APPENDIX A
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of ------------ 1999, pursuant to
Section 253 of the Delaware General Corporation Law (the "DGCL") and Section
607.1104 of the Florida Business Corporation Act (the "FBCA"), between American
Metals Service, Inc., a Florida corporation having its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Company"), and American Metals Service, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company, having its principal place of business
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Surviving
Company").
W I T N E S S E T H:
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WHEREAS, the Company is a corporation duly organized and existing under the
laws of the State of Florida with total authorized capital stock of Six Million
(6,000,000) shares, $.01 par value per share (the "Company Common Stock").
WHEREAS, the Surviving Company is a corporation duly organized and existing
under the laws of the State of Delaware and will have, effective at the
Effective Date (as defined below) total authorized capital stock of Twelve
Million (12,000,000) shares, $.01 par value per share (the "Surviving Company
Common Stock").
WHEREAS, the respective Boards of Directors of the Company and the
Surviving Company have each adopted resolutions approving this Agreement and
Plan of Merger.
NOW THEREFORE, in consideration of the foregoing and the undertakings
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. MERGER. The Company shall be merged with and into the Surviving Company
pursuant to Section 253 of the DGCL and Section 607.1104 the FBCA. The Surviving
Company shall survive the merger herein contemplated and shall continue to be
governed by the laws of the State of Delaware. The separate corporate existence
of the Company shall cease forthwith upon the Effective Date. The merger of the
Company with and into the Surviving Company shall hereinafter be referred to as
the "Merger."
2. SHAREHOLDER APPROVAL. As soon as practicable after the execution of this
Agreement and Plan of Merger, the Company and the Surviving Company shall, if
necessary under the DGCL and FBCA, submit this Agreement and Plan of Merger to
their respective shareholders for approval.
3. EFFECTIVE DATE. The Merger shall be effective upon the filing of a
Certificate of Ownership and Merger with the Secretary of State of the State of
Delaware and Articles of Merger with the Secretary of State of the State of
Florida, which filings shall be made as soon as practicable after all required
shareholder approvals have been obtained. The time of such effectiveness shall
hereinafter be referred to as the "Effective Date."
4. COMMON STOCK OF THE COMPANY. On the Effective Date, by virtue of the
Merger and without any action on the part of the holders thereof, each share of
Company Common Stock shall cease to exist and shall be changed and converted
into one fully paid and non-assessable share of the Surviving Company Common
Stock.
5. STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Company
Common Stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of the Surviving Company Common Stock into which the shares
of the Company represented by such certificates have been converted as herein
provided. The registered owner on the books and records of the Surviving Company
or its transfer agent of any such outstanding stock certificate shall, until
such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Company or its transfer agent, have and
be entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of the Surviving
Company evidenced by such outstanding certificate as above provided. On request,
the Surviving Company will issue new certificates to anyone who holds stock
certificates of the Company. Any request for new certificates will be subject to
normal stock transfer requirements including proper endorsement, signature
guarantee, if required, and payment of applicable taxes.
6. STOCK OPTION PLAN.
(a) On the Effective Date, if any options or rights granted under the
Company's 1983 incentive stock option plan remain outstanding,
then the Surviving Company shall assume the outstanding and
unexercised portions of such options and such options shall be
changed and converted into options to purchase Surviving Company
Common Stock, such that an option to purchase one (1) share of
the Company Common Stock shall be converted into an option to
purchase one (1) share of the Surviving Company Common Stock. No
other changes in the terms and conditions of such options shall
occur.
(b) One (1) share of the Surviving Company Common Stock shall be
reserved for issuance under the Company's 1983 stock option plan
from and after the Effective Date for each option to purchase one
(1) share of the Company Common Stock so reserved immediately
prior to the Effective Date.
(c) No "additional benefits" within the meaning of Section 424(a)(2)
of the Internal Revenue Code of 1986 (as amended) shall be
accorded to the option holders pursuant to the assumption of
their options.
7. EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving Company
shall assume all obligations of the Company under any and all employee benefit
plans in effect as of such date with respect to which employee rights or accrued
benefits are outstanding as of such date. On the Effective Date, the Surviving
Company shall adopt and continue in effect all such employee benefit plans upon
the same terms and conditions as were in effect immediately prior to the Merger.
8. SUCCESSION. On the Effective Date, the Surviving Company shall succeed
to all of the rights, privileges, debts, liabilities, powers and property of the
Company in the manner of and as more fully set forth in Section 259 of the DGCL.
Without limiting the foregoing, upon the Effective Date, all property, rights,
privileges, franchises, patents, trademarks, licenses, registrations, and other
assets of every kind and description of the Company shall be transferred to,
vested in and devolved upon the Surviving Company without further act or deed
and all property, rights, and every other interest of the Company and the
Surviving Company shall be as effectively the property of the Surviving Company
as they were of the Company and the Surviving Company, respectively. All rights
of creditors of the Company and all liens upon any property of the Company shall
be preserved unimpaired, and all debts, liabilities and duties of the Company
shall attach to the Surviving Company and may be enforced against it to the same
extent as if said debts, liabilities and duties had been incurred or contracted
by it.
9. CERTIFICATE OF INCORPORATION AND BYLAWS. From and after the Effective
Date, the Certificate of Incorporation, substantially in the form of Exhibit A
hereto, and Bylaws, substantially in the form of Exhibit B hereto, of the
Surviving Company shall continue in full force and effect until further amended
in accordance with the provisions thereof and applicable law.
10. DIRECTORS AND OFFICERS. The members of the Board of Directors and the
officers of the Surviving Company on the Effective Date shall continue in office
until the expiration of their respective terms of office and until their
successors have been elected and qualified.
11. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Company or by its successors and assigns, there shall be executed and
delivered on behalf of the Company such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action as
shall be appropriate or necessary in order to best or perfect in or to confirm
of record or otherwise in the Surviving Company the title to and possession of
all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of the Company, and otherwise to carry out the purposes
of this Agreement and Plan of Merger, and the officers and directors of the
Company are fully authorized in the name and on behalf of the Company or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
12. ABANDONMENT. Notwithstanding the approval of this Merger Agreement by
the shareholders of the Company or by the sole stockholder of the Surviving
Company, at any time before the Effective Date, (a) this Merger Agreement may be
terminated and the Merger may be abandoned by the Board of Directors of either
the Company or the Surviving Company or both, including by reason of a
determination, in the sole discretion of either Board of Directors, that holders
of an unacceptable number of shares intend to exercise their statutory appraisal
rights pursuant to Section 607.1320 of the FBCA, or (b) the consummation of the
Merger may be deferred for a reasonable period of time if, in the opinion of the
Boards of Directors of the Company and the Surviving Company, such action would
be in the best interests of such corporations. In the event of termination of
this Merger Agreement, this Merger Agreement shall become void and of no effect
and there shall be no liability on the part of either corporation or their
respective Board of Directors or stockholders with respect thereto, except that
the Company shall pay all expenses incurred in connection with the Merger or in
respect of this Merger Agreement or relating thereto.
13. CONDITIONS TO MERGER. The obligation of the corporations to effect the
transactions contemplated hereby is subject to satisfaction of the following
conditions (any or all of which may be waived by either of the corporations in
its sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the shareholders of the
Company in accordance with applicable provisions of the FBCA;
(b) the Company, as sole stockholder of the Surviving Company, shall
have approved the Merger in accordance with the DGCL; and
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of the Company to be
material to the consummation of the Merger shall have been
obtained.
14. AMENDMENT. This Agreement and Plan of Merger may be amended by the
Boards of Directors of the Company and the Surviving Company at any time prior
to the Effective Date, provided that an amendment made subsequent to the
approval of this Agreement and Plan of Merger by either the shareholders of the
Company or the sole stockholder of the Surviving Company shall not (1) alter or
change the amount or kind of shares, securities, cash, property and/or rights to
be received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such corporation, (2) alter or change any term of the
Certificate of Incorporation of the Surviving Company to be effected by the
Merger or (3) alter or change any of the terms and conditions of this Agreement
and Plan of Merger if such alteration or change would adversely affect the
holders of any class or series of the stock of such corporation.
15. GOVERNING LAW. This Agreement and Plan of Merger and the legal
relations between the parties shall be governed by and construed in accordance
with the internal laws of the State of Delaware.
16. DISSENTERS' RIGHTS. Shareholders of the Company who dissent from the
Merger pursuant to Section 607.1320 of the FBCA may be entitled, if they comply
with the provisions of the FBCA regarding the rights of dissenting shareholders,
to be paid the fair value of their shares.
17. COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement and Plan of Merger, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
and Plan of Merger to be executed and attested on its behalf by its officers
hereunto duly authorized, as of the date first above written.
AMERICAN METALS SERVICE, INC.,
a Florida corporation
By:
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Name:
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Title:
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ATTESTED
By:
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Name:
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Title:
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AMERICAN METALS SERVICE, INC.,
a Delaware corporation
By:
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Name:
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Title:
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ATTESTED
By:
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Name:
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Title:
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EXHIBIT A TO APPENDIX A
CERTIFICATE OF INCORPORATION
OF
AMERICAN METALS SERVICE, INC.
(Pursuant to Section 101 and 102 of the
General Corporation Law of the State of Delaware)
The undersigned, in order to form a corporation pursuant to Sections 101
and 102 of the General Corporation Law of the State of Delaware, does hereby
certify as follows:
FIRST: The name of the corporation (the "Corporation") is American Metals
Service, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, New Castle County,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of the registered agent of the Corporation
in the State of Delaware at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation
shall have the authority to issue is 12,000,000 shares of common stock, par
value $0.01 per share. The holders of shares of Common Stock shall be entitled
to vote on all matters at all meetings of the stockholders of the Corporation,
and shall be entitled to one vote for each share of Common Stock entitled to
vote at any such meeting.
FIFTH: The name and mailing address of the sole incorporator is as follows:
NAME ADDRESS
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▇▇▇ ▇. ▇▇▇▇▇▇ c/o Rosenman & Colin LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
SIXTH: In furtherance and not in limitation of the powers conferred by law,
subject to any limitations contained elsewhere in this Certificate of
Incorporation, By-laws of the Corporation may be adopted, amended or repealed by
the Board of Directors of the Corporation, provided that any By-laws adopted by
the Board of Directors may be amended or repealed by the stockholders entitled
to vote thereon.
SEVENTH: Election of directors need not be by written ballot.
EIGHTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that nothing in this Article EIGHTH shall
eliminate or limit the liability of any director (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. Neither the amendment nor repeal of this
Article EIGHTH, nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article EIGHTH, shall eliminate or reduce
the effect of this Article EIGHTH in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Article EIGHTH, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
NINTH: The Corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may by amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all expenses, liabilities, or other matters referred to in or
covered by said section, and the indemnification provided for herein shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
TENTH: The number of directors of the Corporation shall be fixed as
provided by the By-laws of the Corporation and may be increased or decreased
from time to time in such a manner as may be prescribed by the By-laws.
IN WITNESS WHEREOF, I have hereunto signed my name and affirm, under
penalty of perjury, that this Certificate is my act and deed and that the facts
stated herein are true this ______ day of _________ 1999.
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▇▇▇ ▇. ▇▇▇▇▇▇
Sole Incorporator
EXHIBIT B TO APPENDIX A
BY-LAWS OF
AMERICAN METALS SERVICE, INC.
(a Delaware corporation)
ARTICLE I
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Meetings of Stockholders
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SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders of
AMERICAN METALS SERVICE, INC. (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 on such date and at such time as may be fixed by the Board
of Directors (the "Board") or if no date and time are so fixed, on the second
Tuesday, in May of each year, if not a legal holiday, and if a holiday, then on
the next succeeding day not a legal holiday, at the office of the Corporation or
at such other place and at such hour as shall be designated by the Board, or, if
no such time be fixed, then at 10:00 o'clock in the forenoon.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board or by
the holder or holders on the date of the call of not less than 25% of the issued
and outstanding shares of capital stock entitled to vote at such special
meeting.
SECTION 3. NOTICE OF MEETINGS. Notice of the place, date and hour of each
annual and special meeting of the stockholders and the purpose or purposes
thereof shall be given personally or by mail in a postage prepaid envelope, not
less than ten or more than 60 days before the date of such meeting, to each
stockholder entitled to vote at such meeting, and, if mailed, it shall be
directed to such stockholder at his address as it appears on the record of
stockholders, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address. Any such
notice for any meeting other than the annual meeting shall indicate that it is
being issued at the direction of the Board. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, prior to the conclusion
of such meeting, protest the lack of notice thereof, or who shall, either before
or after the meeting, submit a signed waiver of notice, in person or by proxy.
Unless the Board shall fix a new record date for an adjourned meeting, notice of
such adjourned meeting need not be given if the time and place to which the
meeting shall be adjourned were announced at the meeting at which the
adjournment is taken.
SECTION 4. QUORUM. At all meetings of the stockholders, the holders of the
majority of the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote shall be present in person or by proxy to
constitute a quorum for the transaction of business. In the absence of a quorum,
the holders of a majority of the shares of the capital stock present in person
or by proxy and entitled to vote may adjourn the meeting from time to time. At
any such adjourned meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting as originally called.
The stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 5. ORGANIZATION. At each meeting of the stockholders, the Chairman
of the Board, or, if none or in the Chairman's absence, the Chief Executive
Officer, or, if none or in the absence of the Chief Executive Officer, the Vice
Chairman of the Board, or, if none or in the absence of the Vice Chairman of the
Board, the President, or, if none or in the President's absence any Vice
President of the Corporation, shall act as chairman of the meeting or, if no one
of the foregoing officers is present, a chairman shall be chosen at the meeting
by the stockholders entitled to vote who are present in person or by proxy. The
Secretary, or in his absence or inability to act, the person whom the chairman
of the meeting shall appoint secretary of the meeting, shall act as secretary of
the meeting and keep the minutes thereof.
SECTION 6. ORDER OF BUSINESS. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
SECTION 7. VOTING. Except as otherwise provided by statute or the
Certificate of Incorporation, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 5 of
Article V of these By-laws as the record date for the
determination of the stockholders who shall be entitled to notice
of and to vote at such meeting; or
(b) if such record date shall not have been so fixed, then at the
close of business on the day next preceding the day on which
notice thereof shall be given.
Each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for him by a proxy signed by such
stockholder or his attorney-in-fact. Any such proxy shall be delivered to the
secretary of such meeting at or prior to the time designated in the order of
business for so delivering such proxies. Except as otherwise required by statute
or by the Certificate of Incorporation, any corporate action to be taken by vote
of the stockholders shall require the vote of a majority of the votes cast at a
meeting of the holders of the capital stock of the Corporation entitled to vote
thereon. Unless required by statute, or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by ballot. On a
vote by ballot, each ballot shall be signed by the stockholder voting or by his
proxy, if there be such proxy, and shall state the number of shares voted.
SECTION 8. LIST OF STOCKHOLDERS. A list of stockholders as of the record
date, certified by the Secretary of the Corporation or by the transfer agent for
the Corporation, shall be produced at any meeting of the stockholders upon the
request of any stockholder made at or prior to such meeting.
SECTION 9. INSPECTORS. The Board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting shall appoint
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting, the existence of
a quorum, the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the chairman
of the meeting or any stockholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, request or matter determined by them
and shall execute a certificate of any fact found by them. No director or
candidate for the office of director shall act as an inspector of an election of
directors. Inspectors need not be stockholders.
SECTION 10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action required
or permitted to be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders, if any, who
have not consented in writing.
ARTICLE II
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Board of Directors
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SECTION 1. GENERAL POWERS. The business, property and affairs of the
Corporation shall be managed by or under the direction of the Board. The Board
may exercise all such authority and powers of the Corporation and do all such
lawful acts and things as are not by statute or the Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
SECTION 2. NUMBER, INCREASE OR DECREASE THERETO AND TERM OF OFFICE. The
Board shall consist of one or more directors as may be fixed from time to time
by action of the Board, which number may be increased and decreased as provided
in this Section 2 of this Article II, one of whom may be selected by the Board
to be its Chairman. Directors need not be stockholders.
The Board, by the vote of a majority of the entire Board, may increase the
number of directors and may elect directors to fill the vacancies created by any
such increase in the number of directors until their successors are duly elected
and qualified. The Board, by the vote of a majority of the entire Board, may
decrease the number of directors, but any such decrease shall not affect the
term of office of any director. Vacancies occurring by reason of any such
increase or decrease shall be filled in accordance with Section 13 of this
Article II.
SECTION 3. PLACE OF MEETING. Meetings of the Board shall be held at the
principal office of the Corporation in the State of New Jersey or at such other
place, within or without such state, as the Board may from time to time
determine or as shall be specified in the notice of any such meeting.
SECTION 4. ANNUAL MEETING. The Board shall meet for the purpose of
organization, the election of officers and the transaction of other business, as
soon as practicable after each annual meeting of the stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
SECTION 5. REGULAR MEETING. Regular meetings of the Board shall be held at
such times and places as the Board shall from time to time fix. If any day fixed
for a regular meeting shall be a legal holiday at the place where the meeting is
to be held, then the meeting which would otherwise be held on that day shall be
held at the same hour on the next succeeding business day. Notice of regular
meetings of the Board need not be given except as otherwise required by statute
or these By-laws.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board may be called by
the Chairman of the Board, the Chief Executive Officer or by a majority of the
entire Board.
SECTION 7. NOTICE OF MEETINGS. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required) shall be given
by the Secretary as hereinafter provided in this Section 7, in which notice
shall be stated the time and place of the meeting. Except as otherwise required
by these By-laws, such notice need not state the purposes of such meeting.
Notice of each such meeting shall be mailed, postage prepaid, to each director,
addressed to him at his residence or usual place of business, by first class
mail, at least two days before the day on which such meeting is to be held, or
shall be sent addressed to him at such place by facsimile telegraph, telex,
cable or wireless, or be delivered to him personally or by telephone, at least
24 hours before the time at which such meeting is to be held. A written waiver
of notice, signed by the director entitled to notice, whether before or after
the time stated therein shall be deemed equivalent to notice. Notice of any such
meeting need not be given to, any director who shall, either before or after the
meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
SECTION 8. QUORUM AND MANNER OF ACTING. Except as hereinafter provided, a
majority of the entire Board shall be present in person or by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time at any
meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting; and, except as otherwise required by statute or the
Certificate of Incorporation, the act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board. In the
absence of a quorum at any meeting of the Board, a majority of the directors
present thereat may adjourn such meeting to another time and place. Notice of
the time and place of any such adjourned meeting shall be given to the directors
who were not present at the time of the adjournment and, unless such time and
place were announced at the meeting at which the adjournment was taken, to the
other directors. At any adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called. The directors shall act only as a Board and the individual
directors shall have no power as such.
SECTION 9. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the Board at a meeting may be taken without a meeting if all members of
the Board consent in writing to the adoption of the resolutions authorizing such
action. The resolutions and written consents thereto shall be filed with the
minutes of the Board.
SECTION 10. TELEPHONIC PARTICIPATION. One or more members of the Board may
participate in a meeting by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
SECTION 11. ORGANIZATION. At each meeting of the Board, the Chairman or, in
his absence, the Vice Chairman or, in his absence, the Chief Executive officer
or, in his absence, the President or, in his absence, another director chosen by
a majority of the directors present shall act as chairman of the meeting and
preside thereat. The Secretary (or, in his absence, any person who shall be an
Assistant Secretary, if any of them shall be present at such meeting, or in the
absence of an Assistant Secretary, such person as shall be appointed by the
Chairman) shall act as secretary of the meeting and keep the minutes thereof.
SECTION 12. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the Board, the Chief
Executive Officer, the President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 13. VACANCIES. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. If there are no directors in office, then a special
meeting of stockholders for the election of directors may be called and held in
the manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute less
than a majority of the whole Board (as constituted immediately prior-to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office, in the manner provided by statute. When one or more directors shall
resign from the Board, 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 until their successors shall be elected and qualified.
SECTION 14. REMOVAL OF DIRECTORS. Except as otherwise provided in the
Certificate of Incorporation or in these By-laws, any director may be removed,
either with or without cause, at any time, by the affirmative vote of the
holders of record of a majority of the issued and outstanding stock entitled to
vote for the election of directors of the Corporation given at a special meeting
of the stockholders called and held for the purpose; and the vacancy in the
Board caused by such removal may be filled by such stockholders at such meeting,
or, if the stockholders shall fail to fill such vacancy, as in these By-laws
provided.
SECTION 15. COMPENSATION. The Board shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity.
ARTICLE III
-----------
Executive and Other Committees
------------------------------
SECTION 1. COMMITTEES. The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
two or more of the directors of the Corporation. The Board 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. Any such committee, to
the extent provided in the resolution shall have and may exercise the powers of
the Board in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of any
member of such committee or committees, 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 to act
at the meeting in the place of any such absent or disqualified member. Each
committee shall keep written minutes of its proceedings and shall report such
minutes to the Board when required. All such proceedings shall be subject to
revision or alteration by the Board; provided, however, that third parties shall
not be prejudiced by such revision or alteration.
SECTION 2. GENERAL. A majority of any committee may determine its action
and fix the time and place of its meetings, unless the Board shall otherwise
provide. Notice of such meeting shall be given to each member of the committee
in the manner provided for in Article II, Section 7. The Board shall have any
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such committee. Nothing herein shall be deemed to prevent the Board
from appointing one or more committees consisting in whole or in part of persons
who are not directors of the Corporation; provided, however, that no such
committee shall have or may exercise any authority of the Board.
SECTION 3. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by any committee at a meeting may be taken without a meeting if all of the
members of the committee consent in writing to the adoption of the resolutions
authorizing such action. The resolutions and written consents thereto shall be
filed with the minutes of the committee.
SECTION 4. TELEPHONE PARTICIPATION. One or more members of a committee may
participate in a meeting by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
ARTICLE IV
------------
Officers
--------
SECTION 1. NUMBER AND QUALIFICATIONS. The officers of the Corporation shall
include a Chairman of the Board, who shall be chosen from among the directors,
and a President and a Secretary, and may include a Vice Chairman of the Board,
who shall be chosen from among the directors, and one or more Executive Vice
Presidents, one or more Vice Presidents, a Chief Executive Officer, a Chief
Financial Officer and a Treasurer. Any two or more offices may be held by the
same person, except that no person shall hold at one time the offices of
President and Secretary; provided that when all of the issued and outstanding
stock of the Corporation is held by one person, such person may hold all or any
combination of offices. Such officers shall be elected from time to time by the
Board, each to hold office until the meeting of the Board following the next
annual meeting of the stockholders, or until his successor shall have been duly
elected and shall have qualified or until his death, or until he shall have
resigned, or have been removed, as hereinafter provided in these By-laws. The
Chairman of the Board or the President shall have the power to appoint such
other officers (including one or more Assistant Treasurers and one or more
Assistant Secretaries) and such agents, as may be necessary or desirable for the
business of the Corporation. Such other officers and agents shall have such
duties and shall hold their offices for such terms as may be prescribed by the
Board or by the appointing authority.
SECTION 2. RESIGNATIONS. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Board, the Chairman of
the Board, the Chief Executive Officer, the Vice Chairman of the Board, the
President or the Secretary. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3. REMOVAL. Any officer or agent of the corporation may be removed,
either with or without cause, at any time, by the Board at any meeting of the
Board or, except in the case of an officer or agent elected or appointed by the
Board, by the Chairman of the Board or the President.
SECTION 4. VACANCIES. A vacancy in any office, whether arising from death,
resignation, removal or any other cause, may be filled for the unexpired portion
of the term of the office which shall be vacant, in the manner prescribed in
these By-laws for the regular election or appointment to such office.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Board of Directors may from time to
time, by a majority vote of the whole Board of Directors, designate either the
Chairman of the Board or the President as the Chief Executive Officer of the
Corporation. The Chief Executive Officer shall have general and active
supervision over the business and affairs of the Corporation, subject, however,
to the control of the Board. He shall see that all orders and resolutions of the
Board are carried into effect. He may sign, with the Chief Financial Officer,
the Treasurer, or the Secretary or Assistant Secretary, certificates of stock of
the Corporation. He may sign, execute and deliver in the name of the
Corporation, all deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in cases where the signing, execution or
delivery thereof shall be expressly delegated by the Board or by these By-laws
to some other officer or agent of the Corporation or where any of them shall be
required by law or otherwise to be signed, executed or delivered.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside
at all meetings of the stockholders and of the Board, at which he is present,
and shall perform such other duties as from time to time may be prescribed by
the Board of Directors.
SECTION 7. THE PRESIDENT. The President may sign, with the Chief Financial
Officer, the Treasurer or the Secretary or an Assistant Treasurer or Assistant
Secretary, certificates of stock of the Corporation and in general, he shall
perform all duties incident to the office of President and such other duties as
from time to time may be assigned to him by the Board.
SECTION 8. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board shall
perform such duties as from time to time may be prescribed by the Board of
Directors or the Chairman of the Board.
SECTION 9. THE VICE PRESIDENTS. Each Executive Vice President and each
other Vice President shall have such powers and perform such duties as the
Board, the Chief Executive Officer or the President may from time to time
prescribe and shall perform such other duties as may be prescribed by the
By-laws. Any Executive Vice President or other Vice President may sign, with the
Chief Financial Officer or the Treasurer or the Assistant Treasurer or the
Secretary or an Assistant Secretary, certificates of stock of the Corporation.
At the request of the Chief Executive Officer or the President, or in case of
either officer's disability or other inability to act, the Board of Directors
may, by a majority vote of the entire Board, designate any one of the Executive
Vice Presidents or other Vice Presidents to perform the duties of the Chief
Executive Officer or the President for such time and subject to such conditions
and limitations as the Board may determine.
SECTION 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall:
(a) have charge and custody of, and be responsible for, all the funds
and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositories as may be designated by the
Board or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefor;
(f) render to the Board, whenever the Board may require, an account
of the financial condition of the corporation;
(g) have active control of and shall be responsible for all matters
pertaining to the accounts of the Corporation and its
subsidiaries, including: the supervision of the auditing of all
payrolls and vouchers of the Corporation and its subsidiaries and
the direction of the manner of certifying the same; the
supervision of the manner of keeping all vouchers for payments by
the Corporation and its subsidiaries, and all other documents
relating to such payments; the receiving, auditing and
consolidation of all operating and financial statements of the
Corporation, its various departments, divisions and subsidiaries;
the supervision of the books of account of the Corporation and
its subsidiaries, their arrangement and classification; and the
supervision of the account and auditing practices of the
Corporation and its subsidiaries; and
(h) shall perform such other duties as from time to time may be
assigned to him by the Chief Executive Officer or the Board.
SECTION 11. TREASURER. The Treasurer shall in general have all duties
incident to the position of Treasurer and such other duties as may be assigned
by the Board or the President.
SECTION 12. SECRETARY. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board and of the
stockholders, and, if requested, of the committees of the Board;
(b) see that all notices are duly given in accordance with the
provisions of the By-laws and as required by law;
(c) be custodian of the seal of the Corporation and affix and attest
the seal to all documents to be executed on behalf of the
Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to him by the Board.
SECTION 13. ASSISTANT OFFICERS. Any assistant officer shall have such
powers and duties of the officer such assistant officer assists as such officer
or the Board shall from time to time prescribe.
SECTION 14. OFFICERS' BONDS OR OTHER SECURITY. If required by the Board,
any officer of the Corporation shall give a bond or other security for the
faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
SECTION 15. COMPENSATION. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board; provided, however, that the Board may delegate to the Chairman of
the Board, the Chief Executive Officer or the President the power to fix the
compensation of officers and agents appointed by him. An officer of the
Corporation shall not be prevented from receiving compensation by reason of the
fact that he is also a director of the Corporation, but any such officer who
shall also be a director (except in the event that there is only one director of
the Corporation) shall not have any vote in the determination of the amount of
compensation paid to him.
ARTICLE V
---------
Shares, Etc.
------------
SECTION 1. STOCK CERTIFICATES. Each owner of stock of the Corporation shall
be entitled to have a certificate, in such form as shall be approved by the
Board, certifying the number of shares of stock of the Corporation owned by him.
The certificates representing shares of stock shall be signed in the name of the
Corporation by the Chairman or the Vice Chairman of the Board, or the President
or any Executive Vice President, Senior Vice President or other Vice President
and by the Treasurer or the Assistant Treasurer or the Secretary or an Assistant
Secretary and sealed with the seal of the Corporation (which seal may be a
facsimile, engraved or printed). In case any officer who shall have signed such
certificates shall have ceased to be such officer before such certificates shall
be issued, they may nevertheless be issued by the Corporation with the same
effect as if such officer were still in office at the date of their issue.
SECTION 2. BOOKS OF ACCOUNT AND RECORD OF STOCKHOLDERS. There shall be kept
correct and complete books and records of account of all the business and
transactions of the Corporation. The stock record books and the blank stock
certificate books shall be kept by the Secretary or by any other officer or
agent designated by the Board of Directors.
SECTION 3. TRANSFERS OF SHARES. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. The person in whose
name shares of stock shall stand on the record of stockholders of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation. Whenever any transfers of shares shall be made for collateral
security and not absolutely and written notice thereof shall be given to the
Secretary or to such transfer agent or transfer clerk, such fact shall be stated
in the entry of the transfer.
SECTION 4. REGULATIONS. The Board may make such additional rules and
regulations, not inconsistent with these By-laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
SECTION 5. FIXING OF RECORD DATE. The Board may fix, in advance, a date not
more than sixty nor less than ten days before the date then fixed for the
holding of any meeting of the stockholders or before the last day on which the
consent or dissent of the stockholders may be effectively expressed for any
purpose without a meeting, as the time as of which the stockholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or
may be expressed for any purpose, as the case may be, shall be determined, and
all persons who were stockholders of record of voting stock at such time, and no
others, shall be entitled to notice of and to vote at such meeting or to express
their consent or dissent, as the case may be. The Board may fix, in advance, a
date not more than sixty nor less than ten days preceding the date fixed for the
payment of any dividend or the making of any distribution or the allotment of
rights to subscribe for securities of the Corporation, or for the delivery of
evidence of rights or evidences of interest arising out of any change,
conversion or exchange of capital stock or other securities, as the record date
for the determination of the stockholders entitled to receive any such dividend,
distribution, allotment, rights or interests, and in such case only the
stockholders of record at the time so fixed shall be entitled to receive such
dividend, distribution, allotment, rights or interests.
SECTION 6. LOST, DESTROYED OR MUTILATED CERTIFICATE. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost or destroyed or which shall have been mutilated, and
the Board may, in its discretion, require such owner or his legal representative
to give to the Corporation a bond in such sum, limited or unlimited, and in such
form and with such surety or sureties as the Board in its absolute discretion
shall determine, to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such
certificate, or the issuance of such new certificate. Anything herein to the
contrary notwithstanding, the Board, in its absolute discretion, may refuse to
issue any such new certificate, except pursuant to legal proceedings under the
laws of the State of Delaware.
ARTICLE VI
----------
Contracts, Checks, Drafts, Bank Accounts, Etc.
----------------------------------------------
SECTION 1. EXECUTION OF CONTRACTS. Except as otherwise required by statute,
the Certificate of Incorporation or these By-laws, any contract or other
instrument may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these By-laws, no officer or
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it pecuniarily
liable for any purpose or to any amount, except in the ordinary course of
business and within the scope of his authority as set forth in these By-laws.
SECTION 2. LOANS. Unless the Board shall otherwise determine, the Chairman
of the Board, the Chief Executive Officer, the Vice Chairman of the Board, the
President, the Chief Financial Officer or any Executive Vice President may
effect loans and advances at any time for the Corporation from any bank, trust
company or other institution, or from any firm, corporation or individual, and
for such loans and advances may make, execute and deliver promissory notes,
bonds or other certificates or evidences of indebtedness of the Corporation, but
no officer or officers shall mortgage, pledge, hypothecate or transfer any
securities or other property of the Corporation other than in connection with
the purchase of chattels for use in the Corporation's operations, except when
authorized by the Board.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidence of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall from time to time be authorized by the Board.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may from time to time
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. For the purpose of deposit and for the purpose of collection for the
account of the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation.
SECTION 5. GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from time to
time authorize the opening and keeping of general and special bank accounts with
such banks, trust companies or other depositories as the Board may designate or
as may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the Board. The Board
may make such special rules and regulations with respect to such bank accounts,
not inconsistent with the provisions of these By-laws, as it may deem expedient.
ARTICLE VII
-----------
Offices
-------
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be as specified in the Certificate of Incorporation.
SECTION 2. OTHER OFFICES. The Corporation may also have such offices, both
within or without the State of Delaware, as the Board may from time to time
determine or the business of the Corporation may require.
ARTICLE VIII
------------
Fiscal Year
-----------
The fiscal year of the Corporation shall be fixed, and shall be subject to
change, by the Board. Unless otherwise fixed by the Board, the fiscal year of
the Corporation shall end on August 31 of each calendar year.
ARTICLE IX
----------
Seal
----
The seal of the Corporation shall be circular in form, shall bear the name
of the Corporation and shall include the words and numbers "Corporate Seal",
"Delaware" and the year of incorporation.
ARTICLE X
---------
Indemnification
---------------
Any person made or threatened to be made a party to or involved in any
action, suit or proceeding, whether civil or criminal, administrative or
investigative (hereinafter, "Proceeding") by reason of the fact that he, his
testator or intestate, is or was a director, officer or employee of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the General Corporation Law of
the State of Delaware 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) against all expense, loss
and liability (including, without limitation, judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees), actually and
necessarily incurred or suffered by him in connection with the defense of or as
a result of such Proceeding, or in connection with any appeal therein. The
Corporation shall have the power to purchase and maintain insurance for the
indemnification of such directors, officers and employees to the full extent
permitted under the laws of the State of Delaware from time to time in effect.
Such right of indemnification shall not be deemed exclusive of any other rights
of indemnification to which such director, officer or employee may be entitled.
The right to indemnification conferred in this By-Law shall be a contract right
and shall include the right to be paid by the Corporation the expenses incurred
in defending any such Proceeding in advance of its final disposition; provided,
however, that if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
services was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a Proceeding, shall be made only upon delivery to
the Corporation of an undertaking by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this By-Law or
otherwise.
ARTICLE XI
----------
Amendment
---------
The By-laws may be amended, repealed or altered by vote of the holders of a
majority of the shares of stock at the time entitled to vote in the election of
directors, except as otherwise provided in the Certificate of Incorporation. The
By-laws may also be amended, repealed or altered by the Board, but any By-law
adopted by the Board may be amended, repealed or altered by the stockholders
entitled to vote thereon as herein provided.
