By-Law Amendments
The Chairman then recognized Mr. Brenner who directed the Board's attention
to a memorandum dated May 5, 2000 which summarized proposed amendments to the
By-Laws based upon discussions had with Delaware counsel, Richards, Layton &
Finger, in order to bring the By-Laws up to date with Delaware law. After
Mr. Brenner summarized the proposed By-Law amendments and presented to the
Meeting a draft of such By-Law amendments, on motion duly made and seconded,
the following resolution was unanimously adopted by the affirmative vote of
the Directors present:
RESOLVED, that the following Articles and Sections of the By-Laws are
restated to read as follows:
ARTICLE I
Stockholders
SECTION 2. Special Meetings. Except as otherwise provided in the
Certificate of Incorporation, a special meeting of the stockholders of the
Corporation may be called at any time by the Board of Directors, the Chairman
of the Board or the President. Any special meeting of the stockholders shall
be held on such date, at such time, and at such place within or without the
State of Delaware as the Board of Directors or the officer calling the
meeting may designate. At a special meeting of the stockholders, no business
shall be transacted and no corporate action shall be taken other than that
stated in the notice of the meeting unless all of the stockholders are present
in person or by proxy, in which case any and all business may be transacted at
the meeting even though the meeting is held without notice.
SECTION 5. Adjourned Meetings. Whether or not a quorum shall be present in
person or represented at any meeting of the stockholders, the holders of a
majority in number of the shares of stock of the Corporation present in
person or represented by proxy and entitled to vote at such meeting may
adjourn from time to time; provided, however, that if the holders of any class
of stock of the Corporation are entitled to vote separately as a class upon
any matter at such meeting, any adjournment of the meeting in respect of
action by such class upon such matter shall be determined by the holders of a
majority of the shares of such class present in person or represented by proxy
and entitled to vote at such meeting. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the stockholders or the holders of any class
of stock entitled to vote separately as a class, as the case may be, may
transact any business which might have been transacted by them at the
original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting.
SECTION 9. Consent of Stockholders in Lieu of Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required by law to be
taken at any annual or special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action
so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon
were present and voted and shall be delivered to the Corporation by delivery
to (a) its registered office in the State of Delaware by hand or by certified
or registered mail, return receipt requested, (b) its principal place of
business, or (c) an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this by-law to the
Corporation, written consents signed by a sufficient number of holders to
take action are delivered to the Corporation by delivery to (a) its
registered office in the State of Delaware by hand or by certified or
registered mail, return receipt requested, (b) its principal place of
business, or (c) an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have
not consented in writing and who, if the action had been taken at a meeting,
would have been entitled to notice of the meeting if the record date for such
meeting had been the date that written consents signed by a sufficient number
of stockholders to take the action were delivered to the Corporation as
provided in this Section 9.
SECTION 10. Advance Notice of Stockholder Nominees for Director and Other
Stockholder Proposals.
(a) The matters to be considered and brought before any annual or special
meeting of the stockholders of the Corporation shall be limited to only such
matters, including the nomination and election of directors, as shall be
brought properly before such meeting in compliance with the procedures set
forth in this Section 10.
(b) For any matters to be properly brought before any annual meeting of
stockholders, the matter must be (i) specified in the notice of annual meeting
given by or at the direction of the Board of Directors, (ii) otherwise
brought before the annual meeting by or at the direction of the Board of
Directors or (iii) brought before the annual meeting in the manner specified
in this Section 10(b) by a stockholder of record entitled to vote at the
annual meeting. In addition to any other requirements under applicable
law and the Certificate of Incorporation and By-Laws of the Corporation,
persons nominated by stockholders of record for election as directors of the
Corporation and any other proposals by stockholders of record shall be properly
brought before the meeting only if notice of any such matter to be presented
by a stockholder at such meeting of stockholders (the "Stockholder Notice")
shall be delivered to the Secretary of the Corporation at the principal
executive office of the Corporation not less than ninety (90) nor more than
one hundred and twenty (120) days prior to the first anniversary date of
the annual meeting for the preceding year; provided, however, if and only if
the annual meeting is not scheduled to be held within a period that
commences thirty (30) days before such anniversary date and ends thirty (30)
days after such anniversary date (an annual meeting date outside such period
being referred to herein as an "Other Annual Meeting Date"), such Stockholder
Notice shall be given in the manner provided herein by the later of the close
of business on (i) the date ninety (90) days prior to such Other Meeting Date
or (ii) the tenth (10th) day following the date such Other Annual Meeting Date
is first publicly announced or disclosed. Any stockholder of record desiring
to nominate any person or persons (as the case may be) for election as a
director or directors of the Corporation shall deliver, as part of such
Stockholder Notice: (i) a statement in writing setting forth (A) the name of
the person or persons to be nominated; (B) the number and class of all shares
of each class of stock of the Corporation owned of record and beneficially by
each such person, as reported to such stockholder by such nominee(s); (C) the
information regarding each such person required by paragraphs (a), (e), and
(f) of Item 401 of Regulation S-K or paragraph (b) of Item 22 of Rule 14a-101
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
adopted by the Securities and Exchange Commission (or the corresponding
provisions of any regulation or rule subsequently adopted by the Securities
and Exchange Commission applicable to the Corporation); (D) whether such
stockholder believes any nominee will be an "interested person" of the
Corporation (as defined in the Investment Company Act of 1940, as amended)
and, if not an "interested person", information regarding each nominee
that will be sufficient for the Corporation to make such determination;
(E) a representation whether the stockholder intends or is part of a group
which intends to (1) deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the Corporation's outstanding stock
required to elect the nominee and/or (2) otherwise solicit proxies from
stockholders in support of such nomination and (F) the number and class of
all shares of each class of stock of the Corporation owned of record and
beneficially by such stockholder; and (ii) each such person's signed
consent to serve as a director of the Corporation if elected and such
stockholder's name and address. Any stockholder who gives a Stockholder
Notice of any matter proposed to be brought before the meeting (not
involving nominees for director) shall deliver, as part of such
Stockholder Notice, the text of the proposal to be presented and a brief
written statement of the reasons why such stockholder favors the
proposal and setting forth such stockholder's name and address, the number
and class of all shares of each class of stock of the Corporation owned of
record and beneficially by such stockholder, if applicable, any material
interest of such stockholder in the matter proposed (other than as a
stockholder), and a representation whether the stockholder intends or is
part of a group which intends to (1) deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the Corporation's
outstanding stock required to approve or adopt the proposal with respect to
which the proxy statement is being distributed and/or (2) otherwise solicit
proxies from stockholders in support of such proposal. As used herein,
shares "beneficially owned" shall mean all shares which such person is deemed
to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Exchange Act.
If a stockholder of record is entitled to vote only for a specific class or
category of directors at a meeting (annual or special), such stockholder's
right to nominate one or more individuals for election as a director at the
meeting shall be limited to such class or category of directors.
Notwithstanding anything in this Section 10(b) to the contrary, in the event
that the number of directors to be elected to the Board of Directors of the
Corporation at the next annual meeting is increased and either all of the
nominees for director at the next annual meeting or the size of the increased
Board of Directors are not publicly announced or disclosed by the
Corporation at least seventy (70) days prior to the first anniversary of
the preceding year's annual meeting, a Stockholder Notice shall also be
considered timely hereunder, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary
of the Corporation at the principal executive office of the Corporation not
later than the close of business on the tenth (10th) day following the first
date all of such nominees or the size of the increased Board of Directors
shall have been publicly announced or disclosed.
(c) Except as provided in the immediately following sentence, only such
matters shall be properly brought before a special meeting of stockholders as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of Directors, any stockholder of record entitled to vote at the special
meeting may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the Corporation's notice of meeting, if
the Stockholder Notice required by Section 10(b) shall be delivered to the
Secretary of the Corporation at the principal executive office of the
Corporation not later than the close of business on the tenth (10th) day
following the day on which the date of the special meeting and either the
names of the nominees proposed by the Board of Directors to be elected at
such meeting or the number of directors to be elected is publicly announced
or disclosed.
(d) For purposes of this Section 10, a matter shall be deemed to have been
"publicly announced or disclosed" if such matter is disclosed in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission.
(e) In no event shall the adjournment of an annual meeting or special
meeting, or any announcement thereof, commence a new period for giving of
notice as provided in this Section 10. This Section 10 shall not apply to
stockholder proposals made pursuant to Rule 14a-8 under the Exchange Act.
(f) The person presiding at any meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a meeting has been duly given
in the manner provided in this Section 10 and, if not so given, shall direct
and declare at the meeting that such nominees and other matters shall not be
considered.
ARTICLE II
Board of Directors
SECTION 2. Removal, Vacancies and Additional Directors. Upon the vote of
the stockholders of at least three-quarters of the shares entitled to vote
thereon, the stockholders may, at any special meeting the notice of which
shall state that is called for that purpose, remove, only for cause, any
Director and fill the vacancy; provided that whenever any Director shall
have been elected by the holders of any class of stock of the Corporation
voting separately as a class under the provisions of the Certificate of
Incorporation, such Director may be removed only for cause and the vacancy
filled only by the vote of the holders of at least three-quarters of the
shares of that class of stock voting separately as a class. Vacancies caused
by any such removal and not filled by the stockholders at the meeting at which
such removal shall have been made, or any vacancy caused by the death or
resignation of any Director or for any other reason, and any newly created
directorship resulting from any increase in the authorized number of Directors,
may be filled by the affirmative vote of a majority of the Directors then in
office, although less than a quorum, and any Director so elected to fill any
such vacancy or newly created directorship shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
When one or more Directors shall resign effective at a future date, a majority
of the Directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective, and each
Director so chosen shall hold office as herein provided in connection with the
filling of other vacancies.
ACTICLE IV
Stock; Seal; Fiscal Year
SECTION 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in
writing without a meeting or entitled to receive payment of any dividend or
other distribution or allotment of any 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, as the case may be, the Board of
Directors may fix, in advance, a record date, which shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting,
nor more than sixty (60) days prior to any other action.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held; the record date for determining
stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed;
and the record date for determining stockholders for any other purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 6. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors shall have power to declare and pay
dividends upon shares of stock of the Corporation, but only out of funds
available for the payment of dividends as provided by law.
Subject to the provisions of the Certificate of Incorporation any dividends
declared upon the stock of the Corporation shall be payable on such date or
dates as the Board of Directors shall determine. If the date fixed for the
payment of any dividend shall in any year fall upon a legal holiday, then the
dividend payable on such date shall be paid on the next day not a legal holiday.
ARTICLE V
Miscellaneous Provisions
SECTION 3. Waivers of Notice. Whenever any notice is required to be given
by law, by the Certificate of Incorporation or by these By-Laws to any person
or persons, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
SECTION 6. Advancement of Expenses. The Corporation shall, to the full
extent authorized by law, advance expenses to any person made or threatened to
be made party to an action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his testator
or intestate is or was a director, officer, employee or agent of the
Corporation or is or was serving, at the request of the Corporation, as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise.
SECTION 7. Accountant.
(a) The Corporation shall employ an independent public
accountant or a firm of independent public accountants as its Accountant to
examine the accounts of the Corporation and to sign and certify financial
statements filed by the Corporation. The Accountant's certificates and
reports shall be addressed both to the Board of Directors and to the
stockholders. The employment of the Accountant shall be conditioned upon
the right of the Corporation to terminate the employment forthwith without
any penalty by vote of a majority of the outstanding voting securities at any
Stockholder's meeting called for that purpose.
ARTICLE VI
Custodian
SECTION 2. The Corporation shall upon the resignation, change or inability
to serve of its custodian (and any sub-custodian):
(i) in case of such resignation or inability to serve, use its best
efforts to obtain a successor custodian;
(ii) require that the cash and securities owned by the Corporation be
delivered directly to the successor custodian; and
(iii) in the event that no successor custodian can be found, submit to
the stockholders before permitting delivery of the cash and
securities owned by the Corporation, other than to a successor
custodian, the question whether or not this Corporation shall be
liquidated or shall function without a custodian.
ARTIVLE VII
Amendments
These By-Laws and any amendment thereof may be altered, amended or repealed, or
new By-Laws may be adopted, by the Board of Directors at any regular or special
meeting by the affirmative vote of a majority of all the members of the Board;
provided, however, that in the case of any special meeting at which all of the
members of the Board are not present, the notice of such meeting shall state
that the amendment of these By-Laws was one of the purposes of the meeting.
However, these By-Laws and any amendment thereof, including the By-Laws
adopted by the Board of Directors, may be altered, amended, or repealed and
other By-Laws may be adopted by the holders of at least 75% of the total
outstanding stock of the Corporation entitled to vote at any annual meeting or
at any special meeting, provided, in the case of any special meeting, that
notice of such proposed alteration, amendment, repeal or adoption is included
in the notice of the meeting.
