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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K405/A AMENDMENT NO. 3
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended January 3, 1998
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from _________ to ________
Commission File Number 0-7469
TJ INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 82-0250992
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(State of incorporation) (IRS employer
identification number)
200 EAST MALLARD DRIVE, BOISE, IDAHO 83706
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (208) 364-3300
---------------
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act:
Common Stock ($1.00 par value)
--------------------------------
(Title of Class)
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 by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to best of registrant's knowledge, in
definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K. /X/
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The aggregate market value of the voting stock held by
non-affiliates of the registrant, computed by reference to the
price at which the stock was sold, or the average bid and asked
prices of such stock, as of the close of business on March 30,
1998 was $432,034,000.
The number of outstanding shares of the registrant's common
stock ($1.00 par value), as of March 30, 1998 was 17,003,765,
excluding 888,782 shares held as treasury stock.
Documents incorporated by reference: Listed hereunder the
following documents if incorporated by reference, and the Parts
of this Form 10-K into which the document is incorporated:
The registrant's definitive proxy statement for use in
connection with the annual meeting of stockholders scheduled to
be held on May 27, 1998, portions of which are incorporated by
reference into Part III of this Form 10-K.
Explanatory Note
This Form 10-K/A Amendment No. 3 amends Item 14 and related
Exhibits of the Registrant's Form 10-K for the year ended January
3, 1998. This Form 10-K/A Amendment No. 3 is filed to amend Item
14 to include revised bylaws of the Registrant, an Exhibit
previously omitted. Such revised bylaws are attached to this
Form 10-K/A Amendment No. 3. Revised Item 14 is set forth in
full below.
ITEM 14. EXHIBITS, FINANCIAL SCHEDULES,
AND REPORTS ON FORM 8-K
(a) Financial Statements
A list of the financial statements included herein is set
forth in the Index to Financial Statements, Schedules and
Exhibits submitted as a separate section of this Report.
(b) Reports on Form 8-K
There have been no Form 8-K filings during the fourth
quarter of 1997.
(c) Exhibits. The following documents are filed as Exhibits to
this Form 10-K:
(3) Limited Partnership Agreement between TJ International,
Inc. and MacMillan Bloedel of America, Inc. whereby the
Partnership was formed. This document was filed as an exhibit to
the Company's Form 8-K dated September 30, 1991 and is
incorporated herein by reference.
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Bylaws of TJ International, Inc. (a Delaware corporation),
adopted by the Company's Board of Directors on December 18, 1997.
This document is filed as an exhibit to the Form 10-K/A Amendment
No. 3, amending Form 10-K for the year ended January 3, 1998.
Amendment to Limited Partnership Agreement effective the
beginning of the Company's fiscal year 1993. This document was
filed as an exhibit to the Company's Form 10-Q for the quarter
ended September 26, 1992 and is incorporated herein by reference.
Certificate of Ownership and Merger of TJ Merger Corporation
with and into Trus Joist Corporation, whereby the Company changed
its name from Trus Joist Corporation to TJ International, Inc.
effective September 16, 1988. This document was filed as an
exhibit to the Company's Form 10-K for the fiscal year ended
January 2, 1993 and is incorporated herein by reference.
Amended Certificate of Incorporation of TJ International
Inc. This document was filed as an exhibit to the Company's Form
10-Q for the quarter ended July 2, 1994 and is incorporated
herein by reference.
(4) Second Amendment to Credit Agreement, dated as of
November 15, 1996. This document is filed as an exhibit to this
Form 10-K for the fiscal year ended December 28, 1996.
Amended and Restated Credit Agreement, dated as of May 31,
1995. This document was filed as an exhibit to the Company's
Form 10-Q for the quarter ended July 1, 1995 and is incorporated
herein by reference.
1992 Stock Option Plan. This document was filed as an
exhibit to the Company's Form 10-K for the fiscal year ended
January 2, 1993 and is incorporated herein by reference.
1993 Stock Option Plan. This document was filed as an
exhibit to the Company's Form 10-Q for the quarter ended July 3,
1993 and is incorporated herein by reference.
Amended and Restated Restricted Stock Plan for Non-Employee
Directors. This document was filed as an exhibit to the
Company's Form 10-Q for the quarter ended July 3, 1993 and is
incorporated herein by reference.
Rights Agreement, dated as of August 24, 1989, between TJ
International, Inc. and West One Bank. These documents were
filed as an exhibit to the Company's Form 10-K for the fiscal
year ended December 31, 1994.
1982 Incentive Stock Option Plan, as amended. These
documents were filed as an exhibit to the Company's Form 10-K for
the fiscal year ended December 31, 1994.
1985 Incentive Stock Option Plan, as amended. These
documents were filed as an exhibit to the Company's Form 10-K for
the fiscal year ended December 31, 1994.
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1988 Stock Option Plan, as amended. These documents were
filed as an exhibit to the Company's Form 10-K for the fiscal
year ended December 31, 1994.
1997 Non-Employee Director filed as an exhibit to the
Company's form 10-Q for the quarter ended June 28, 1997 and is
incorporated herein by reference.
1996 Stock Option Plan. This document was filed as an
exhibit to the Company's form 10-Q for the quarter ended June 28,
1997 and is incorporated herein by reference.
(10) Certificate of Designation, Preferences and Rights of
ESOP Convertible Preferred Stock; Stock Purchase Agreement; and
ESOP Term Note. These documents were filed as an exhibit to the
Company's Form 10-Q for the quarter ended September 29, 1990 and
are incorporated herein by reference.
Mortgage, Security Interest and Indenture of Trust; Lease
Agreement; Guaranty Agreement; Reimbursement Agreement;
Remarketing and Interest Services Agreement; pertaining to
Stayton, Oregon, plant. These documents were filed as Exhibits
to the Company's Form 10-K for the fiscal year ended December 28,
1991 and are incorporated herein by reference.
Trust Indenture; Refunding Agreement; Remarketing Agreement;
Reimbursement Agreement; Pledge and Security Agreement;
pertaining to the Natchitoches, Louisiana, plant. These
documents were filed as Exhibits to the Company's Form 10-K for
the fiscal year ended January 2, 1993 and are incorporated by
reference.
Amendment to Reimbursement Agreement; Pledge and Security
Agreement; pertaining to the Natchitoches, Louisiana, plant.
These documents were filed as exhibits to the Company's Form 10-K
for the fiscal year ended January 1, 1994 and are incorporated by
reference.
Stock Purchase and Resale Agreement. These documents were
filed as an exhibit to the Company's Form 10-K for the fiscal
year ended January 1, 1994 and are incorporated herein by
reference.
Loan Agreement, Trust Indenture and Guaranty pertaining to
Hazard, Kentucky, plant. These documents were filed as an
exhibit to the Company's Form 10-Q for the quarter ended July 2,
1994 and are incorporated herein by reference.
Loan Agreement, Trust Indenture and Guaranty pertaining to
the Solid Waste Disposal Revenue bonds, Series 1995 is available
to the Commission upon request.
Loan Agreement, Loan Agreement, Note, and Guarantee
Agreement dated September 30, 1997 pertaining to the $42,600,000
taxable notes. These documents were filed as an exhibit to the
Company's Form 10-Q for the quarter ended September 28, 1997 and
are incorporated herein by reference.
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(11) Statement regarding computation of per share earnings.
The information required by Exhibit (11) is included under the
caption "Net Income Per Share" in Note 1 to the consolidated
financial statements, page 42 of this Report.
(22) Subsidiaries of the registrant.
(24) Consent of independent public accountants to the
incorporation of their report dated February 2, 1998, included in
this Form 10-K for the year ended January 3, 1998, into TJ
International, Inc.'s previously filed Form S-8 Registration
Statements as follows: (registration numbers in parentheses).
Trus Joist Corporation Employee Stock Ownership Plan (2-96065),
Trus Joist Corporation Associates' Stock Purchase Plan (2-96821),
Trus Joist Corporation Key Employees' 1982 Incentive Stock Option
Plan with Nonstatutory feature (2-96964), Trus Joist Corporation
Employee Stock Ownership Plan (33-4704), Trus Joist Corporation
Profit Sharing Plan (33-21870), Trus Joist Corporation Key
Employees' 1985 Incentive Stock Option Plan with Nonstatutory
Feature, as amended (33-22186), TJ International, Inc. Key
Employees' 1988 and 1992 Stock Option Plans (33-54582), TJ
International Inc., Key Employees' 1993 Stock Option Plan
(333-04713), Associates' Stock Purchase Plan (333-18425) and
Leveraged Stock Purchase Plan (333-18427), Key Employees' 1996
Stock Option Plan and Non-Employee Directors 1997 Stock Plan
(333-32665).
(25) Powers of Attorney.
(27) Financial Data Schedule
All other exhibits are omitted since they are not applicable
or not required.
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 an authorized representative on June 18, 1999.
TJ INTERNATIONAL, INC., Registrant
By /s/ Valerie A. Heusinkveld
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Valerie A. Heusinkveld -- Vice
President, Finance and Chief
Financial Officer
BYLAWS
OF
TJ INTERNATIONAL, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of
the corporation in the State of Delaware shall be in the City of
Wilmington, County of New Castle. (Del. Code Ann., tit. 8,
Section 131)
Section 1.2 Other Offices. The corporation shall also have
and maintain an office or principal place of business at such
place as may be fixed by the Board of Directors, and may also
have offices at such other places, both within and without the
State of Delaware as the Board of Directors may from time to time
determine or the business of the corporation may require. (Del.
Code Ann., tit. 8, Section 122(8))
ARTICLE II
CORPORATE SEAL
Section 2.1 Corporate Seal. The corporate seal shall
consist of a die bearing the name of the corporation and the
inscription, "Corporate Seal-Delaware." Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. (Del. Code Ann., tit. 8, Section 122(3))
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 3.1 Place of Meetings. Meetings of the
stockholders of the corporation shall be held at such place,
either within or without the State of Delaware, as may be
designated from time to time by the Board of Directors, or, if
not so designated, then at the office of the corporation required
to be maintained pursuant to Section 1.1 hereof. (Del. Code Ann.,
tit. 8, Section 211(a))
Section 3.2 Annual and Special Meetings. The annual
meeting of the stockholders of the corporation shall be held on
any date and time which may from time to time be designated by
the Board of Directors. At such annual meeting, directors shall
be elected and any other
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business may be transacted that may properly come before the
meeting. (Del. Code Ann., tit. 8, Section 211(b))
Special meetings of the stockholders of the corporation may
be called, for any purpose or purposes, by the President, the
Chairman of the Board or the Board of Directors at any time.
Special meetings of the stockholders of the corporation may not
be called by any other person or persons. (Del. Code Ann., tit.
8, Section 211(d))
Section 3.3 Notice of Meetings. Except as otherwise
provided by law or the Certificate of Incorporation, written
notice of each meeting of stockholders shall be given not less
than ten (10) days nor more than sixty (60) days before the date
of the meeting to each stockholder entitled to vote at such
meeting. Such notice shall specify the place, date and hour and,
in the case of a special meeting, the purpose or purposes of the
meeting. Such notice of any meeting of stockholders may be
waived in writing, signed by the person entitled to notice
thereof, either before or after such meeting, and will be waived
by any stockholder by his attendance thereat in person or by
proxy, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not
lawfully called or convened. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such
meeting in all respects as if due notice thereof had been given.
(Del. Code Ann., tit. 8, Sections 222, 229)
Section 3.4 Quorum. At all meetings of stockholders,
except where otherwise provided by statute, the Certificate of
Incorporation or these Bylaws, the presence, in person or by
proxy duly authorized, of the holders of a majority of the
outstanding shares of stock entitled to vote shall constitute a
quorum for the transaction of business. Any shares, the voting
of which at said meeting has been enjoined, or which for any
reason cannot be lawfully voted at such meeting, shall not be
counted to determine a quorum at such meeting. In the absence of
a quorum any meeting of stockholders may be adjourned, from time
to time, by vote of the holders of a majority of the shares
represented thereat; but no other business shall be transacted at
such meeting. The stockholders present at a duly called or
convened meeting, at which a quorum is present, may continue to
transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, all action taken by the holders of
a majority of the voting power present in person or by proxy at
any meeting at which a quorum is present shall be valid and
binding upon the corporation. (Del. Code Ann., tit. 8, Section
216)
Section 3.5 Adjournment and Notice of Adjourned Meetings.
Any meeting of stockholders, whether annual or special, may be
adjourned from time to time by the vote of a majority of the
shares, the holders of which are present either in person or by
proxy. 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 corporation
may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed
for the adjournment meeting, a notice of the
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adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. (Del. Code Ann., tit. 8, Section
222(c))
Section 3.6 Voting Rights. For the purpose of determining
those stockholders entitled to vote at any meeting of the
stockholders, except as otherwise provided by law, only persons
in whose names shares stand on the stock records of the
corporation on the record date, as provided in Sections 3.8 and
7.4 of these Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote or execute consents
shall have the right to do so either in person or by an agent or
agents authorized by a written proxy executed by such person or
his duly authorized agent, which proxy shall be filed with the
Secretary at or before the meeting at which it is to be used. An
agent so appointed need not be a stockholder. No proxy shall be
voted or acted upon after three (3) years from its date of
creation unless the proxy provides for a longer period. All
elections of Directors shall be by written ballot. (Del. Code
Ann., tit. 8, Sections 211(e), 212(b))
Section 3.7 Joint Owners of Stock. If shares or other
securities having voting power stand of record in the names of
two (2) or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the
entirety, or otherwise, or if two (2) or more persons have the
same fiduciary relationship respecting the same shares, unless
the Secretary is given written notice to the contrary and is
furnished with a copy of the instrument or order appointing them
or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect: (a)
if only one votes, his act binds all; (b) if more than one votes,
the act of the majority so voting binds all; (c) if more than one
votes, but the vote is evenly split on any particular matter,
each faction may vote the securities in question proportionally,
or may apply to the Delaware Court of Chancery for relief as
provided in the General Corporation Law of Delaware, Section
217(b). If the instrument filed with the Secretary shows that
any such tenancy is held in unequal interests, a majority or
even-split for the purpose of this Section 3.7 shall be a
majority or even-split in interest. (Del. Code Ann., tit. 8,
Section 217(b))
Section 3.8 List of Stockholders. The Secretary shall
prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to
vote at said meeting, arranged in alphabetical order and showing
the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at
a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The
list shall be produced and kept at the time and place of meeting
during the whole time thereof, and may be inspected by any
stockholder who is present. (Del. Code Ann., tit. 8, Section
219(a))
Section 3.9 Organization. At every meeting of
stockholders, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the President, or,
if the President is absent, the most senior Vice President
present, or in the absence of any such officer,
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a chairman of the meeting chosen by a majority in interest of the
stockholders entitled to vote, present in person or by proxy,
shall act as chairman. The Secretary, or, in his absence, an
Assistant Secretary directed to do so by the President, shall act
as secretary of the meeting.
Section 3.10 Nomination of Directors. Nominations of
persons for election to the Board of Directors of this
corporation at the annual meeting of stockholders may be made at
such meeting by or at the direction of the Board of Directors, by
any nominating committee or person appointed by the Board of
Directors, or by any stockholder of the corporation entitled to
vote for the election of directors at the meeting who timely
complies with the notice procedures herein set forth. To be
timely, a stockholder's notice must be delivered to, or mailed to
and received by, the Secretary of the corporation at the
corporation's principal executive offices not later than the
December 31 immediately preceding the annual meeting. Such
stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or reelection
as a director, (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of
the corporation which are beneficially owned by the person and
(iv) any other information relating to the person that is
required to be disclosed in solicitations for proxies for
election of directors pursuant to Rule 14a under the Securities
Exchange Act of 1934; and (b) as to the stockholder giving the
notice, (i) the name and record address of the stockholder and
(ii) the class and number of shares of the corporation which are
beneficially owned by the stockholder. The corporation may
require any proposed nominee to furnish such other information as
may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as a director of
the corporation. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with
the procedures set forth herein. These provisions shall not
apply to nomination of any persons entitled to be separately
elected by holders of preferred stock.
Section 3.11 Business Introduced by Stockholders at Annual
Meetings. Where business introduced by a stockholder is not
specified in the notice of annual meeting, then (in addition to
any other applicable requirements) for business to be properly
introduced by a stockholder at an annual meeting of stockholders,
the stockholder must have given timely notice thereof in writing
to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to, or mailed and received
by, the Secretary of the corporation in the same manner and
subject to the same time requirements provided in Section 3.10 of
these Bylaws for stockholder notice of nominations to the Board
of Directors. A stockholder's notice must set forth as to each
matter the stockholder proposes to bring before the meeting (a) a
brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at the
meeting, (b) the name and record address of the stockholder
proposing such business, (c) the class, series and number of
shares of the corporation's stock which are beneficially owned by
the stockholder, and (d) any material interest of the stockholder
in such business. In addition, such stockholder's notice shall
set forth, as to the stockholder giving the notice, (a) the name
and record address of the stockholder and (b) the class and
number of shares of the corporation which are beneficially owned
by the stockholder.
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Section 3.12 Matters to be Acted Upon at Special Meetings.
Only matters set forth in the notice of special meeting as called
pursuant to Section 3.2 of these Bylaws may be acted upon at such
meeting.
ARTICLE IV
DIRECTORS
Section 4.1 Number. Except as otherwise provided in the
Certificate of Incorporation or these Bylaws relating to the
rights of the holders of any series of preferred stock, voting
separately by class or series, to elect additional directors
under specified circumstances, the authorized number of directors
of the corporation shall be fixed from time to time by a
resolution adopted by the Board of Directors or otherwise
pursuant to these Bylaws. The Directors, other than those who
may be elected by the holders of any series of preferred stock,
voting separately by class or series, shall be classified, with
respect to the time for which they severally hold office, into
three classes, Class I, Class II and Class III, which shall be
nearly equal in number as possible, and shall be adjusted from
time to time in the manner specified in these Bylaws to maintain
such proportionality. Directors need not be stockholders unless
so required by the Certificate of Incorporation. If for any
cause the directors shall not have been elected at an annual
meeting, they may be elected as soon thereafter as convenient at
a special meeting of the stockholders called for that purpose in
the manner provided in these Bylaws. (Del. Code Ann., tit. 8,
Sections 141(b), (c), (d), 211(b), (c))
Notwithstanding the foregoing, whenever the holders of any
one or more class or series of preferred stock issued by the
corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of the
stockholders, the election, term of office, filling of vacancies
and other features of such directorships shall be governed by the
terms of the Certificate of Incorporation applicable thereto, and
such directors so elected shall not be divided into classes
pursuant to the Certificate of Incorporation unless expressly
provided by such terms.
Section 4.2 Term. Each initial director in Class I shall
hold office for a term expiring at the 1994 annual meeting of
stockholders, each initial director in Class II shall hold office
initially for a term expiring at the 1995 annual meeting of
stockholders, and each initial director in class III shall hold
office for a term expiring at the 1996 annual meeting of
stockholders. Notwithstanding the foregoing provisions, each
director shall serve until his or her successor is duly elected
and qualified or until his or her earlier death, resignation or
removal. At each annual meeting of stockholders following the
1993 annual meeting, the successors to the class of directors
whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election and
until their successors have been duly elected and qualified or
until their earlier death, resignation or removal. (Del. Code
Ann., tit. 8, Section 141(d))
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Section 4.3 Newly Created Directorships and Vacancies;
Decrease in Size of Board. Newly created directorships resulting
from any increase in the number of directors and any vacancies on
the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in
office (and not by stockholders), even if less than a quorum of
the authorized Board of Directors. Any directors appointed as a
result of an increase in the number of directors shall be
appointed among the three classes of directors so as to maintain
such classes as nearly equal as possible, and any director so
appointed shall hold office for a term that shall coincide with
the remaining term of such class. Any director elected to fill a
vacancy not resulting from an increase in the number of directors
shall have the same remaining term as that of such director's
predecessor. In the event of any decrease in the number of
directors, the newly eliminated directorships resulting from such
decrease shall be appointed by the Board of Directors among the
three classes so as to maintain such classes as nearly equal as
possible. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent
director. (Del. Code Ann., tit. 8, Section 223(a), (b), (d))
Section 4.4 Powers. The powers of the corporation shall be
exercised, its business conducted and its property controlled by
or under the direction of the Board of Directors, except as may
be otherwise provided by statute or by the Certificate of
Incorporation (Del. Code Ann. tit. 8, Section 141(a))
Section 4.5 Resignation. Any director may resign at any
time by delivering his written resignation to the Secretary, such
resignation to specify whether it will be effective at a
particular time, upon receipt by the Secretary or at the pleasure
of the Board of Directors. If no such specification is made, it
shall be deemed effective at the pleasure of the Board of
Directors. When one or more directors shall resign from the
Board of Directors, 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 for the unexpired portion of the term of the director
whose place shall be vacated and until his successor shall have
been duly elected and qualified. (Del. Code Ann., tit. 8,
Sections 141(b), 223(d))
Section 4.6 Removal. Except as otherwise provided in the
Certificate of Incorporation or these Bylaws relating to the
rights of the holders of any series of preferred stock, voting
separately by class or series, to elect directors under specified
circumstances, any director or directors may be removed from
office at any time, but only for cause and only by the
affirmative vote, at any regular meeting or special meeting of
the stockholders, of not less than sixty-six and two-thirds
percent (66-2/3%) of the total number of votes of the then
outstanding shares of capital stock of the corporation entitled
to vote generally in the election of directors, voting together
as a single class, but only if notice of such proposal is
contained in the notice of such meeting. Any vacancy in the
Board of Directors resulting from any such removal shall be
filled by vote of a majority of the directors then in office,
although less than a quorum and any directors so chosen shall
hold office until their successors shall have been elected and
<PAGE>
qualified or until their earlier death, resignation or removal.
(Del. Code Ann., tit. 8, Section 141(k))
Section 4.7 Meetings.
(a) Annual Meetings. The annual meeting of the Board
of Directors shall be held immediately after the annual meeting
of stockholders and at the place where such meeting is held. No
notice of an annual meeting of the Board of Directors shall be
necessary; and such meeting shall be held for the purpose of
electing officers and transacting such other business as may
lawfully come before it.
(b) Regular Meetings. Unless otherwise restricted by
the Certificate of Incorporation, regular meetings of the Board
of Directors may be held at any place within or without the State
of Delaware. (Del. Code Ann., tit. 8, Section 141(g))
(c) Special Meetings. Unless otherwise restricted by
the Certificate of Incorporation, special meetings of the Board
of Directors may be held at any time and place within or without
the State of Delaware whenever called by the Chairman of the
Board of Directors, the President or a majority of the Directors.
(Del. Code Ann., tit. 8, Section 141(g))
(d) Telephone Meetings. Any member of the Board of
Directors, or of any committee thereof, may participate in a
meeting by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other; and
participation in a meeting by such means shall constitute
presence in person at such meeting. (Del. Code Ann., tit. 8,
Section 141(i))
(e) Notice of Meetings. Written or telephonic notice
of the time and place of all regular and special meetings of the
Board of Directors shall be given at least twelve (12) hours
before the time of the meeting. Notice of any meeting may be
waived in writing at any time before or after the meeting and
will be waived by any director by attendance thereat, except when
the director attends the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. (Del. Code Ann., tit. 8, Section 229)
(f) Waiver of Notice. The transaction of all business
at any meeting of the Board of Directors, or any committee
thereof, however called or noticed, or wherever held, shall be as
valid as though taken at a meeting duly held after regular call
and notice, if a quorum is present and if, either before or after
the meeting, each of the directors not present signs a written
waiver of notice, or a consent to holding such meeting, or an
approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a
part of the minutes of the meeting. (Del. Code Ann. tit. 8,
Section 229)
<PAGE>
Section 4.8 Quorum and Voting.
(a) Quorum. Unless the Certificate of Incorporation
requires a greater number, a quorum of the Board of Directors
shall consist of a majority of the exact number of directors
fixed from time to time in accordance with Section 4.1 of these
Bylaws, but not less than one (1); provided, however, at any
meeting whether a quorum is present or otherwise, a majority of
the directors present may adjourn from time to time until the
time fixed for the next regular meeting of the Board of
Directors, without notice other than by announcement at the
meeting. (Del. Code Ann., tit, 8, Section 141(b))
(b) Majority Vote. At each meeting of the Board of
Directors at which a quorum is present, all questions and
business shall be determined by a vote of a majority of the
directors present, unless a different vote is required by law,
the Certificate of Incorporation or these Bylaws. (Del. Code
Ann., tit. 8, Section 141(b))
Section 4.9 Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and
such writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee. (Del. Code
Ann., tit. 8, Section 141(f))
Section 4.10 Fees and Compensation. By resolution of the
Board of Directors a fixed fee payable in cash or the
corporation's stock or any combination thereof, with or without
expense of attendance, may be allowed for serving on the Board of
Directors and/or attendance at each meeting and at each meeting
of any committee of the Board of Directors. Nothing herein
contained shall be construed to preclude any director from
serving the corporation in any other capacity as an officer,
agent, consultant, employee, or otherwise and receiving
compensation therefor. (Del. Code Ann., tit. 8, Section 141(h))
Section 4.11 Committees.
(a) Executive Committee. The Board of Directors may
by resolution passed by a majority of the whole Board of
Directors, appoint an Executive Committee to consist of one (1)
or more members of the Board of Directors and by like resolution
may fill vacancies in, or reconstitute the membership of, the
Executive Committee. The Executive Committee, to the fullest
extent permitted by law and specifically granted by the Board of
Directors, shall have and may exercise when the Board of
Directors is not in session all powers of the Board of Directors
in the management of the business and affairs of the corporation,
including, without limitation, the power and authority to declare
a dividend, or to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of
the General Corporation Law of Delaware, except such committee
shall not have the power or authority to amend the Certificate of
Incorporation (except that the committee may, to the extent
authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of
<PAGE>
Directors as provided by law, fix the designations and any of the
preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the
corporation or fix the number of shares of any series of stock or
authorize the increase or decrease the shares of any series), to
adopt an agreement of merger or consolidation, to recommend to
the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, to
recommend to the stockholders a dissolution of the corporation or
a revocation of a dissolution or to amend these Bylaws. (Del.
Code Ann., tit. 8, Section 141(c))
(b) Other Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors,
from time to time appoint such other committees as may be
permitted by law. Such other committees appointed by the Board
of Directors shall consist of one (1) or more members of the
Board of Directors, and shall have such powers and perform such
duties as may be prescribed by the resolution or resolutions
creating such committees, but in no event shall such committee
have the powers denied to the Executive Committee in these
Bylaws. (Del. Code Ann., tit. 8, Section 141(c))
(c) Term. The members of all committees of the Board
of Directors shall serve a term coextensive with that of the
Board of Directors which shall have appointed such committee.
The Board of Directors, subject to the provisions of subsections
(a) or (b) of this Section 4.11 may at any time increase or
decrease the number of members of a committee or terminate the
existence of a committee. The membership of a committee member
shall terminate on the date of his death or voluntary
resignation. The Board of Directors may at any time for any
reason remove any individual committee member; and the Board of
Directors may fill any committee vacancy created by death,
resignation removal or increase in the number of members of the
committee. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the
committee; and, in addition, in the absence or disqualification
of any member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member. (Del. Code
Ann., tit. 8, Section 141(c))
(d) Meetings. Unless the Board of Directors shall
otherwise provide, regular meetings of the Executive Committee or
any other committee appointed pursuant to this Section 4.11 shall
be held at such times and places as are determined by the Board
of Directors, or by any such committee; and when notice thereof
has been given to each member of such committee, no further
notice of such regular meetings need be given thereafter.
Special meetings of any such committee may be held at any place
which has been designated from time to time by resolution of such
committee or by written consent of all members thereof, and may
be called by any director who is a member of such committee, upon
written or telephonic notice to the members of such committee of
the time and place of such special meeting given in the manner
provided for the giving of written or telephonic notice to
members of the Board of Directors of
<PAGE>
the time and place of special meetings of the Board of Directors.
Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and will be
waived by any director by attendance thereat, except when the
director attends such special meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. A majority of the authorized number of members of any
such committee shall constitute a quorum for the transaction of
business; and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such
committee. (Del. Code Ann., tit. 8, Sections 141(c), 229)
Section 4.12. Organization. At every meeting of the
directors, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the President, or
if the President is absent, the most senior Vice President, or,
in the absence of any such officer, a chairman of the meeting
chosen by a majority of the directors present, shall preside over
the meeting. The Secretary, or in his absence, an Assistant
Secretary directed to do so by the President, shall act as
secretary of the meeting.
ARTICLE V
OFFICERS
Section 5.1. Officers Designated. The Board of Directors
may appoint a Chairman of the Board of Directors. The officers
of the corporation shall be the Chief Executive Officer, the
President, the Secretary and the Treasurer, all of whom shall be
elected at the annual meeting of the Board of Directors. The
Board of Directors shall designate either the Chairman of the
Board of Directors or the President as the Chief Executive
Officer. The Board of Directors may also appoint one or more
Vice Presidents, Assistant Secretaries or Assistant Treasurers,
and such other officers and agents with such powers and duties as
it shall deem necessary. The order of the seniority of the Vice
Presidents shall be in the order of their nomination, unless
otherwise determined by the Board of Directors. The Board of
Directors may assign such additional titles to one or more of the
officers as it shall deem appropriate. Any one person may hold
any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other
compensation of the officers of the corporation shall be fixed by
or in the manner designated by the Board of Directors. (Del. Code
Ann., tit. 8, Sections 122(5), 142(a), (b))
Section 5.2 Tenure and Duties of Officers.
(a) General. All officers shall hold office at the
pleasure of the Board of Directors and until their successors
shall have been duly elected and qualified, or until their
resignation or removal. Any officer selected or appointed by the
Board of Directors may be removed at any time by the Board of
Directors. If the office of any officer becomes vacant for any
reason, the vacancy may be filled by the Board of Directors.
(Del. Code Ann., tit. 8, Section 142(b),(e))
<PAGE>
(b) Duties of Chairman of the Board of Directors. The
Chairman of the Board of Directors, when present, shall preside
at all meetings of the shareholders and the Board of Directors.
The Chairman of the Board of Directors shall perform other duties
commonly incident to his office and shall also perform such other
duties and have such other powers as the Board of Directors shall
designate from time to time. (Del. Code Ann., tit. 8, Section
142(a))
(c) Duties of the Chief Executive Officer. Subject to
the control of the Board of Directors, the Chief Executive
Officer shall act as the final executive authority in the
corporation, shall see that all orders and resolutions of the
Board of Directors are carried into effect, shall direct the
overall policy and conduct of the corporation's affairs, and
shall have general supervision, direction and control of the
business and officers of the corporation.
(d) Duties of President. The President shall preside
at all meetings of the shareholders and at all meetings of the
Board of Directors, unless the Chairman of the Board of Directors
has been appointed and is present. Subject to the control of the
Board of Directors and the Chief Executive Officer, the President
shall have general supervision, direction and control of the
business and officers of the corporation. The President shall
perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the
Board of Directors shall designate from time to time. (Del. Code
Ann. tit. 8, Section 142 (a))
(e) Duties of Vice Presidents. The Vice Presidents,
in the order of their seniority, may assume and perform the
duties of the President in the absence or disability of the
President or whenever the office of President is vacant. The
Vice Presidents shall perform other duties commonly incident to
their office and shall also perform such other duties and have
such other powers as the Board of Directors or the President
shall designate from time to time. (Del. Code Ann., tit. 8,
Section 142(a))
(f) Duties of Secretary. The Secretary shall attend
all meetings of the stockholders and of the Board of Directors,
and shall record all acts and proceedings thereof in the minute
book of the corporation. The Secretary shall give notice in
conformity with these Bylaws of all meetings of the stockholders,
and of all meetings of the Board of Directors and any committee
thereof requiring notice. The Secretary shall perform all other
duties given him in these Bylaws and other duties commonly
incident to his office and shall also perform such other duties
and have such other powers as the Board of Directors shall
designate from time to time. The President may direct any
Assistant Secretary to assume and perform the duties of the
Secretary in the absence or disability of the Secretary; and each
Assistant Secretary shall perform other duties commonly incident
to his office and shall also perform such other duties and have
such other powers as the Board of Directors or the President
shall designate from time to time (Del. Code Ann., tit. 8,
Section 142 (a))
(g) Duties of Treasurer. The Treasurer shall keep or
cause to be kept the books of account of the corporation in a
thorough and proper manner, and shall render statements of the
financial affairs of the corporation in such form and as often as
required by
<PAGE>
the Board of Directors or the President. The Treasurer, subject
to the order of the Board of Directors, shall have the custody of
all funds and securities of the corporation. The Treasurer shall
perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the
Board of Directors or the President shall designate from time to
time. The President may direct any Assistant Treasurer to assume
and perform the duties of the Treasurer in the absence or
disability of the Treasurer; and each Assistant Treasurer shall
perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the
Board of Directors or the President shall designate from time to
time. (Del. Code Ann., tit. 8, Section 142(a))
Section 5.3 Resignations. Any officer may resign at any
time by giving written notice to the Board of Directors or to the
President or to the Secretary. Any such resignation shall be
effective when received by the person or persons to whom such
notice is given, unless a later time is specified therein, in
which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance
of any such resignation shall not be necessary to make it
effective. (Del. Code Ann., tit. 8, Section 142(b))
Section 5.4 Removal. Any officer may be removed from
office at any time, with or without cause, by the vote or written
consent of a majority of the directors in office at the time, or
by any committee or superior officers upon whom such power of
removal may have been conferred by the Board of Directors.
Section 5.5 Compensation. The compensation of the officers
shall be fixed from time to time by the Board of Directors; and
no officer shall be prevented from receiving such compensation by
reason of the fact that such officer is also a director of the
corporation.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section 6.1 Execution of Corporate Instruments. The Board
of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other person or
persons, to execute on behalf of the corporation any corporate
instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts
on behalf of the corporation, except where otherwise provided by
law or these Bylaws; and such execution or signature shall be
binding upon the corporation. (Del. Code Ann., tit. 8, Sections
103(a), 142(a), 158)
Unless otherwise specifically determined by the Board of
Directors or otherwise required by law, promissory notes, deeds
of trust, mortgages and other evidences of indebtedness of the
corporation, and other corporate instruments or documents
requiring the corporate seal, and certificates of shares of stock
owned by the corporation, shall be executed, signed or endorsed
by the Chairman of the Board of Directors or the President or any
Vice President, and by the
<PAGE>
Secretary or Treasurer or any Assistant Secretary or Assistant
Treasurer. All other instruments and documents requiring the
corporate signature, but not requiring the corporate seal, may be
executed as aforesaid or in such other manner as may be directed
by the Board of Directors. (Del. Code Ann., tit. 8, Sections
103(a), 142(a), 158)
All checks and drafts drawn on banks or other depositaries
on funds to the credit of the corporation or in special accounts
of the corporation shall be signed by such person or persons as
the Board of Directors shall authorize so to do so. (Del. Code
Ann. tit. 8, Sections 103(a), 152(a), 158)
Section 6.2 Voting of Securities Owned by the Corporation.
All stock and other securities of other corporations owned or
held by the corporation for itself, or for other parties in any
capacity, shall be voted, and all proxies with respect thereto
shall be executed, by the person authorized to do so by
resolution of the Board of Directors, or, in the absence of such
authorization, by the Chairman of the Board of Directors, the
President, or any Vice President. (Del. Code Ann. tit. 8,
Section 123)
ARTICLE VII
SHARES OF STOCK
Section 7.1 Form and Execution of Certificates. The shares
of the corporation shall be represented by certificates, provided
that the Board of Directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes
or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the corporation.
Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and
upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the
corporation by, the Chairman of the Board of Directors or the
President or a Vice President, and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of
the corporation representing the number of shares registered in
certificate form. Any or all the signatures on the certificate
may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he
were such officer, transfer agent or registrar at the date of
issue. (Del. Code Ann., tit. 8, Section 158)
Section 7.2 Lost Certificates. The corporation may issue a
new certificate of stock or uncertificated shares in place of any
certificate theretofore issued by the corporation alleged to have
been lost, stolen or destroyed; and the corporation may require
the owner of such lost, stolen or destroyed certificate, or his
legal representative, to give the corporation a bond sufficient
to indemnify it against any claim that may be made against the
corporation on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate
or uncertificated shares. (Del. Code Ann., tit 8, Section 167)
<PAGE>
Section 7.3 Transfers. Transfers of record of shares of
stock of the corporation shall be made only upon its books by the
holders thereof, in person or by attorney duly authorized, and
upon the surrender of a properly endorsed certificate or
certificates for a like number of shares. (Del. Code Ann., tit.
6, Section 8401(1))
Section 7.4 Fixing Record Dates. 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 entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of
Directors may fix, 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: (a) 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; and (b) the
record date for determining stockholder 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.
(Del. Code Ann., tit. 8, Section 213)
Section 7.5 Registered Stockholders. The corporation shall
be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such
share or shares on the part of any other person whether or not it
shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware. (Del. Code Ann., tit 8,
Sections 213(a), 219)
Section 7.6 Issuance, Transfer and Resignation of Shares.
The Board of Directors may make such rules and regulations, not
inconsistent with law or with these Bylaws, as it may deem
advisable concerning the issuance, transfer and registration of
certificates for shares of the capital stock of the corporation.
The Board of Directors may appoint a transfer agent or registrar
of transfers, or both, and may require all certificates for
shares of the corporation to bear the signature of either or
both.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 8.1 Execution of Other Securities. All bonds,
debentures and other corporate securities of the corporation,
other than stock certificates, may be signed by the Chairman of
the Board of Directors, the President or any Vice President, or
such other person as may be authorized by the Board of Directors,
and the corporate seal impressed thereon or a facsimile
<PAGE>
of such seal imprinted thereon and attested by the signature of
the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer; provided, however, that where any such bond,
debenture or other corporate security shall be authenticated by
the manual signature of a trustee under an indenture pursuant to
which such bond, debenture or other corporate security shall be
issued, the signatures of the persons signing and attesting the
corporate seal on such bond, debenture or other corporate
security may be the imprinted facsimile of the signature of such
persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee
as aforesaid, shall be signed by the Treasurer or an Assistant
Treasurer of the corporation or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon
the facsimile signature of such person. In case any officer who
shall have signed or attested any bond, debenture or other
corporate security, or whose facsimile signature shall appear
thereon or on any such interest coupon, shall have ceased to be
such officer before the bond, debenture or other corporate
security so signed or attested shall have been delivered, such
bond, debenture or other corporate security nevertheless may be
adopted by the corporation and issued and delivered as though the
person who signed the same or whose facsimile signature shall
have been used thereon had not ceased to be such officer of the
corporation. (Del. Code Ann., tit. 8, Sections 103(a), 142(a))
ARTICLE IX
DIVIDENDS
Section 9.1 Declaration of Dividends. Dividends upon the
capital stock of the corporation, subject to the provisions of
the Certificate of Incorporation, if any, may be declared by or
under the direction of the Board of Directors pursuant to law at
any regular or special meeting or as may be otherwise provided by
these Bylaws. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. (Del. Code Ann., tit. 8, Sections
170, 173)
Section 9.2 Dividend Reserve. Before payment of any
dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the Board
of Directors may from time to time, in its absolute discretion,
think proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the
Board of Directors shall think conducive to the interests of the
corporation; and the Board of Directors may modify or abolish any
such reserve in the manner in which it was created. (Del. Code
Ann., tit. 8, Section 171)
ARTICLE X
FISCAL YEAR
Section 10.1 Fiscal Year. Unless otherwise fixed by
resolution of the Board of Directors, the 52/53 week fiscal year
of the corporation shall end on the Saturday closest to the 31st
day of the month of December of each year.
<PAGE>
ARTICLE XI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 11.1 Directors and Executive Officers. The
corporation shall indemnify its directors and executive officers
to the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the corporation to provide broader
indemnification rights than said Law permitted the corporation to
provide prior to such amendment); provided, however, that the
corporation may limit the extent of such indemnification by
individual contracts with its directors and executive officers;
and, provided, further, that, unless otherwise set forth in a
contract between the corporation and a director or executive
officer, the corporation shall not be required to indemnify any
director or executive officer in connection with any proceeding
(or part thereof) initiated by such person or any proceeding by
such person against the corporation or its directors, officers,
employees or other agents unless (i) such indemnification is
expressly required to be made by law; (ii) the proceeding was
authorized by the Board of Directors of the corporation or (iii)
such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation
under the Delaware General Corporation Law. (Del. Code Ann.,
tit. 8, Section 145)
Section 11.2 Other Officers, Employees and Other Agents.
The corporation shall have the power to indemnify its other
officers, employees and other agents as set forth in the Delaware
General Corporation Law.
Section 11.3 Good Faith. For purposes of any determination
under this Bylaw, a director or executive officer shall be deemed
to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that his
conduct was unlawful, if his action is based on the records or
books of account of the corporation or another enterprise, or on
information supplied or reports made to him by the officers of
the corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the corporation or
another enterprise or on information or records given or reports
made to the corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert
selected with reasonable care by the corporation or another
enterprise. The term "another enterprise" as used in this
Section 11.3 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise, including any employee
benefit plan, of which such person is or was serving at the
request of the corporation as a director, officer, employee or
other agent. The provisions of this Section 11. 3 shall not be
deemed to be exclusive and/or to limit in any way the
circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth by the Delaware General
Corporation Law. (Del. Code Ann., tit. 8, Section 141(e))
<PAGE>
Section 11.4 Expenses. The corporation shall advance,
prior to the final disposition of any proceeding, promptly
following request therefor, all expenses incurred by any director
or executive officer in connection with such proceeding upon
receipt of an undertaking by or on behalf of such person to repay
said amounts if it should be determined ultimately that such
person is not entitled to be indemnified under this Bylaw or
otherwise. (Del. Code Ann., tit. 8, Section 145(e))
Notwithstanding the foregoing, unless otherwise determined
pursuant to Section 11.5 of this Bylaw, no advance shall be made
by the corporation if a determination is reasonably and promptly
made (a) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding,
or (b) if such quorum is not obtainable, or, even if obtainable,
a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion that, based upon the facts
known to the decision-making party at the time such determination
is made, such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the corporation, or, with respect to any criminal
proceeding, such person believed or had reasonable cause to
believe that his conduct was unlawful.
Section 11.5 Enforcement. Without the necessity of
entering into an express contract, all rights to indemnification
and advances under this Bylaw shall be deemed to be contractual
rights and be effective to the same extent and as if provided for
in a contract between the corporation and the director or
executive officer who serves in such capacity at any time while
this Bylaw and other relevant provisions of the Delaware General
Corporation Law and other applicable law, if any, are in effect.
Any right to indemnification or advances granted by this Bylaw to
a director or executive officer shall be enforceable by or on
behalf of the person holding such right in any court of competent
jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part, or (ii) no disposition of such claim
is made within thirty (30) days of request therefor. The
claimant in such enforcement action, if successful in whole or in
part, shall be entitled to be paid also the expense of
prosecuting his claim. It shall be a defense to any such action
that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount claimed; but
the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have
made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that
the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
Section 11.6 Non-Exclusivity of Rights. The rights
conferred on any person by this Bylaw shall not be exclusive of
any other right which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation,
Bylaw, agreement, vote of
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stockholders or disinterested directors or otherwise, both as to
action in this official capacity and as to action in another
capacity while holding office. The corporation is specifically
authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting
indemnification and advances, as provided by law. (Del. Code
Ann., tit. 8, Section 145(f))
Section 11.7 Survival of Rights. The rights conferred on
any person by this Bylaw shall continue as to a person who has
ceased to be a director, officer, employee or other agent and
shall inure to the benefit of the heirs, executors and
administrators such a person. (Del. Code Ann., tit. 8, Section
145 (j))
Section 11.8 Amendments. Any repeal or modification of
this Bylaw shall only be prospective and shall not affect the
rights under this Bylaw in effect at the time of the alleged
occurrence of any action or omission to act that is the cause of
any proceeding against any agent of the corporation.
Section 11.9 Savings Clause. If this Article XI of the
Bylaws or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the corporation
shall nevertheless indemnify each agent to the full extent
permitted by any applicable portion of this Bylaw that shall not
have been invalidated, or by any other applicable law.
ARTICLE XII
NOTICES
Section 12.1 Notice to Stockholders. Whenever under any
provisions of these Bylaws notice is required to be given to any
stockholder, it shall be given in writing, timely and duly
deposited in the United States mail, postage prepaid, and
addressed to his last known post office address as shown by the
stock record of the corporation or its transfer agent. (Del.
Code Ann., tit. 8, Section 222)
Section 12.2 Notice to Directors. Any notice required to
be given to any director may be given by the method stated in
Section 12.1, or by telegram, or as otherwise permitted by these
Bylaws, except that such notice other than one which is delivered
personally shall be sent to such address as such director shall
have filed in writing with the Secretary, or, in the absence of
such filing, to the last known post office address of such
director.
Section 12.3 Address Unknown. If no address of a
stockholder or director be known, notice may be sent to the
office of the corporation required to be maintained pursuant to
Section 1.2 hereof.
Section 12.4 Affidavit of Mailing. An affidavit of
mailing, executed by a duly authorized and competent employee of
the corporation or its transfer agent appointed with respect to
the class of stock affected, specifying the name and address or
the names and
<PAGE>
addresses of the stockholder or stockholders, or director or
directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained. (Del. Code Ann.,
tit. 8, Section 222)
Section 12.5 Time Notices Deemed Given. All notices given
by mail, as above provided, shall be deemed to have been given as
at the time of mailing; and all notices given by telegram shall
be deemed to have been given as at the sending time recorded by
the telegraph company transmitting the notices.
Section 12.6 Methods of Notice. It shall not be necessary
that the same method of giving notice be employed in respect of
all directors: One permissible method may be employed in respect
of any one or more directors; and any other permissible method or
methods may be employed in respect of any other or others.
Section 12.7 Failure to Receive Notice. The period or
limitation of time within which any stockholder may exercise any
option or right, or enjoy any privilege or benefit, or be
required to act, or within which any director may exercise any
power or right, or enjoy any privilege, pursuant to any notice
sent him in the manner above provided, shall not be affected or
extended in any manner by the failure of such stockholder or such
director to receive such notice.
Section 12.8 Notice to Person with Whom Communication is
Unlawful. Whenever notice is required to be given, under any
provision of law or of the Certificate of Incorporation or Bylaws
of the corporation, to any person with whom communication is
unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice
to such person. Any action or meeting which shall be taken or
held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the
corporation is such as to require the filing of a certificate
under any provision of the Delaware General Corporation Law, the
certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to
receive notice except such persons with whom communication is
unlawful. (Del. Code Ann., tit. 8, Section 230)
ARTICLE XIII
AMENDMENTS
Section 13.1 Amendments. These Bylaws may be repealed,
altered or amended or new Bylaws adopted by the affirmative vote
of sixty-six and two-thirds percent (66-2/3%) of the outstanding
capital stock of the corporation entitled to vote thereon. The
Board of Directors shall also have the authority, if such
authority is conferred upon the Board of Directors by the
Certificate of Incorporation, to rescind, repeal, alter or amend
these Bylaws or adopt new Bylaws (including, without limitation,
the amendment of any Bylaw setting forth the number of
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directors who shall constitute the whole Board of Directors)
subject to the power of the stockholders to change or repeal such
Bylaws. (Del. Code Ann., tit. 8, Sections 109(a), 122(6), 216)
ARTICLE XIV
LOANS TO OFFICERS AND OTHERS
Section 14.1 Certain Corporate Loans and Guaranties. The
corporation may make loans of money or property to, or guarantee
the obligations of, or otherwise assist any officer or other
employee who is a director of the corporation or its parent or
any subsidiary, or adopt an employee benefit plan or plans
authorizing such loans or guaranties, upon the approval of the
Board of Directors alone if the Board of Directors determines
that such a loan or guaranty or plan may reasonably be expected
to benefit the corporation.
