SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------------------------
AMENDMENT No. 1 ON FORM 10-Q/A
(mark one)
[ X ] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Quarter Ended October 3, 1998.
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
Commission File Number 1-8002
THERMO ELECTRON CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 04-2209186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
81 Wyman Street, P.O. Box 9046
Waltham, Massachusetts 02454-9046
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (781) 622-1000
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes [ X ] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of Common Stock, as of the latest practicable date.
Class Outstanding at October 30, 1998
----------------------------- -------------------------------
Common Stock, $1.00 par value 158,834,186
<PAGE>
THERMO ELECTRON CORPORATION
PART II - OTHER INFORMATION
Item 6 - Exhibits
(a) Exhibits
See Exhibit Index on page immediately preceding exhibits.
2
<PAGE>
SIGNATURES
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 thereunto duly authorized as of the 19th day of November 1998.
THERMO ELECTRON CORPORATION
Paul F. Kelleher
-------------------------------
Paul F. Kelleher
Senior Vice President, Finance
and Administration
3
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- -----------------------------------------------------------------------------
3 By-laws of the Registrant, as amended.
Exhibit 3
As amended and effective as of September 24, 1998
THERMO ELECTRON CORPORATION
BY-LAWS
TABLE OF CONTENTS
Title Page
Article I - Offices 1
Article II - Stockholders 1
Section 1.Annual Meeting 1
Section 2.Special Meetings 1
Section 3.Notice of Meetings 1
Section 4.Quorum 2
Section 5.Voting 2
Section 6.Presiding Officer and Secretary 2
Section 7.Proxies 2
Section 8.Judges 2
Section 9.List of Stockholders 3
Article III- Directors 3
Section 1.Number, Election and Tenure 3
Section 2.Vacancies 3
Section 3.Resignations 4
Section 4.Meetings 4
Section 5.Quorum 4
Section 6.Compensation of Directors 4
Section 7.Committees 5
<PAGE>
Title Page
Article IV - Officers and Agents 5
Section 1.General Provisions 5
Section 2.The Chief Executive Officer
Section 3.The President 5
Section 4.Vice Presidents 6
Section 5.Chief Financial Officer 6
Section 6.General Counsel
Section 7.The Treasurer 6
Section 8.The Secretary 6
Section 9.Assistant Treasurer 7
Section 10.Assistant Secretary 7
Section 11.Other Officers 7
Section 12.Delegation of Duties 7
Article V - Capital Stock 7
Section 1.Certificates for Shares 7
Section 2.Transfer of Shares of Stock 7
Section 3.Lost, Stolen or Destroyed Certificates 8
Section 4.Closing of Transfer Books; Record Date 8
Section 5.Maintenance of Stock Ledger 8
Article VI - Seal 9
Article VII - Waiver 9
Article VIII - Checks, Notes, Drafts, etc. 9
Article IX - Amendments 9
<PAGE>
THERMO ELECTRON CORPORATION
BY-LAWS
ARTICLE I - OFFICES
The principal office of the Corporation in the State of Delaware is
located at 100 West Tenth Street in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in charge thereof
is called The Corporation Trust Company. The Corporation may also have offices
at such other places, within or without the State of Delaware, as the Board of
Directors may from time to time determine.
ARTICLE II - STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held in the
Corporation's offices in Waltham, Massachusetts, or at such other place within
or without the State of Delaware, and at such time, as may be specified in the
notice of meeting or waiver thereof, on the second Wednesday in May in each year
or on such other date within six months of the end of the Corporation's fiscal
year as may be fixed by the Board of Directors.
Section 2. Special Meetings. A special meeting of the stockholders of the
Corporation, unless otherwise regulated by statute, may be called by the
Chairman of the Board, the Chief Executive Officer or the President and shall be
called by the Chairman of the Board, the Chief Executive Officer, the President,
the Secretary or an Assistant Secretary when directed to do so by resolution of
the Board of Directors at a duly convened meeting of the Board, or at the
request in writing of a majority of the Board of Directors. Such request shall
state the purpose or purposes of the proposed meeting. On failure of any officer
above specified to call such special meeting when duly requested, the signers of
such request may call such special meeting over their own signatures. Special
meetings shall be held at such place within or without the State of Delaware as
may be specified in the call thereof. Business transacted at all special
meetings shall be confined to the objects stated in the call.
Section 3. Notice of Meetings. Written notice of every meeting of the
stockholders shall be served by the Secretary or an Assistant Secretary, either
personally or by mail upon each stockholder of record entitled to vote at such
meeting, at least ten days before the meeting. If mailed, the notice of a
meeting shall be directed to a stockholder at his last known post office
address. The notice of every meeting of the stockholders shall state the purpose
or purposes for which the meeting is called and the time when and the place
where it is to be held.
Section 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, at any meeting of the stockholders there must be
present in person or by proxy the holders of record of a majority of all shares
of stock issued and outstanding and entitled to vote upon any question to be
considered at the meeting in order to constitute a quorum for the transaction of
any business, but a lesser interest may adjourn the meeting from time to time
without notice other than announcement at the meeting until a quorum be present,
and thereupon any business may be transacted at the adjourned meeting which
might have been transacted at the meeting originally called. Except as otherwise
provided by law, or by the Certificate of Incorporation or by these By-Laws, the
vote of a majority of the shares present and entitled to vote at a meeting shall
decide any question brought before such meeting.
Section 5. Voting. At every meeting of the stockholders, except as may be
otherwise provided in the Certificate of Incorporation or in these By-Laws,
every stockholder of the Corporation entitled to vote thereat shall be entitled
to one vote for each share of stock entitled to vote standing in his name on the
books of the Corporation at the time of the meeting, or, if a record date shall
have been fixed as hereinafter provided, on such record date; but, except where
the transfer books of the Corporation shall have been closed or a record date
shall have been fixed, no share of stock shall be voted on at any election for
directors which shall have been transferred on the books of the Corporation
within 20 days next preceding such election of directors. No person may be
elected a director unless his name shall have first been put before the meeting
or the stockholders by nomination of one of the stockholders. Upon the demand of
any stockholder entitled to vote, the vote for directors, or the vote upon any
question before a meeting, shall be by ballot, but otherwise the method of
voting shall be discretionary with the presiding officer at the meeting.
Section 6. Presiding Officer and Secretary. At all meetings of the
stockholders, the Chairman of the Board of the Corporation, or in his absence
the Chief Executive Officer, the President, or a Vice President or if none be
present, the appointee of the meeting, shall preside. The Secretary of the
Corporation, or in his absence an Assistant Secretary, or if none be present the
appointee of the Presiding Officer of the meeting, shall act as Secretary of the
meeting.
Section 7. Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy, but no proxy shall be voted
on after three years from its date, unless such proxy provides for a longer
period. Every proxy must be executed in writing by the stockholder himself, or
by his duly authorized attorney, and dated, but need not be sealed, witnessed or
acknowledged. Proxies shall be delivered to the Secretary of the Corporation
before the meeting or to the Judges at the meeting.
Section 8. Judges. At each meeting of the stockholders at which the vote
for directors or the vote upon any question before the meeting is taken by
ballot, the polls shall be opened and closed by, and the proxies and ballots
shall be received and taken in charge by, and all questions touching on the
qualifications of voters and the validity of proxies and the acceptance and
rejection of the same shall be decided by two Judges. Such Judges may be
appointed by the Board of Directors before the meeting, but if no such
appointment shall have been made, they shall be appointed by the meeting. If for
any reason any Judge previously appointed shall fail to attend or refuse or be
unable to serve, a Judge in his place shall be appointed by the meeting. Any
appointment of Judges by the meeting shall be by per capita vote of the
stockholders present and entitled to vote.
<PAGE>
Section 9. List of Stockholders. At least ten days prior to every election
of directors a complete list of the stockholders entitled to vote at such
election, arranged in alphabetical order and indicating the number of voting
shares held by each, shall be prepared and certified by the Secretary or an
Assistant Secretary. Such list shall be filed at the place where the election is
to be held and shall, at all times during the usual hours for business and
during the whole time of said election, be opened to the examination of any
stockholder.
ARTICLE III - DIRECTORS
Section 1. Number, Election and Tenure. Except as may be otherwise
specifically provided by law, the Restated Certificate of Incorporation or by
these By-Laws, the power, business, property and affairs of the Corporation
shall be exercised and managed by a board of directors which shall consist of
not less than eight or more than thirteen directors. Within such limit, the
number of directors shall be determined by resolution of the board of directors.
The board of directors shall be divided into three classes as nearly as equal in
number as possible. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible. Such classes shall consist
of one class of directors who shall be elected for a three-year term expiring at
the annual meeting of stockholders held in 1986; a second class of directors who
shall be elected for a three-year term expiring at the annual meeting of
stockholders held in 1987; and a third class of directors who shall be elected
for a three-year term expiring at the annual meeting of stockholders held in
1988. At each annual meeting of stockholders beginning in 1986, the successors
of the class of directors whose term expires at that annual meeting shall be
elected for a three-year term. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor shall be
elected and shall qualify, or until his earlier death, resignation, retirement,
disqualification or removal. Except as provided in Section 2 of this Article,
directors shall be elected by a plurality of the votes cast at the annual
meeting of stockholders. No director need be a stockholder.
Section 2. Vacancies. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled only by a majority of
the Board of Directors then in office, provided that a quorum is present, and
any other vacancy occurring in the Board of Directors may be filled only by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall be elected for the same
remaining term as that of his predecessor in office. Any additional director of
any class elected to fill a vacancy resulting from an increase in any such class
shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
Section 3. Resignations. Any director may resign from his office at any
time by delivering his resignation in writing to the Corporation, and the
acceptance of such resignation, unless required by the terms thereof, shall not
be necessary to make such resignation effective.
Section 4. Meetings. The Board of Directors may hold its meetings in such
place or places within or without the State of Delaware as the Board from time
to time by resolution may determine or as shall be specified in the respective
notices or waivers of notice thereof, and the directors may adopt such rules and
regulations for the conduct of their meetings and the management of the
Corporation, not inconsistent with these By-Laws, as they may deem proper. An
annual meeting of the Board for the election of officers shall be held within
three days following the day on which the annual meeting of the stockholders for
the election of directors shall have been held. The Board of Directors from time
to time by resolution may fix a time and place (or varying times and places) for
the annual and other regular meetings of the Board; provided, that, unless a
time and place is so fixed for any annual meeting of the Board, the same shall
be held immediately following the annual meeting of the stockholders at the same
place at which such meeting shall have been held. No notice of the annual or
other regular meetings of the Board need be given. Other meetings of the Board
of Directors shall be held whenever called by the President or by any two of the
directors for the time being in office; and the Secretary or an Assistant
Secretary shall give notice of each such meeting to each director by mailing the
same not later than the second day before the meeting, or personally or by
telegraphing, cabling or telephoning the same not later than the day before the
meeting. No notice of a meeting need be given if all directors are present in
person. Any business may be transacted at any meeting of the Board of Directors,
whether or not specified in a notice of the meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if prior to such action a written consent thereto is signed
by all members of the Board, and such written consent is filed with the minutes
of proceedings of the Board.
Section 5. Quorum. Except as may be otherwise specifically provided by
law, the Restated Certificate of Incorporation or these By-Laws, at all meetings
of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors. If there be less than a quorum at any meeting of the
Board of Directors, a majority of those present (or if only one be present, then
that one) may adjourn the meeting from time to time, without notice other than
announcement at the meeting which shall be so adjourned, until a quorum shall be
present.
Section 6. Compensation of Directors. The Board of Directors shall have
the power to fix the compensation of directors and members of committees of the
Board. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors, as well as a stated salary as director.
No such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
Section 7. Committees. The Board of Directors may, by resolution or
resolutions, passed by a majority of the whole Board, from time to time
designate an Executive Committee and such other committee or committees as it
may determine, each committee to consist of two or more of the directors of the
Corporation, which, to the extent provided in said resolution or resolutions,
shall have and may exercise any powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may have the
power to authorize the seal of the corporation to be affixed to all papers which
may require it. Any action required or permitted to be taken at any meeting of
the committee may be taken without a meeting, if prior to such action a written
consent thereto is signed by all members of such committee, and such written
consent is filed with the minutes of proceedings of the committee.
ARTICLE IV - OFFICERS AND AGENTS
Section 1. General Provisions. The officers of the Corporation shall be a
Chief Executive Officer, a Chief Financial Officer, a Treasurer and a Secretary,
and may include one or more Vice Presidents, one or more Assistant Treasurers
and one or more Assistant Secretaries, all of whom shall be appointed by the
Board of Directors as soon as may be after the election of directors in each
year. Any two offices, may be held by the same person, but no officer shall
execute, acknowledge or verify any instrument in more than one capacity if such
instrument is required by law or by these By-Laws to be executed, acknowledged
or verified by any two or more officers. Each of such officers shall serve until
the annual meeting of the Board of Directors next succeeding his appointment and
until his successor shall have been chosen and shall have qualified. The Board
of Directors may appoint such officers, agents and employees as it may deem
necessary or proper, who shall respectively have such authority and perform such
duties as may from time to time be prescribed by the Board of Directors. All
officers, agents and employees appointed by the Board of Directors shall be
subject to removal at any time by the affirmative vote of a majority of the
whole Board. Other agents and employees may be removed at any time by the Board
of Directors, by the officer appointing them, or by any other superior upon whom
such power of removal may be conferred by the Board of Directors. The salaries
of the officers of the Corporation shall be fixed by the Board of Directors, but
this power may be delegated to any officer.
Section 2. The Chief Executive Officer. The Chief Executive Officer shall
be the principal executive officer of the Corporation and shall preside at all
meetings of the stockholders and of the Board of Directors. Subject to the
control of the Board of Directors, he shall have general charge of the business
and affairs of the Corporation and shall keep the Board of Directors fully
advised. At the direction of the Board of Directors, he shall have power in the
name of the Corporation and on its behalf to execute any and all deeds,
mortgages, contracts, agreements and other instruments in writing. He shall
employ and discharge employees and agents of the Corporation, except such as
shall hold their offices by appointment of the Board of Directors, but he may
delegate these powers to other officers as to employees under their immediate
supervision. He shall have such powers and perform such duties as generally
pertain to the office of President, as well as such further powers and duties as
may be prescribed by the Board of Directors. The Chief Executive Officer shall
have full power and authority on behalf of the Corporation to execute any
stockholders' consents and to attend and act and to vote in person or by proxy
at any meetings of stockholders of any corporation in which the Corporation may
own stock, and at any such meeting shall possess and may exercise any and all of
the rights and powers incident to the ownership of such stock and which, as the
owner thereof, the Corporation might have possessed and exercised if present.
The Board of Directors, by resolution from time to time, may confer like powers
upon any other person or persons.
Section 3. The President. The Board of Directors may appoint an officer of
the Corporation to serve as the President of the Corporation. The President
shall perform such of the duties of the Chief Executive Officer of the
Corporation on behalf of the Corporation as may be assigned to him from time to
time by the Board of Directors or the Chief Executive Officer. In the absence or
inability of the Chief Executive Officer to act, the President shall have and
possess all of the powers and discharge all of the duties of the Chief Executive
Officer, subject to the control of the Board of Directors.
Section 4. Vice Presidents. Each Vice President shall have such powers and
perform such duties as the Board of Directors or the Chief Executive Officer may
from time to time prescribe, and shall perform such other duties as may be
prescribed in these By-Laws. In the absence or inability to act of the Chief
Executive Officer or the President, the Vice President next in order as
designated by the Board of Directors or, in the absence of such designation,
senior in length of service in such capacity who shall be present and able to
act, shall perform all the duties and may exercise any of the powers of the
Chief Executive Officer or the President, subject to the control of the Board of
Directors. The performance of any duty by a Vice President shall be conclusive
evidence of his power to act.
Section 5. Chief Financial Officer. The Board of Directors shall appoint
an officer to serve as the Chief Financial Officer of the Corporation. The Chief
Financial Officer shall be responsible for the financial records and affairs of
the Corporation and shall have such further powers and duties as are incident to
the position of Chief Financial Officer, subject to the direction of the Chief
Executive Officer and the Board of Directors. The Chief Financial Officer shall
supervise the activities of the Treasurer of the Corporation, who shall be
subordinate to and report to the Chief Financial Officer.
Section 6. General Counsel. The Board of Directors shall appoint an
officer to serve as the General Counsel of the Corporation. The General Counsel
shall be the chief legal officer of the Corporation and shall be responsible for
all legal affairs of the Corporation, and shall have such further powers and
duties as are incident to the position of General Counsel.
Section 7. The Treasurer. The Treasurer shall have the care and custody of
all funds and securities of the Corporation which may come into his hands and
shall deposit the same to the credit of the Corporation in such bank or banks or
other depository or depositories as the Board of Directors may designate. He may
endorse all commercial documents requiring endorsements for or on behalf of the
Corporation and may sign all receipts and vouchers for payments made to the
Corporation. He shall be subordinate to and responsible to officer who is
designated Chief Financial Officer by the Board of Directors. He shall render an
account of his transactions to the Board of Directors as often as they shall
require the same and shall at all reasonable times exhibit his books and
accounts to any director; shall cause to be entered regularly in books kept for
that purpose full and accurate account of all moneys received and paid by him on
account of the Corporation; and shall have such further powers and duties as are
incident to the position of Treasurer, subject to the control of the Board of
Directors. He may be required by the Board of Directors to give a bond for the
faithful discharge of his duties in such sum and with such surety as the Board
may require.
Section 8. The Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors and of the stockholders and shall attend to
the giving and serving of all notices of the Corporation. He shall have custody
of the seal of the Corporation and shall affix the seal to all certificates of
shares of stock of the Corporation and to such other papers or documents as may
be proper and, when the seal is so affixed, he shall attest the same by his
signature wherever required. He shall have charge of the stock certificate book,
transfer book and stock ledger, and such other books and papers as the Board of
Directors may direct. He shall, in general, perform all the duties of Secretary,
subject to the control of the Board of Directors.
Section 9. Assistant Treasurers. In the absence or inability of the
Treasurer to act, any Assistant Treasurer may perform all the duties and
exercise all of the powers of the Treasurer, subject to the control of the Board
of Directors. The performance of any such duty shall be conclusive evidence of
his power to act. An Assistant Treasurer shall also perform such other duties as
the Treasurer or the Board of Directors may from time to time assign to him.
Section 10. Assistant Secretaries. In the absence or inability of the
Secretary to act, any Assistant Secretary may perform all the duties and
exercise all the powers of the Secretary, subject to the control of the Board of
Directors. The performance of any such duty shall be conclusive evidence of his
power to act. An Assistant Secretary shall also perform such other duties as the
Secretary or the Board of Directors may from time to time assign to him.
Section 11. Other Officers. Other officers shall perform
such duties and have such powers as may from time to time be
assigned to them by the Board of Directors.
Section 12. Delegation of Duties. In case of the absence of any officer of
the Corporation, or for any other reason that the Board may deem sufficient, the
Board may confer, for the time being, the powers or duties, or any of them, of
such officer upon any other officer, or upon any director.
ARTICLE V - CAPITAL STOCK
Section 1. Certificate for Shares. Certificates for shares of stock of the
Corporation certifying the number and class of shares owned shall be issued to
each stockholder in such form not inconsistent with the Certificate of
Incorporation and these By-Laws, as shall be approved by the Board of Directors.
The certificates for the shares of each class shall be numbered and registered
in the order in which they are issued and shall be signed by the Chairman, the
Chief Executive Officer, the President or a Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and the
seal of the Corporation shall be affixed thereto. All certificates exchanged or
returned to the Corporation shall be cancelled.
Section 2. Transfer of Shares of Stock. Transfers of shares shall be made
only upon the books of the Corporation by the holder, in person or by attorney
lawfully constituted in writing, and on the surrender of the certificate or
certificates for such shares properly assigned. The Board of Directors shall
have the power to make all such rules and regulations, not inconsistent with the
Certificate of Incorporation and these By-Laws, as they may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
Section 3. Lost, Stolen or Destroyed Certificates. The Board of Directors,
in their discretion, may require the owner of any certificate of stock alleged
to have been lost, stolen or destroyed, or his legal representatives, to give
the Corporation a bond in such sum as they may direct, to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate, as a condition of
the issue of a new certificate of stock in the place of any certificate
theretofore issued alleged to have been lost, stolen or destroyed. Proper and
legal evidence of such loss, theft or destruction shall be procured for the
Board, if required. The Board of Directors, in their discretion, may refuse to
issue such new certificate, save upon the order of some court having
jurisdiction in such matters.
Section 4. Closing of Transfer Books: Record Date. The Board of Directors
shall have power to close the stock transfer books of the Corporation for a
period not exceeding 50 days preceding the date of any meeting of stockholders
or the date for payment of any dividend or the date for allotment of rights or
the date when any change or conversion or exchange of capital stock shall go
into effect or for a period of not exceeding 50 days in connection with
obtaining the consent of stockholders for any purpose; provided, however, that
in lieu of closing the stock transfer books as aforesaid, the Board of Directors
may fix in advance a date, not exceeding 50 days preceding the date of any
meeting of stockholders, or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such case such stockholders and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any such record date fixed as
aforesaid.
Section 5. Maintenance of Stock Ledger. The original or a duplicate stock
ledger containing the names and addresses of the stockholders, and the number of
shares held by them, respectively, shall at all times, during the usual hours
for business, be open to the examination of every stockholder at the principal
office or place of business of the Corporation in the State of Delaware.
ARTICLE VI - SEAL
The seal of the Corporation shall consist of a flat-faced circular die
with the name of the Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware" inscribed thereon.
ARTICLE VII - WAIVER
Whenever any notice whatever is required to be given by statute or under
the provisions of the Certificate of Incorporation or By-Laws of this
Corporation a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE VIII - CHECKS, NOTES, DRAFTS, ETC.
Checks, notes, drafts, acceptances, bills of exchange and other orders or
obligations for the payment of money shall be signed by such officer or officers
or person or persons as the Board of Directors shall from time to time
determine.
ARTICLE IX - AMENDMENTS
These By-Laws, or any of them, may be altered, amended or repealed, and
new By-Laws may be adopted, (1) by the stockholders, at any annual meeting, or
at any special meeting called for that purpose, as provided and subject to the
limitations set forth in the Restated Certificate of Incorporation or (2) by the
Board of Directors, (a) at any duly convened meeting by a majority vote of the
whole Board, or (b) without a meeting by prior written consent signed by all
members of the Board and filed with the minutes of proceedings of the Board, but
any such action of the Board of Directors may be amended or repealed by the
stockholders at any annual meeting or any special meeting called for that
purpose as provided and subject to the limitations set forth in the Restated
Certificate of Incorporation. The time and place, as fixed by these By-Laws, of
the annual meeting of the stockholders for the election of directors shall not
be changed within 60 days next before the day on which the election is to be
held, and a notice of any change shall be given to each stockholder entitled to
vote there at least 20 days before the election is held, in person or by letter
mailed to his last known post office address.
TMO BY-LAWS RESTATED 9/24/98
