 2, shall, of
itself, create a presumption that the Indemnitee did not act in
accordance with such standard of conduct.
Section 4. Other Rights and Continuation of Right to
Indemnification. The indemnification provided by this Article
shall not be exclusive of all other rights to which an Indemni-
tee seeking indemnification is entitled under any law (common
or statutory), agreement, resolution of shareholders or
directors or otherwise, and nothing contained in this Article
shall limit the right to indemnification or advancement of
expenses to which any person would be entitled from the
Corporation in lieu of, in addition to or in the absence of
this Article. The Corporation is hereby expressly authorized
to grant other rights of indemnification or advancement of
expenses by resolution of shareholders or directors, agreement
or otherwise. The indemnification provided by this Article
shall continue as to an Indemnitee who has ceased to be a
director, officer, trustee, committee member, employee or
agent, and shall inure to the benefit of the estate, heirs,
executors and administrators of each Indemnitee.
Section 5. Insurance. The Corporation shall purchase
and maintain insurance on behalf of any person who is or was or
has agreed to become a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a
director, officer or trustee of or in a similar capacity with
another corporation, partnership, joint venture, trust, plan or
other enterprise against any liability asserted against such
person and incurred by such person or on such person's behalf
in any such capacity, or arising out of such persons's status
as such, whether or not the Corporation would have the power to
indemnify such person under the provisions of this Article
VIII, provided that such insurance is available on terms
acceptable to a majority of the entire Board of Directors of
the Corporation.
Section 6. Contractual Rights; Conflicts. The provi-
sions of this Article VIII shall constitute a contract between
the Corporation and each Indemnitee, pursuant to which the
Corporation and each such Indemnitee intend to be legally
bound. No repeal or modification of this Article VIII shall
affect any rights or obligations then existing or thereafter
arising with respect to any state of facts then or theretofore
existing. In the event any rights under this Article VIII are
expressly prohibited by any provision of Article XIV of the
Corporation's Certificate of Incorporation as in effect on the
date this Article VIII is adopted, such provision of the
Corporation's Certificate of Incorporation shall be controlling
unless subsequently amended to eliminate such prohibition.
Section 7. Severability. If this Article VIII or any
portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Corporation shall neverthe-
less indemnify each Indemnitee as to Costs and Expenses and
make advancements thereof to the fullest extent permitted by
any applicable portion of this Article VIII that shall not have
been invalidated and to the fullest extent permitted by the
Act.
[8kexh1.299]8k
Exhibit 3(ii)
FORM OF AMENDMENT TO THE BY-LAWS
DATED MARCH 15, 1999
1. The Corporation's By-Laws are hereby amended by
amending and restating the third paragraph of Section 9 of
Article II thereof in its entirety as follows:
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than ninety (90) days nor more than one hundred
twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders;
provided, however, that in the event that 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 day on which notice of the date of the
annual meeting was mailed or public disclosure of the date
of the annual meeting was made, whichever first occurs.
2. The Corporation's By-Laws are hereby amended by
amending and restating the third paragraph of Section 10 of
Article II thereof in its entirety as follows:
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than ninety (90) days nor more than one hundred
twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; pro-
vided, however, that in the event that 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 day on which notice of the date of the
annual meeting was mailed or public disclosure of the date
of the annual meeting was made, whichever first occurs.
[8kexh2.299]8k
