form8-k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of report (Date of earliest event reported): January 19, 2010
ENZON
PHARMACEUTICALS, INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware
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0-12957
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22-2372868
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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685
Route 202/206, Bridgewater, NJ
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08807
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant's telephone number,
including area code: (908)
541-8600
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Not
Applicable
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(Former
Name or Former Address, if Changed Since Last Report)
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Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
□ Written communications pursuant to Rule
425 under the Securities Act (17 CFR 230.425)
□ Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
□ Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
□ Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.03.
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
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On January 19, 2010, the Board of
Directors of Enzon Pharmaceuticals, Inc. (the "Company") authorized an amendment
(the "Amendment") to the Company's Amended and Restated Bylaws (the "Bylaws") to
adjust the timeliness requirement for notice of stockholder business proposals
and nominations of directors at annual meetings of stockholders.
The Amendment provides that, in order
to be timely, stockholder notices must be delivered not earlier than the 120th
day, but not later than the 90th day, prior to the anniversary date of the
preceding year's annual meeting. Previously, the Bylaws provided
that, in order to be timely, stockholder notices must be delivered not earlier
than the 150th day, but not later than the 112th day, prior to the anniversary
date of the preceding year's annual meeting.
As a result of the Amendment,
stockholder notices in connection with the Company's 2010 annual meeting of
stockholders must be delivered to the Company not later than February 20, 2010
and in accordance with the procedures established in the Bylaws.
The foregoing description of the
Amendment is a general description only and is qualified in its entirety by
reference to the Amendment. A copy of the Bylaws as currently in
effect is attached as Exhibit 3.1 hereto and incorporated herein by
reference.
In
addition to the election of directors and ratification of the selection of
auditors at the Company's 2010 Annual Meeting of Stockholders, the Board of
Directors currently intends to present for stockholder approval a
Board-sponsored proposal to declassify the Board.
Item
9.01.
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Financial
Statements and Exhibits.
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(d)
Exhibits
Exhibit
No.
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Description
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3.1
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Amended
and Restated Bylaws of Enzon Pharmaceuticals,
Inc.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: January
21, 2010
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ENZON
PHARMACEUTICALS, INC.
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By:
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/s/
Craig A. Tooman
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Name:
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Craig
A. Tooman
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Title:
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Executive
Vice President, Finance and Chief Financial
Officer
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EXHIBIT
INDEX
Exhibit
No.
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Description
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3.1
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Amended
and Restated Bylaws of Enzon Pharmaceuticals,
Inc.
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ex3-1.htm
Exhibit
3.1
AMENDED
AND RESTATED
BY-LAWS
OF
ENZON
PHARMACEUTICALS, INC.
(A
Delaware corporation)
ARTICLE
I
DEFINITION
As
used in these By-laws as amended, unless the context otherwise requires, the
term:
Section
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
Section
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
Section
1.3 "Board" means the Board of Directors of the Corporation.
Section
1.4 "By-laws" means the initial by-laws of the Corporation, as amended from time
to time.
Section
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
Section
1.6 "Corporation" means Enzon Pharmaceuticals, Inc.
Section
1.7 "Directors" means directors of the Corporation.
Section
1.8 "General Corporation Law" means the General Corporation Law of the State of
Delaware, as amended from time to time.
Section
1.9 "Office of the Corporation" means the executive office of the Corporation,
anything in Section 131 of the General Corporation law to the contrary
notwithstanding.
Section
1.10 "President" means the President of the Corporation.
Section
1.11 "Secretary" means the Secretary of the Corporation.
Section
1.12 "Stockholders" means stockholders of the Corporation.
Section
1.13 "Treasurer" means the Treasurer of the Corporation.
Section
1.14 "Vice President" means a Vice President of the Corporation.
ARTICLE
II
STOCKHOLDERS
Section
2.1 Place of
Meetings.
Every
meeting of the Stockholders shall be held at the office of the Corporation or at
such other place within or without the State of Delaware as shall be specified
or fixed in the notice of such meeting or in the waiver of notice
hereof.
Section
2.2 Annual
Meeting.
A
meeting of Stockholders shall be held annually for the election of directors or
the transaction of other business at such hour and on such business day as may
be determined by the Board and designated in the notice of meeting.
Section
2.3 Deferred Meeting for
Election of Directors, Etc.
If
the annual meeting of Stockholders for the election of directors and the
transaction of other business is not held on the date fixed in Section 2.2, the
Board shall call a meeting of Stockholders for the election of directors and the
transaction of other business as soon thereafter as convenient.
Section
2.4 Other Special
Meetings.
A
special meeting of Stockholders (other than a special meeting for the election
of directors), unless otherwise prescribed by statute, may be called at any time
by the Board or by the President or by the Secretary. At any special meeting of
Stockholders only such business may be transacted which is related to the
purpose or purposes of such meeting set forth in the notice thereof given
pursuant to Section 2.6 of the By-laws or in any waiver of notice thereof given
pursuant to Section 2.7 of the By-laws.
Section
2.5 Fixing Record
Date.
For
the purpose of determining the Stockholders entitled to notice of or to vote at
any meeting of Stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or for the purpose of determining
Stockholders entitled to receive payment of any dividend or the 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 may fix, in advance, a date as the record date for any such
determination of Stockholders. Such date shall not be more than sixty nor less
then ten days before the date of such meeting, nor more than sixty days prior to
any other action.
Section
2.5.1 If no such record date is fixed, the
record date for determining Stockholders entitled to notice of or to vote at a
meeting of Stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held;
Section
2.5.2 Without limiting the foregoing, in
order that the Corporation may determine the Stockholders entitled to consent to
corporate action in writing without a meeting, the Board may fix a record date,
which record date shall not precede the date upon which the Resolution fixing
the record date is adopted by the Board, and which date shall not be more than
ten (10) days after the date upon which the resolution fixing the record date is
adopted by the Board. Any Stockholder of record seeking to have the Stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board to fix a record date. The Board shall
promptly, but in all events within ten (10) days after the date on which such a
request is received, adopt a resolution fixing the record date. If no record
date has been fixed by the Board within ten (10) days of the date on which such
a request is received, the record date for determining Stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or any officer or agent of the
Corporation having custody of the book in which proceedings of Stockholders
meetings are recorded, to the attention of the Secretary of the Corporation.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board and prior action by the
Board is required by applicable law, the record date for determining
Stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board adopts
the resolution taking such prior action.
Section
2.5.3 The record date for determining
Stockholders for any purpose other than that specified in Sections 2.5.1 and
2.5.2 shall be at the close of business on the day on which the Board adopts the
resolution relating thereto.
When
a determination of Stockholders entitled to notice of or to vote at any meeting
of Stockholders has been made as provided in this Section 2.5 such determination
shall apply to any adjournment thereof, unless the Board fixes a new record date
for the adjourned meeting.
Section
2.6 Notice of Meeting of
Stockholders.
Except
as otherwise provided in Sections 2.5 and 2.7 of the By-laws, whenever under the
General Corporation Law or the Certificate of Incorporation or the By-laws,
stockholders are required or permitted to take any action at a meeting, written
notice shall be given stating the place, date and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called. A copy of the notice of any meeting shall be given, personally or by
mail, not less than ten nor more than sixty days before the date of the meeting,
to each
Stockholder
entitled to notice of or to vote at such meeting. If mailed, such notice shall
be deemed to be given when deposited in the United States mail, with postage
prepaid, and directed to the Stockholder at his address as it appears on the
records of the corporation. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent of the Corporation that the notice required
by this Section 2.6 has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. 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, and at the adjourned meeting any business may be transacted that might
have been transacted at the meeting as originally called. If, however, the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each Stockholder of record entitled to vote at the
meeting.
Section
2.7 Waivers of
Notice.
Whenever
notice is required to be given to any Stockholder under any provision of the
General Corporation Law or of the Certificate of Incorporation or the By-laws, a
written waiver thereof, signed by the Stockholder entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a Stockholder at a meeting shall constitute a waiver of notice of
such meeting, 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Stockholders need be specified in any written waiver of
notice.
Section
2.8 List of
Stockholders.
The
Secretary shall prepare and make, or cause to be prepared and made, at least ten
days before every meeting of Stockholders, a complete list of the Stockholders
entitled to vote at the 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 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 so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
Stockholder who is present.
Section
2.9 Quorum of Stockholders;
Adjournment.
The
holders of one-third of the shares of stock entitled to vote at any meeting of
Stockholders, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at such meeting. When a quorum is
once present to organize a meeting of Stockholders, it is not broken by the
subsequent withdrawal of any Stockholders. The holders of a majority of the
shares of stock present in person or represented by proxy at any meeting of
Stockholders, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place.
Section
2.10 Voting;
Proxies.
Unless
otherwise provided in the Certificate of Incorporation every Stockholder of
record shall be entitled at every meeting of Stockholders to one vote for each
share of capital stock standing in his name on the record of Stockholders
determined in accordance with Section 2.5 of the By-laws. If the Certificate of
Incorporation provides for more or less than one vote for any share, on any
matter, every reference in the By-laws or the General Corporation Law to a
majority or other proportion of stock shall refer to such majority or other
proportion of the votes of such stock. The provisions of Sections 212 and 217 of
the General Corporation Law shall apply in determining whether any shares of
capital stock may be voted and the persons, if any, entitled to vote such
shares; but the Corporation shall be protected in treating the persons in whose
names shares of capital stock stand on the record of Stockholders as owners
thereof for all purposes. At any meeting of Stockholders (at which a quorum was
present to organize the meeting), all matters, except as otherwise provided by
law or by the Certificate of Incorporation or by the By-laws, shall be decided
by a majority of the votes cast at such meeting by the holders of shares present
in person or represented by proxy and entitled to vote thereon, whether or not a
quorum is present when the vote is taken. All elections of directors shall be by
written ballot unless otherwise provided in the Certificate of Incorporation. In
voting on any other question on which a vote by ballot is required by law or is
demanded by any Stockholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the Stockholder voting or by his proxy, and shall
state the number of shares voted. On all other questions, the voting may be viva
voce. Every Stockholder entitled to vote at a meeting of Stockholders or to
express consent or dissent without a meeting may authorize another person or
persons to act for him by proxy. The validity and enforceability of any proxy
shall be determined in accordance with Section 212 of the General Corporation
Law.
Section
2.11 Selection and Duties of
Inspectors at Meetings of Stockholders.
The
Board, in advance of any meeting of Stockholders, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at such meeting may, and on the request
of any Stockholder entitled to vote thereat shall, appoint one or more
inspectors. In case any person appointed fails to appear or act, the vacancy may
be filled by appointment made by the Board in advance of the meeting or at the
meeting by the person presiding thereat. 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 inspector or inspectors shall determine the
number of shares outstanding and the voting power of each, the 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 person presiding at the meeting or any Stockholder entitled to
vote thereat, the inspector or inspectors shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them. Any report or certificate made by
the inspector or inspectors shall be prima facie evidence of the facts stated
and of the vote as certified by him or them.
Section
2.12 Organization.
At
every meeting of Stockholders, the President, or in the absence of the President
a Vice President, and in case more than one Vice President shall be present,
that Vice President designated by the Board (or in the absence of any such
designation, the most senior Vice President, based on age, present), shall act
as chairman of the meeting. The Secretary, or in his absence one of the
Assistant Secretaries, shall act as secretary of the meeting. In case none of
the officers above designated to act as chairman or secretary of the meeting,
respectively, shall be present, a chairman or a secretary of the meeting, as the
case may be, shall be chosen by a majority of the votes cast at such meeting by
the holders of shares of capital stock present in person or represented by proxy
and entitled to vote at the meeting.
Section
2.13 Order of
Business.
The
order of business at all meetings of Stockholders shall be as determined by the
chairman of the meeting, but the order of business to be followed at any meeting
at which a quorum is present may be changed by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
Section
2.14 Written Consent of
Stockholders Without a Meeting.
Any
action which could be taken at any annual or special meeting of Stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall (a) be
signed by the holders of outstanding stock entitled to vote thereon (as
determined in accordance with subsection 2.5.2 hereof) having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and (b) be delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the records of proceedings of meetings of
Stockholders. Delivery made to the corporation's registered office shall be by
hand or by certified mail or registered mail, return receipt requested. Every
written consent shall bear the date of signature of each Stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless written consents signed by the holders of
outstanding stock entitled to vote thereon (as determined in accordance with
subsection 2.5.2 hereof) 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, are delivered to the
Corporation, in the manner required by this Section, within sixty (60) days of
the earliest dated consent delivered to the Corporation in the manner required
by this Section 2.14. The validity of any consent executed by a proxy for a
Stockholder pursuant to a telegram, cablegram or other means of electronic
transmission transmitted to such proxy holder by or upon the authorization of
the Stockholder shall be determined by or at the direction of the secretary. A
written record of the information upon which the person making such
determination relied shall be made and kept in the records of the proceedings of
the Stockholders. Any such consent shall be inserted in the minute book as if it
were the minutes of a meeting of the Stockholders.
Section
2.15 Notifications of Nominations
and Proposed Business.
No
business may be transacted at an annual meeting of Stockholders (an "Annual
Meeting"), other than business that is either (a) specified in the notice of
such meeting (or any supplement thereto) given by or at the direction of the
Board (or any duly authorized committee thereof), (b) otherwise properly brought
before the Annual Meeting by or at the direction of the Board (or any duly
authorized committee thereof), or (c) otherwise properly brought before the
Annual Meeting by any Stockholder (i) who is a Stockholder of record on the date
of the giving of the notice provided for in this Section 2.15 and on the record
date for the determination of Stockholders entitled to notice of and to vote at
such Annual Meeting, and (ii) who complies with the notice procedures set forth
in this Section 2.15.
Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as Directors, except as may be otherwise provided in the
Certificate of Incorporation with respect to the right of holders of preferred
stock of the Corporation to nominate and elect a specified number of Directors
in certain circumstances. Nominations of persons for election as
Directors may be made at any Annual Meeting, or at any special meeting of
Stockholders (a "Special Meeting") called for the purpose of electing Directors,
(a) by or at the direction of the Board (or any duly authorized committee
thereof) or (b) by any Stockholder (i) who is a Stockholder of record on the
date of the giving of the notice provided for in this Section 2.15 and on the
record date for the determination of Stockholders entitled to notice of and to
vote at such Annual Meeting or Special Meeting, and (ii) who complies with the
notice procedures set forth in this Section 2.15.
In
addition to any other applicable requirements, for (a) business to be properly
brought before an Annual Meeting by a Stockholder or (b) a nomination to be made
at any Annual Meeting or Special Meeting by a Stockholder, such Stockholder must
have given timely notice thereof in proper written form to the
Secretary.
To
be timely, a Stockholder's notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the Corporation (a) in
the case of an Annual Meeting, not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the anniversary date of the immediately
preceding Annual Meeting of Stockholders; provided, however, that in the event
that the Annual Meeting is called for a date that is not within twenty-five (25)
days before or after such anniversary date, notice by the Stockholder in order
to be timely must be so received not later than the close of business on the
tenth (10th) day following the day on which notice of the date of the Annual
Meeting was mailed or public disclosure of the date of the Annual Meeting was
made, whichever first occurs; and (b) in the case of nominations of persons for
election as Directors at a Special Meeting called for the purpose of electing
Directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the Special Meeting was mailed
or public disclosure of the date of the Special Meeting was made, whichever
first occurs.
With
respect to matters proposed to be brought before an Annual Meeting, to be in
proper written form, a Stockholder's notice to the Secretary must set forth as
to each matter (i) a brief description of the business desired to be brought
before the Annual Meeting and the reasons for conducting such business at the
Annual Meeting, (ii) the name and record address of such
Stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such Stockholder, (iv)
a description of all arrangements or understandings between such Stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such Stockholder and any material interest of such
Stockholder in such business and (v) a representation that such Stockholder
intends to appear in person or by proxy at the Annual Meeting to bring such
business before the meeting.
With
respect to each person proposed to be nominated for election as a Director, to
be in proper written form, a Stockholder's notice to the Secretary must set
forth (a) as to each person, (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (b) as to the Stockholder giving the
notice, (i) the name and record address of such Stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such Stockholder, (iii) a description of all
arrangements or understandings between such Stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such Stockholder, (iv) a
representation that such Stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) all other
information relating to such Stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a Director if
elected.
No
business shall be conducted at any Annual Meeting except business brought before
such Annual Meeting in accordance with the procedures set forth in this Section
2.15; provided, however, that, once business has been properly brought before
such Annual Meeting in accordance with such procedures, nothing in this Section
2.15 shall be deemed to preclude discussion by any Stockholder of any such
business. No person shall be eligible for election as a Director
unless nominated in accordance with the procedures set forth in this Section
2.15. If (i) the chairman of any Annual Meeting determines that
business was not properly brought before the Annual Meeting or (ii) the chairman
of any Annual Meeting or Special Meeting determines that a nomination was not
made in accordance with the foregoing procedures, the chairman shall declare to
the meeting that the business was not properly brought before the meeting or
that the nomination was defective, as applicable, and such business shall not be
transacted and such defective nomination shall be disregarded.
ARTICLE
III
DIRECTORS
Section
3.1 General
Powers.
Except
as otherwise provided in the Certificate of Incorporation, the business and
affairs of the corporation shall be managed by or under the direction of the
Board. The Board may adopt such rules and regulations, not inconsistent with the
Certificate of Incorporation or the By-laws or applicable laws, as it may deem
proper for the conduct of its meetings and the management of the Corporation. In
addition to the powers expressly conferred by the By-laws, the Board may
exercise all powers and perform all acts which are not required, by the By-laws
or the Certificate of Incorporation or by law, to be exercised and performed by
the Stockholders.
Section
3.2 Number.
The
Board shall consist of not less than three nor more than fifteen directors, the
exact number of directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the whole Board and such exact
number shall be four until otherwise determined by resolution adopted by
affirmative vote of a majority of the whole Board. As used in this Article 3,
the term "whole Board" means the total number of directors which the Corporation
would have if there were no vacancies.
Section
3.3 Classification.
The
Board shall be divided into three classes and, when the number of directors is
changed, the Board shall determine the class or classes to which the increased
or decreased number of directors shall be apportioned; provided, that no
decrease in the number of directors shall affect the term of any director then
in office.
Section
3.4 Election.
Notwithstanding
the foregoing, and except as otherwise required by law, whenever the holders of
any one or more series of Preferred Stock shall have the right, voting
separately as a class, to elect one or more directors of the Corporation, the
terms of the director or directors elected by such holders shall expire at the
next succeeding annual meeting of Stockholders.
Section
3.5 Term.
The
term of office of directors elected at the 1986 Annual Meeting of Stockholders
held on January 20, 1987, shall be as follows: the term of office of directors
of the first class shall expire at the first annual meeting of Stockholders
after their election; the term of office of directors of the second class shall
expire at the second annual meeting of Stockholders after their election; and
the term of office of directors of the third class shall expire at the third
annual meeting of Stockholders after their election; and as to directors of each
class, when their respective successors are elected and qualified. At each
annual meeting of Stockholders subsequent to the 1986 Annual Meeting of
Stockholders, directors elected to succeed those
whose
terms are expiring shall be elected for a term of office to expire at the third
succeeding annual meeting of Stockholders and when their respective successors
are elected and qualified.
Section
3.6 New
Vacancies.
Vacancies
in the Board, however, caused, and newly created directorships shall be filled
solely by a majority vote of the directors then in office, whether or not a
quorum, and any director so chosen shall hold office for a term expiring at the
annual meeting of Stockholders at which the term of the class to which the
director has been chosen expires and when the director's successor is elected
and qualified.
Section
3.7 Resignations.
Any
director may resign at any time by written notice to the Corporation. Such
resignation shall take effect at the time therein specified, and unless
otherwise specified, the acceptance of such resignation shall not be necessary
to make it effective.
Section
3.8 Removal of
Directors.
Except
as otherwise provided by law, any or all of the directors may be removed only
for cause, by vote of the holders of a majority of the shares then entitled to
vote at an election of directors.
Section
3.9 Compensation.
Each
director, in consideration of his service as such, shall be entitled to receive
from the Corporation such amount per annum or such fees for attendance at
directors' meetings, or both, as the Board may from time to time determine,
together with reimbursement for the reasonable expenses incurred by him in
connection with the performance of his duties. Each director who shall serve as
a member of any committee of directors in consideration of his serving as such
shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable expenses incurred by
him in the performance of his duties. Nothing in this Section 3.9 shall preclude
any director from serving the Corporation or its subsidiaries in any other
capacity and receiving proper compensation therefore.
Section
3.10 Place and Time of Meetings
of the Board.
Meetings
of the Board, regular or special, may be held at any place within or without the
State of Delaware. The times and places for holding meetings of the Board may be
fixed from time to time by resolution of the Board or (unless contrary to
resolution of the Board) in the notice of the meeting.
Section
3.11 Annual
Meetings.
On
the day when and at the place where the annual meeting of Stockholders for the
election of directors is held, and as soon as practicable thereafter, the Board
may hold its annual meeting without notice of such meeting, for the purpose of
organization, the election of officers
and
the transaction of other business. The annual meeting of the Board may be held
at any other time and place specified in a notice given as provided in Section
3.13 of the By-laws for special meetings of the Board or in a waiver of notice
thereof.
Section
3.12 Regular
Meetings.
Regular
meetings of the Board may be held at such times and places as may be fixed from
time to time by the Board. Unless otherwise required by the Board, regular
meetings of the Board may be held without notice. If any day fixed for a regular
meeting of the Board shall be a Saturday or Sunday or a legal holiday at the
place where such meeting is to be held, then such meeting shall be held at the
same hour at the same place on the first business day thereafter which is not a
Saturday, Sunday or legal holiday.
Section
3.13 Special
Meetings.
Special
meetings of the Board shall be held whenever called by the President or the
Secretary or by any two or more directors. Notice of each special meeting of the
Board shall, if mailed,. be addressed to each director at the address designated
by him for that purpose or, if none is designated, at his last known address at
least two days before the date on which the meeting is to be held; or such
notice shall be sent to each director at such address by telegraph cable or
wireless, or be delivered to him personally, not later than the day before the
date on which such meeting is to be held. Every such notice shall state the time
and place of the meeting but need not state the purposes of the meeting, except
to the extent required by law. If mailed, each notice shall be deemed given when
deposited with postage thereon prepaid, in a post office or official depository
under the exclusive care and custody of the United States Postal Service. Such
mailing shall be by first class mail.
Section
3.14 Adjourned
Meetings.
A
majority of the directors present at any meeting of the Board, including an
adjourned meeting, whether or not a quorum is present, may adjourn such meeting
to another time and place. Notice of any adjourned meeting of the Board need not
be given to any director whether or not present at the time of the adjournment.
Any business may be transacted at any adjourned meeting that might have been
transacted at the meeting as originally called.
Section
3.15 Waiver of
Notice.
Whenever
notice is required to be given to any director or member of a committee of
directors under any provision of the General Corporation Law or of the
Certificate of Incorporation or By-laws, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person 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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice.
Section
3.16 Organization.
At
each meeting of the Board, the President of the Corporation, or in the absence
of the president, a chairman chosen by the majority of the directors present,
shall preside. The Secretary shall act as secretary at each meeting of the
Board. In case the Secretary shall be absent from any meeting of the Board, an
Assistant Secretary shall perform the duties of secretary at such meeting; and
in the absence from any such meeting of the Secretary and Assistant Secretaries,
the person presiding at the meeting may appoint any person to act as secretary
of the meeting.
Section
3.17 Quorum of
Directors.
One-third
of the directors then in office shall constitute a quorum for the transaction of
business or of any specified item of business at any meeting of the
Board.
Section
3.18 Action by the
Board.
All
corporate action taken by the Board or any committee thereof shall be taken at a
meeting of the Board, or of such committee, as the case may be, except that any
action required or permitted to be taken at any meeting of the Board, or of any
committee thereof, may be taken without a meeting if all members of the Board or
Committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Members of the Board, or any committee designated by the Board, may participate
in a meeting of the Board, or of such committee, as the case may be, 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 pursuant to this Section 3.18 shall constitute presence in person at
such meeting. Except as otherwise provided by the Certificate of Incorporation
or by law, the vote of a majority of the directors present (including those who
participate by means of conference telephone or similar communications
equipment) at the time of the vote, if a quorum is present at such time, shall
be the act of the Board.
ARTICLE
IV
COMMITTEES OF THE
BOARD
The
Board may, by resolution passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one 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. In the absence or disqualification of a 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 to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board, shall have and may exercise all
the powers and authority 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; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting on
agreement
of merger or consolidation, recommending to the Stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the Stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such Committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
ARTICLE
V
OFFICERS
Section
5.1 Officers.
The
Board shall elect a President, a Secretary and a Treasurer, and may elect or
appoint one or more Vice Presidents and such other officers as it may determine.
The Board may designate one or more Vice Presidents as Executive Vice President
and may use descriptive words or phrases to designate the standing, seniority or
area of special competence of the vice Presidents elected or appointed by it.
Each officer shall hold his office until his successor is elected and qualified
or until his earlier death, resignation or removal in the manner provided in
Section 5.2 of the By-laws. Any two or more offices may be held by the same
person. The Board may require any officer to give a bond or other security for
the faithful performance of his duties, in such amount and with such sureties as
the Board may determine. All officers as between themselves and the Corporation
shall have such authority and perform such duties in the management of the
Corporation as may be provided in the By-laws or as the Board may from time to
time determine.
Section
5.2 Removal of
Officers.
Any
officers elected or appointed by the Board may be removed by the Board with or
without cause. The removal of an officer without cause shall be without
prejudice to his contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights.
Section
5.3 Resignations.
Any
officer may resign at any time in writing by notifying the Board or the
President or the Secretary. Such resignation shall take effect at the date of
receipt of such notice or at such later time as is therein specified, and,
unless otherwise specified, the acceptance of such resignation shall not be
necessary to make it effective. The resignation of an officer shall be without
prejudice to the contract rights of the Corporation, if any.
Section
5.4 Vacancies.
A
vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled for the unexpired portion of the term in the
manner prescribed in the By-laws for the regular election or appointment to such
office.
Section
5.5 Compensation.
Salaries
or other compensation of the officers may be fixed from time to time by the
Board. No officer shall be prevented from receiving a salary or other
compensation by reason of the fact that he is also a director.
Section
5.6 President.
The
President shall be the chief executive officer of the Corporation and shall have
general supervision over the business of the Corporation, subject, however, to
the control of the Board and of any duly authorized committee of directors. The
President shall, if present, preside at all meetings of the Stockholders and at
all meetings of the Board. He may, with the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer, sign certificates for shares of
capital stock of the Corporation. He may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts and other instruments, except in
cases where the signing and execution thereof shall be expressly delegated by
the Board or by the By-laws to some other officer or agent of the Corporation,
or shall be required by law otherwise to be signed or executed; 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
5.7 Vice
Presidents.
At
the request of the President, or in his absence, at the request of the Board,
the vice Presidents shall (in such order as may be designated by the Board or in
the absence of any such designation in order of seniority based on age) perform
all of the duties of the President and so acting shall have all the powers of
and be subject to all restrictions upon the President. Any Vice President may
also, with the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer, sign certificates for shares of capital stock of the
Corporation; may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board or by the By-laws to some other officer or agent of the Corporation,
or shall be required by law otherwise to be signed or executed; and shall
perform such other duties as from time to time may be assigned to him by the
Board or by the President.
Section
5.8 Secretary.
The
Secretary, if present, shall act as secretary of all meetings of the
Stockholders and of the Board, and shall keep the minutes thereof in the proper
book or books to be provided for that purpose; he shall see that all notices
required to be given by the Corporation are duly given and served; he may, with
the President or a Vice President, sign certificates for shares of capital stock
of the Corporation; he shall be custodian of the seal of the Corporation and may
seal with the seal of the Corporation, or a facsimile thereof, all certificates
for shares of capital stock of the Corporation and all documents the execution
of which on behalf of the corporation under its corporate seal is authorized in
accordance with the provisions of the By-laws; he shall have charge of the stock
ledger and also of the other books, records and papers of the Corporation
relating to its organization and management as a Corporation, and shall see that
the reports, statements and other documents required by law are properly kept
and filed; and shall, in general, perform all the duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
by the Board or by the President.
Section
5.9 Treasurer.
The
Treasurer shall have charge and custody of, and be responsible for, all funds,
securities and notes of the Corporation; receive and give receipts for moneys
due and payable to the Corporation from any sources whatsoever; deposit all such
moneys in the name of the Corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with these By-laws; against
proper vouchers, cause such funds to be disbursed by checks or drafts on the
authorized depositaries of the Corporation signed in such manner as shall be
determined in accordance with any provisions of the By-laws, and be responsible
for the accuracy of the amounts of all moneys so disbursed; regularly enter or
cause to be entered in books to be kept by him or under his direction full and
adequate account of all moneys received or paid by him for the account of the
Corporation; have the right to require, from time to time reports or statements
giving such information as he may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; render to the President or the Board, whenever the President or the Board,
respectively, shall require him so to do, an account of the financial condition
of the Corporation and of all his transactions as Treasurer; exhibit at all
reasonable times his books of account and other records to any of the directors
upon application at the office of the Corporation where such books and records
are kept; and in general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him by
the Board or by the President; and he may sign with the President or a Vice
President certificates for shares of capital stock of the
Corporation.
Section
5.10 Assistant Secretaries and
Assistant Treasurers.
Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
ARTICLE
VI
CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC.
Section
6.1 Execution of
Contracts.
The
Board may authorize any officer, employee or agent, in the name and on behalf of
the Corporation, to enter into any contract or execute and satisfy any
instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.
Section
6.2 Loans.
The
President or any other officer, employee or agent authorized by the By-laws or
by the Board may effect loans and advances at any time for the Corporation from
any bank, trust company or other institutions 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, and when authorized so to do may pledge and hypothecate or
transfer any securities or other property of the Corporation as security for
any
such
loans or advances. Such authority conferred by the Board may be general or
confined to specific instances or otherwise limited.
Section
6.3 Checks, Drafts,
Etc.
All
checks, drafts and other orders for the payment of money out of the funds of the
Corporation and all notes or other evidences of indebtedness of the corporation
shall be signed on behalf of the Corporation in such manner as shall from time
to time be determined by resolution of the Board.
Section
6.4 Deposits.
The
funds of the Corporation not otherwise employed shall be deposited from time to
time to the order of the Corporation in such banks, trust companies or other
depositaries as the Board may select or as may be selected by an officer,
employee, or agent of the Corporation to whom such power may from time to time
be delegated by the Board.
ARTICLE
VII
STOCK AND
DIVIDENDS
Section
7.1 Shares of
Stock.
The
shares of capital stock of the Corporation shall be represented by a
certificate, unless and until the Board of Directors of the Corporation adopts a
resolution permitting shares to be uncertificated. Notwithstanding
the adoption of any such resolution providing for uncertificated shares, every
holder of capital stock of the Corporation theretofore represented by
certificates and, upon request, every holder of uncertificated shares, shall be
entitled to have a certificate for shares of capital stock of the Corporation
signed by, or in the name of the Corporation by, (a) the Chairman of the Board,
the Chief Executive Officer, the President or any Executive Vice President, and
(b) the Chief Financial Officer, the Secretary or an Assistant Secretary,
certifying the number of shares owned by such stockholder in the
Corporation.
Section
7.2 Transfer of Shares of
Stock.
Stock
of the Corporation shall be transferable in the manner prescribed by applicable
law and in these By-laws. Transfers of stock shall be made on the
books of the Corporation, and in the case of certificated shares of stock, only
by the person named in the certificate or by such person's attorney lawfully
constituted in writing and upon the surrender of the certificate therefor,
properly endorsed for transfer and payment of all necessary transfer taxes; or,
in the case of uncertificated shares of stock, upon receipt of proper transfer
instructions from the registered holder of the shares or by such person's
attorney lawfully constituted in writing, and upon payment of all necessary
transfer taxes and compliance with appropriate procedures for transferring
shares in uncertificated form; provided, however, that such surrender and
endorsement, compliance or payment of taxes shall not be required in any case in
which the officers of the Corporation shall determine to waive such
requirement. With respect to certificated shares of stock, every
certificate exchanged, returned or surrendered to the Corporation shall be
marked "Cancelled," with the date of cancellation, by the Secretary
or
Assistant
Secretary of the Corporation or the transfer agent thereof. No
transfer of stock shall be valid as against the Corporation for any purpose
until it shall have been entered in the stock records of the Corporation by an
entry showing from and to whom transferred.
Section
7.3 Transfer and Registry
Agents.
The
Corporation may from time to time maintain one or more transfer offices or agent
and registry offices or agents at such place of places as may be determined from
time to time by the Board.
Section
7.4 Lost, Destroyed, Stolen and
Mutilated Certificates.
The
holder of any shares of capital stock of the Corporation shall immediately
notify the Corporation of any loss, destruction, theft or mutilation of the
certificate representing such shares, and the Corporation may issue a new
certificate to replace the certificate alleged to have been lost, destroyed,
stolen or mutilated. The Board may, in its discretion, as a condition to the
issue of any such new certificate, require the owner of the lost, destroyed,
stolen or mutilated certificate, or his legal representatives, to make proof
satisfactory to the Board of such loss, destruction, theft or mutilation and to
advertise such fact in such manner as the Board may require, and to give the
corporation and its transfer agents and registrars, or such of them as the Board
may require, a bond in such form, in such sum and with such surety or sureties
as the Board may direct, to indemnify the Corporation and its transfer agents
and registrars against any claim that may be made against any of them on account
of the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
Section
7.5 Regulations.
The
Board may make such rules and regulations as it may deem expedient, not
inconsistent with the By-laws or with the Certificate of Incorporation,
concerning the issue, transfer and registration of certificates representing
shares of its capital stock.
Section
7.6 Restriction on Transfer of
Stock.
A
written restriction on the transfer or registration of transfer of capital stock
of the Corporation, if permitted by Section 202 of the General Corporation Law
and noted conspicuously on the certificate representing such capital stock, may
be enforced against the holder of the restricted capital stock or any successor
or transferee of the holder including an executor, administrator, trustee,
guardian or other fiduciary entrusted with like responsibility for the person or
estate of the holder. Unless noted conspicuously on the certificate representing
such capital stock, a restriction, even though permitted by Section 202 of the
General Corporation Law, shall be ineffective except against a person with
actual knowledge of the restriction. A restriction on the transfer or
registration of transfer of capital stock of the Corporation may be imposed
either by the Certificate of Incorporation or by an agreement among any number
of Stockholders or among such Stockholders and the Corporation. No restriction
so imposed shall be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital stock are parties
to an agreement or voted in favor of the restriction.
Section
7.7 Dividends, Surplus,
Etc.
Subject
to the provisions of the Certificate of Incorporation and of law, the
Board:
Section
7.7.1 May declare and pay dividends or make
other distributions on the outstanding shares of capital stock in such amounts
and at such time or times as, in its discretion, the condition of the affairs of
the Corporation shall render advisable;
Section
7.7.2 May use and apply, in its discretion,
any of the surplus of the Corporation in purchasing or acquiring any shares of
capital stock of the Corporation, or purchase warrants therefore, in accordance
with law, or any of its bonds, debentures, notes, scrip or other securities or
evidences of indebtedness; and
Section
7.7.3 May set aside from time to time out of
such surplus or net profits such sum or sums as, in its discretion, it may think
proper, as a reserve fund to meet contingencies, or for equalizing dividends or
for the purpose of maintaining or increasing the property or business of the
Corporation, or for any purpose it may think conducive to the best interests of
the Corporation.
ARTICLE
VIII
INDEMNIFICATION
Section
8.1 Indemnification of Officers
and Directors.
The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or an officer of the Corporation,
against expenses (including attorneys' fees) judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the fullest extent and in the manner set forth in
and permitted by the General Corporation Law, and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which such director or officer may be entitled
apart from the foregoing provisions. The foregoing provisions of this Section
8.1 shall be deemed to be a contract between the Corporation and each director
and officer who serves in such capacity at any time while this Article 8 and the
relevant provisions of the General corporation Law and other applicable law, if
any, are in effect and any repeal or modification thereof shall not affect any
rights or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of
facts.
Section
8.2 Indemnification of Other
Persons.
The
Corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he is or was an employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another Corporation, partnership, joint venture, trust or
other
enterprise,
against expenses (including attorneys' fees) judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
Section
8.3 Insurance.
The
Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation or a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of Sections 8.1 and 8.2 of the By-laws or under Section 145 of
the General Corporation Law or any other provision of Law.
ARTICLE
IX
BOOKS AND
RECORDS
Section
9.1 Books and
Records.
The
Corporation shall keep correct and complete books and records of account and
shall keep minutes of the proceedings of the Stockholders, the Board and any
committee of the Board. The Corporation shall keep at the office designated in
the Certificate of Incorporation or at the office of the transfer agent or
registrar of the Corporation in Delaware, a record containing the names and
addresses of all Stockholders, the number and class of shares held by each and
the dates when they respectively became the owners of record
thereof.
Section
9.2 Form of
Records.
Any
records maintained by the Corporation in the regular course of its business
including its stock ledger, books of account, and minute books, may be kept on,
or be in the form of, punch cards, magnetic tape, photographs, microphotographs,
or any other information storage device, provided that the records so kept can
be converted into clearly legible written form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect the same.
Section
9.3 Inspection of Books and
Records.
Except
as otherwise provided by law, the Board shall determine from time to time
whether, and, if allowed, when and under what conditions and regulations the
accounts, books, minutes and other records of the Corporation, shall be open to
the inspection of any Stockholder or director.
ARTICLE
X
SEAL
The
Board may adopt a corporate seal which shall be in the form of a circle and
shall bear the full name of the corporation, the year of its incorporation and
the word "Delaware."
ARTICLE
XI
FISCAL
YEAR
The
fiscal year of the Corporation shall be determined, and may be changed, by
resolution of the Board.
ARTICLE
XII
VOTING OF SHARES
HELD
Unless
otherwise provided by resolution of the Board, the President may, from time to
time, appoint one or more attorneys or agents of the Corporation, in the name
and on behalf of the Corporation, to cast the votes which the Corporation may be
entitled to cast as a Stockholder or otherwise in any other corporation, any of
whose shares or securities may be held by the Corporation, at meetings of the
holders of stock or other securities of such other corporation, or to consent in
writing to any action by any such other corporation, and may instruct the person
or persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed on behalf of the Corporation
and under its corporate seal, or otherwise, such written proxies, consents,
waivers or other instruments as he may deem necessary or proper in the premises;
or the President may himself attend any meeting of the holders of the stock or
other securities of any such other corporation and thereat vote or exercise any
or all other powers of the Corporation as the holder of such stock or other
securities of such other corporation.
ARTICLE
XIII
AMENDMENTS
The
By-laws may be altered, amended, supplemented or repealed, or new By-laws may be
adopted, by vote of the holders of the shares entitled to vote in the election
of directors, provided that Articles 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 may
only be amended by the affirmative vote of the holders of not less than
two-thirds of the outstanding voting shares of capital stock of the Corporation
entitled to vote generally in the election of directors; provided, however, that
such two-thirds vote shall not be required for, any amendment, alteration,
change, repeal or adoption of any inconsistent provision declared advisable by
the Board by the affirmative vote of two-thirds of the Board and submitted to
Stockholders for their consideration, but only if a majority of the members of
the Board acting upon such matter shall be Continuing Directors. The term
"Continuing Director" shall mean a director who was a member of the Board as of
October 1, 1986. With the exception of Articles 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and
3.8, the By-laws
may
also be altered, amended, supplemented, repealed, or new By-laws may be adopted,
by the Board. Any By-laws adopted, altered, amended, or supplemented by the
Board may be altered, amended, or supplemented or repealed by the Stockholders
entitled to vote thereon in accordance with the provisions hereof.