Exhibit 1
AGREEMENT
This Agreement is made and entered into this 14th day of February,
2002, by and between HMI INDUSTRIES INC., a Delaware corporation ("HMI" or the
"Company") with its principal office at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxx 00000, and XXXX X. XXXXX, individually and as Designated Agent
("Xxxxx") under the Stockholders Voting Agreement, dated October 19, 2001
("Stockholders' Agreement"), by and among certain stockholders of HMI.
WITNESSETH:
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WHEREAS, on October 19, 2001, Xxxxx filed with the Securities &
Exchange Commission (the "SEC") a Schedule 13D evidencing his beneficial
ownership of 2,976,504, or 44.4%, of the outstanding shares of Common Stock of
HMI (the "Shares"), which Schedule 13D has been amended on one occasion to
reflect the beneficial ownership of 3,126,804, or 46.6%, of the Shares (together
with Shares hereinafter acquired by Xxxxx that become subject to the
Stockholders' Agreement, the "Xxxxx Shares");
WHEREAS, the Schedule 13D stated that the purposes of the Stockholders'
Agreement were, among other things, to maximize the stockholders' value of HMI
and to fix the number and election of directors; and
WHEREAS, Xxxxx and the management of HMI have engaged in extensive
discussions and have reached an agreement on their joint goal of maximizing
stockholders' value;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. BOARD OF DIRECTORS. The parties agree that, while the current size
of the HMI Board of Directors (the "Board") may have been appropriate when the
Company was larger, to reflect the current circumstances and to conserve both
time and expense, the Board should be reduced to six (6) persons who should
stand annually for reelection. Accordingly, upon execution of this Agreement,
the Board shall adopt Amended Bylaws in the form of Exhibit A hereto (the
"Amended Bylaws"). Further, the Company shall cause certain directors to resign
their office and the remaining directors to fill the created vacancies, so that
the current members of the Board will be Messrs. Xxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxxxxx. Each of the
foregoing individuals will be a Company's nominee for reelection as a director
at the 2002 annual meeting of stockholders. Xxxxx agrees to vote the Xxxxx
Shares in favor of the foregoing nominees and HMI agrees to recommend to its
stockholders that they vote for each of the foregoing nominees.
2. COMMITTEES OF THE BOARD OF DIRECTORS. Upon execution of this
Agreement, the Board shall cause to be taken all necessary corporate action to
establish the following committees and to elect the individuals named below to
the relevant committees to serve terms
that will expire at the regular meeting of the Board to occur after the 2003
annual meeting of stockholders:
(a) EXECUTIVE COMMITTEE. An executive committee consisting initially
of Messrs. Xxxxxx, Xxxxx and Xxxxx. The committee, which shall meet monthly,
shall exercise, between meetings of the Board, the powers of the Board in the
management of business and affairs of the Company, except for those powers
reserved by law or resolution to the Board. Decisions of the Executive Committee
with respect to any of the matters specified in the Annex to the Amended Bylaws
must be unanimous and, in the absence of unanimity, the matter shall be referred
to the Board which, on such matters, shall require the approval of at least 80%
of the directors in office, as provided in the Amended Bylaws.
(b) AUDIT COMMITTEE. An Audit Committee consisting initially of
Messrs, Davidson, Walker and Winfield.
(c) COMPENSATION COMMITTEE. A Compensation Committee consisting
initially of Messrs. Davidson, Xxxxx and Xxxxxxxx. Decisions of the Compensation
Committee with respect to any of the matters specified in the Annex to the
Amended Bylaws that are within the scope of the Committee's charter must be
unanimous and, in the absence of unanimity, the matter shall be referred to the
Board which, on such matters, shall require the approval of at least 80% of the
directors in office, as provided in the Amended Bylaws.
(d) NOMINATING COMMITTEE. A Nominating Committee consisting
initially of Messrs. Xxxxxx, Xxxxx and Xxxxxx. The Nominating Committee shall
select HMI's nominees for directors for the 2003 and subsequent annual meetings
of stockholders and shall have the authority to fill any vacancy, however
created, in the Board or committees of the Board. Notwithstanding the foregoing,
in the event, prior to the 2003 annual meeting of stockholders, Xx. Xxxxxx
ceases, for any reason, to be a director or a member of the Nominating
Committee, his successor shall be appointed by a majority of the directors then
in office. In the event, prior to the 2003 annual meeting of stockholders,
either Xx. Xxxxx or Xx. Xxxxxx ceases, for any reason, to be a director or a
member of the Nominating Committee, the survivor, in accordance with the terms
of the Amended Bylaws, shall constitute a Special Nominating Committee of one
with the authority to appoint a successor director to fill the vacancy.
(e) BYLAW AMENDMENTS. Upon execution of this Agreement, the Board
shall adopt the Amended Bylaws to effectuate the provisions of this Section 2.
3. REPRESENTATIONS AND AGREEMENTS OF XXXXX.
(a) Xxxxx has the right, power and authority, without the consent of
any person, to execute, deliver and perform this Agreement. This Agreement has
been duly executed and delivered by Xxxxx and represents a valid and binding
agreement of Xxxxx enforceable in accordance with its terms.
(b) The execution, delivery and performance of this Agreement does
not (i) conflict with or result in a breach of the terms, conditions, or
provisions, or constitute a default
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under, any agreement or other instrument to which Xxxxx is or may be a party or
is or may be bound or affected, or (ii) require any filing with or notification
to, any governmental or regulatory authority except for filings required to be
made with the SEC under applicable law, or (iii) violate any law, judgment,
order, writ, injunction, decree, statute, rule or regulation applicable to
Xxxxx.
(c) Subject to HMI's compliance with the terms of this Agreement,
Xxxxx agrees that, for a period commencing on the date hereof and continuing
until the date of the 2003 annual meeting of stockholders, except as authorized
by the Board, neither he nor any of his Affiliates (as the term is defined in
Rule 405 promulgated under the Securities Act of 1933) will, directly or
indirectly, alone or in concert or in conjunction with any other person or
group:
(i) take any action alone or in concert with another person to seek
to acquire control of the management, board of directors, or policies
of the Company or its subsidiaries or the employees thereof, except as
otherwise permitted by this Agreement or the Amended Bylaws and
consistent with his fiduciary duties as a director;
(ii) (A) make or participate in any solicitation as defined in
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), of proxies or consents with respect to any Shares
or make any public or private statements to third parties in connection
with the solicitation of such proxies or consents by others including
actions described in Rule 14a-1(l)(2)(iv) under the Exchange Act or
seek to advise or influence any person with respect to the voting of
Shares; or (B) assist or encourage any attempt by any other person to
do or seek the foregoing;
(iii) take any of the following actions if the purpose is to
circumvent or avoid the agreements or restrictions set forth herein or
would result in an inconsistency therewith: (A) call or seek to call,
directly or indirectly, any special meeting of stockholders of the
Company, (B) initiate, propose or otherwise solicit holders of Shares
for the approval of one or more stockholder proposals at any time, (C)
induce or attempt to induce any other person to initiate any
stockholder proposal relating to the Company, or (D) execute any
written consent in lieu of a meeting, for the purpose of circumventing
the agreements or restrictions set forth in this Agreement;
(iv) form, join or in any way participate in a "group" as such term
is defined in Regulation 13D under the Exchange Act, with respect to
any Shares other than the Stockholders' Agreement;
(v) seek or propose any merger, consolidation, business combination,
tender or exchange offer, sale or purchase or transfer of assets or
securities, restructuring, recapitalization, dissolution, winding up or
similar transaction of or involving the Company or any of its
subsidiaries;
(vi) deposit any Shares in a voting trust or subject them to a
voting agreement or other instrument of similar effect, except as set
forth in this Agreement and except for any voting agreements in effect
as of the date hereof;
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(vii) sell, transfer or otherwise dispose of any Shares, provided
that Xxxxx and his Affiliates may sell Shares in the event of a merger,
consolidation, business combination, tender or exchange offer,
restructuring, recapitalization or similar transaction of or involving
the Company that has been approved by the Board of Directors of the
Company;
(viii) seek to amend either the Certificate of Incorporation or
Amended Bylaws of HMI;
(ix) enter into any arrangements, understandings or agreements
(whether written or oral) with, or advise, assist or encourage any
other person in connection with any of the foregoing;
(x) be employed by or seek employment with the Company or any of its
subsidiaries, nor shall he be hired, perform services or act in any
manner as a consultant to the Company or any of its subsidiaries; or
(xi) resign as Designated Agent under the Stockholders' Agreement or
transfer or assign his rights and obligations as the Designated Agent
unless he has previously resigned as a director of the Company.
The prohibitions in clause (ii) and (iii) above shall not preclude
Xxxxx from soliciting proxies for the election of directors at the 2003 annual
meeting of stockholders.
(d) In the event Xxxxx, as a director of the Company, votes in favor
of a proposal to be submitted by the Board to the stockholders, Xxxxx agrees
that he shall (i) vote, and shall cause his Affiliates to vote, all Shares
beneficially owned by Xxxxx and such Affiliates in the manner recommended by the
Board of Directors of the Company, (ii) vote all Shares that Xxxxx has the proxy
to vote in the manner recommended by the Board, subject to any limitations set
forth in the relevant proxy, voting agreement, or applicable law; and (iii) be
present or be represented by proxy at each stockholder meeting so that all the
Shares references in the preceding clauses (i) and (ii) may be counted for the
purpose of determining the presence of a quorum.
4. REPRESENTATIONS AND WARRANTIES OF HMI. HMI represents and warrants
to Xxxxx as follows:
(a) ORGANIZATION. HMI is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware.
(b) HMI POWER AND AUTHORITY. HMI has the corporate power and
authority to execute, deliver and perform this Agreement and the other documents
and instruments contemplated hereby. The execution, delivery and performance of
this Agreement by HMI and the documents contemplated hereby and the consummation
of the transactions contemplated hereby have been duly authorized and approved
by the Board of Directors of HMI. This
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Agreement, and each of the other agreements, documents and instruments to be
executed and delivered by HMI have been duly executed and delivered by, and
constitute the valid and binding obligation of HMI enforceable against HMI in
accordance with their terms.
(c) NO CONFLICT. Neither the execution and delivery of this
Agreement and the other documents and instruments contemplated hereby by HMI,
the consummation of the transactions contemplated hereby or thereby, nor the
performance by HMI of this Agreement and such other agreements in compliance
with the terms and conditions hereof and thereof will (i) conflict with or
result in any breach of the Certificate of Incorporation, as amended, or Bylaws
of HMI or any judgment, decree, order, statute or regulation applicable to HMI,
(ii) require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, except for filings
required to be made with the SEC under applicable law, (iii) result in a breach
of or default (or give rise to any right of termination, cancellation or
acceleration) under any law, rule or regulation or any judgment, decree, order,
governmental permit, license or order or any of the terms, conditions or
provisions of any mortgage, indenture, note, license, agreement or other
instrument to which HMI is a party which would materially impair HMI's ability
to consummate the transactions contemplated hereby or (iv) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to HMI.
5. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement will be governed by and construed
under the laws of the State of Delaware.
(b) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement will inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. This Agreement shall
not be assignable by Xxxxx.
(c) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
(d) TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) AMENDMENTS AND WAIVERS. Any term or provision of this Agreement
may be amended and the observance of any such term or provision may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of each of the parties hereto. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise
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thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege hereunder.
(f) ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto or thereto constitute the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof. No party will be liable or bound to any other party in any manner
by any warranties, representations, or covenants except as specifically set
forth herein or therein.
(g) SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable, or void, this Agreement will continue in full force and effect
without said illegal, unenforceable, or void provision.
(h) LEGAL REPRESENTATION. Each of the parties has been represented
by independent legal counsel in connection with the negotiation, drafting, and
execution of this Agreement.
(i) CONSENT TO JURISDICTION, VENUE AND SERVICE OF PROCESS. HMI and
Xxxxx, each after having consulted or having had the opportunity to consult with
legal counsel, knowingly, voluntarily, intentionally, and irrevocably: (i)
consents to the jurisdiction of the Court of Common Pleas, County of Cuyahoga,
Ohio, and the United States District Court for the Northern District of Ohio
with respect to any action, suit, proceeding, investigation or claim
("Litigation"); (ii) waives any objections to the jurisdiction and venue of any
Litigation in either such court; (iii) agrees not to seek to transfer, by
consolidation or otherwise, any Litigation commenced in either of such courts to
any other court as the grounds of forum non-conveniens and (iv) waives personal
service of process in connection with any Litigation and consents to service of
process by registered or certified mail, postage prepaid, addressed as set forth
herein. These provisions may not be modified in any respect or relinquished by
any party except by written instrument executed by each of them.
(j) SPECIFIC PERFORMANCE. The parties hereto declare by means of
this Agreement that it is impossible to measure in money the damages that will
accrue to a party hereto by reason of a failure by any party to perform any of
the obligations under this Agreement. Therefore, if any party shall institute
any action or proceeding to enforce the provisions of this Agreement, the
defendant or defendants in such action or proceeding hereby waive the claim or
defense that the plaintiff or plaintiffs therein has or have an adequate remedy
of law and such defendants shall not raise such claim or defense in any such
action or proceeding but shall be entitled to a specific performance of all of
the terms of this Agreement.
(k) PUBLIC ANNOUNCEMENT. Xxxxx and HMI agrees to permit the other to
review any press release, SEC filing or other public announcement relative to
the transactions contemplated by this Agreement and that they will make such
alterations or changes therein as may be reasonably requested and which are
consistent with the terms of this Agreement.
(l) NOTICES. All notices, requests, demands, and other
communications
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hereunder shall be in writing and shall be either: (i) personally delivered
(including delivery by facsimile transmission or email); (ii) mailed by
certified mail, return receipt requested; or (iii) overnight couriered addressed
as follows:
To HMI: HMI Industries, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxx 00000
ATTN: Xxxxx X. Xxxxxx,
Chairman and Chief Executive Officer
Fax: 000-000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
with a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
ATTN: Xxxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
Email: xxxxxxx@xxx.xxx
To Xxxxx: Xxxx X. Xxxxx
Tube-Fab Ltd.
0000 Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Fax: 000-000-0000
With a copy to: Kahn, Kleinman, Xxxxxxxx & Xxxxxx Co., L.P.A.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
ATTN: Xxxx X. Xxxxxxxxxxx, Esq.
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxx.xxx
Any notices sent by facsimile transmission or e-mail shall be
confirmed, in writing, by delivery to the mail address listed above.
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IN WITNESS WHEREOF, the parties have executed this agreement as of
February 14, 2002.
HMI INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chief Executive Officer
And By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, individually and Designated Agent
under Stockholders Voting Agreement dated October 19,
2001
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EXHIBIT A
HMI INDUSTRIES INC.
AMENDED BYLAWS
Adopted February 14, 2002
ARTICLE I
Offices
Section 1. REGISTERED OFFICE. The registered office of the corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
Stockholders and Stockholder Meetings
Section 1. ANNUAL MEETING. An Annual Meeting of the Stockholders shall
be held each year, for the purpose of electing directors by written ballot and a
plurality vote, and for the transaction of such other business as may properly
come before the meeting. Such Annual Meeting shall be held each year at such
time and on such business day as the Board of Directors may determine each year;
provided that, unless otherwise determined by the Board of Directors, the
meeting date for the 2003 Annual Meeting shall be May 15, 2003 and the Board
shall set an appropriate record date. If the Annual Meeting for the election of
directors is not held on the day designated herein or pursuant hereto, the Board
of Directors shall cause the meeting to be held as soon thereafter as
convenient.
Section 2. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the Chairman of the Board or the President or the Board of Directors, and
shall be called by the Secretary at the written request of stockholders owning
not less than ten (10) percent of the outstanding shares of the capital stock of
the corporation entitled to vote. Such written request of stockholders must be
made at least seventy-five (75) days prior to the first day upon which an annual
meeting of stockholders may be held pursuant to these bylaws, and state the
purpose or purposes of the proposed meeting.
Section 3. PLACE OF MEETING. The Board of Directors may from time to
time designate any place, either within or without the State of Delaware, as the
place of meeting for any annual or special meeting of stockholders. If no such
designation is made by the Board of Directors with respect to a special meeting
called other than by the Board itself, the officer calling such meeting shall
designate a place in the City of Cleveland, State of Ohio, where such meeting
shall be held.
Section 4. NOTICE OF MEETING. Written notice stating the place, day and
hour of a meeting and the purpose or purposes for which the meeting is to be
held, shall be given, unless a statute specifies a different time period, not
less than ten nor more than fifty days before the date of the meeting, either
personally or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation. Business transacted at any meeting of stockholders
shall be limited to the purposes stated in the notice of such meeting.
Section 5. VOTING LISTS. The officer who has charge of the stock ledger
of the corporation shall prepare and make, 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. Upon the willful neglect or refusal of the directors to produce such a
list at any meeting for the election of directors, they shall be ineligible for
election to any office at such meeting.
Section 6. QUORUM. A majority of the outstanding shares of the capital
stock of the corporation entitled to vote, and represented in person or by
proxy, shall constitute a quorum at a meeting of stockholders. If less than a
majority of such outstanding shares are represented at a meeting, a majority of
the shares so represented may adjourn the meeting from time to time without
further notice of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, of 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.
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Section 7. VOTING OF SHARES. Unless otherwise provided by or pursuant
to Article Fourth of the Certificate of Incorporation, and subject to the
provisions of Section 1, Article VIII of these bylaws and Section 213 of the
General Corporation Law of the State of Delaware, such stockholder shall be
entitled at every meeting of stockholders to one vote in person or by proxy for
each share of the capital stock having voting power held by such stockholder.
Any such proxy shall be in writing and shall be filed with the Secretary of the
corporation before or at the time of the meeting. No such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period.
Section 8. DECISION BY MAJORITY. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any questions brought
before such meeting, unless the question is one upon which by express provision
of statute or of the Certificate of Incorporation, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 9. INFORMAL ACTION BY STOCKHOLDERS. Subject to Section 271 of
the General Corporation Law of Delaware, whenever the vote of stockholders at a
meeting is required or permitted to be taken for or in connection with any
corporate action by any provision of statute, the meeting and vote of
stockholders may be dispensed with if the holders of a majority of shares of the
outstanding stock of the corporation, who would have been entitled to vote upon
the action if such meeting were held, shall consent in writing to such corporate
action being taken.
ARTICLE III
Board of Directors
Section 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors except as may be otherwise provided
by statute, the Certificate of Incorporation or these bylaws.
Section 2. NUMBER, TENURE AND QUALIFICATIONS.
(a) The number of directors of the corporation shall be fixed by
resolution of the Board of Directors or the stockholders from time to time but
shall not be less than three or more than seven. Until subsequently changed by
the stockholders or by the Board of Directors, the number of directors shall be
six. Except as provided in Section 3 of Article III, directors shall be elected
at a meeting of stockholders held in accordance with Section 1, Article II.
Directors need not be stockholders of the corporation.
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(b) Each director shall be elected at each annual meeting of the
stockholders, each to hold office until the next annual meeting of stockholders
and until the director's successor is elected and qualified, or until the
director's resignation or removal.
Section 3. VACANCIES. Subject to Section 223 of the General Corporation
Law of the State of Delaware, newly created directorships resulting from any
increase in the authorized number of directors and vacancies on the Board of
Directors occurring for any other reason may be filled by a majority vote of the
Nominating Committee of the Board of Directors. Notwithstanding the foregoing,
if, prior to the 2003 annual meeting of stockholders, (i) Xx. Xxxxxx or Xx.
Xxxxx ceases, for any reason to be a director of the corporation, the survivor
shall be deemed a Special Nominating Committee of one with the authority to fill
the vacancy or (ii) if Xx. Xxxxxx ceases for any reason to be a director of the
corporation, his successor shall be appointed by a majority of the directors
then in office. Any director or directors so chosen to fill a vacancy or a newly
created directorship shall hold office until the next election of directors by
stockholders and until their successors shall be elected and qualified.
Section 4. REGULAR MEETINGS. A regular meeting of a newly elected Board
of Directors shall be held without other notice than this Bylaw, immediately
after, and at the same place as, the annual meeting of stockholders. The Board
of Directors may provide, by resolution, the time and place, either within or
without the State of Delaware, for the holding of additional regular meetings
without other notice than such resolution.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President, and shall be called
by the Secretary at the written request of any two directors. The officer
calling special meetings as aforesaid may fix the time and designate any place,
either within or without the State of Delaware, for holding any special meeting
of the Board of Directors called by him.
Section 6. NOTICE. Notice of any special meeting shall be given at
least two days prior thereto by written notice delivered to each director at his
business or home address. Any director may waive notice of any meeting. The
attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Except as otherwise provided by statute, neither
the business to be transacted at, nor the purpose of, a special meeting of the
Board of Directors need be specified in the notice of such meeting.
Section 7. QUORUM -- MANNER OF ACTION. A majority of the number of
directors then in office shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, but if less than such
majority is present at a meeting, the directors present may adjourn the meeting
from time to time without notice other than an announcement at the meeting,
until a quorum is present. Except as to those items listed
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on Annex 1 to these Amended Bylaws, which shall require the vote of at least 80%
of the directors in office, the vote of the majority of the directors in office
shall be the act of the Board of Directors.
Section 8. EXONERATION FROM LIABILITY IN CERTAIN CASES. If there is any
violation of the provisions of Sections 160, 173 or 243 of the General
Corporation Law of the State of Delaware (involving payment of an unlawful
dividend or an unlawful purchase or redemption of the capital stock of the
corporation) for which members of the Board of Directors under whose
administration the same shall have been done may be jointly and severally liable
to the corporation under Section 174 of said General Corporation Law, any
director who may have been absent when the same was done, or who may have
dissented from the act or resolution by which the same was done, may exonerate
himself from such liability by causing his dissent to be entered on the books
containing the minutes of the proceedings of the directors at the time the same
was done, or immediately after he has notice of the same.
Section 9. RELIANCE ON BOOKS OF ACCOUNT, ET CETERA. Each member of the
Board of Directors and of any committee designated by the Board of Directors,
shall in the performance of his duties, be fully protected in relying in good
faith upon the books of account or other records of the corporation or upon
reports made to, or statements prepared for, the corporation by any of its
officers, or by independent certified public accountants, or by an appraiser
selected with reasonable care by the Board of Directors or by any such
committee.
Section 10. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all members of the Board of Directors consent thereto in writing, and
the writing or writings are filed with minutes of its proceedings.
Section 11. COMPENSATION. The directors may be paid their expenses, if
any, of attending any meeting of the Board of Directors, and may also be paid
either a fixed sum for attendance at each meeting of the Board of Directors or a
stated amount as monthly, quarterly or annual compensation. Members of special
or standing committees of the Board of Directors may be allowed like
compensation for performing their duties on such committees. No such payment
shall preclude any director from serving the corporation in any other capacity
and receiving compensation therefor.
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ARTICLE IV
Committees of Board of Directors
Section 1. FORMATION OF COMMITTEES. The Board of Directors may by
resolution adopted by at least 80% vote of the directors in office designate one
or more committees, each committee to consist of two or more directors of the
corporation; provided, that, under the special circumstances described in
Section 3, Article III of these bylaws, the Special Nominating Committee may
consist of one director. Any such committee, to the extent provided in such a
resolution, shall have and may exercise the powers of the Board of Directors 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 that require it. Each
such committee shall have such name as may be determined from time to time by
the Board of Directors.
Section 2. APPOINTMENT OF MEMBERSHIP. The Board of Directors by
resolution adopted by a majority of the whole board shall appoint the directors
who shall be members of any such committee, each such member to hold office
until the next regular annual meeting of the Board of Directors following his
appointment and until his successor is appointed and qualified. Any vacancy
(whether created by resignation or otherwise) may be filled, by a resolution
adopted by the Nominating Committee of the Board of Directors to serve until the
next regular annual meeting of the Board of Directors. The Board of Directors
may also designate in any such resolution one or more directors as alternative
members of any such committee, who may replace any absent or disqualified member
at any meeting of the committee; but if there be no such designation, the member
or members of any such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
Section 3. MEETINGS. Regular meetings of any such committee may be held
without notice at such times and places as the committee may fix from time to
time by resolution. Special meetings of a committee may be called by the
presiding officer thereof upon not less than one day's notice stating the place,
date and hour of the meeting, which notice may be written or oral or by
telegram. If such notice is mailed, it shall be deemed to be delivered when
deposited in the mail addressed to a member at his business address, and if sent
by telegram, when delivered to the telegraph company. Any member of a committee
may waive notice of a meeting; and no such notice need be given to a member of a
committee who attends a meeting in person. The notice of a meeting of a
committee need not state the business proposed to be transacted at the meeting.
Section 4. QUORUM. A majority of the members of a committee appointed
or designated as provided in Section 2 of this Article IV, shall constitute a
quorum for the
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transaction of business at any meeting thereof. Except as to any limitations
imposed by the resolution adopted by the Board designating the Committee, any
action by a committee must be authorized by the affirmative vote of a majority
of the members present at a meeting at which a quorum exists.
Section 5. ACTION WITHOUT A MEETINGS. Any action required or permitted
to be taken at any meeting of a committee may be taken without a meeting if all
regular members of the committee consent thereto in writing, and the writing or
writings are filed with the minutes of its proceedings.
Section 6. PROCEDURE. Unless its presiding officer shall have been
designated by a majority of the whole Board of Directors, a committee shall
elect a presiding officer from among its members. It shall keep regular minutes
of its proceedings and report any action taken by it to the next meeting of the
Board of Directors or when otherwise required.
ARTICLE V
Officers
Section 1. NUMBER OF OFFICERS. The officers of the corporation shall be
a Chairman of the Board, a Vice Chairman of the Board, a President, one or more
Executive or other Vice Presidents (the number thereof to be determined by the
Board of Directors from time to time), a Secretary and a Treasurer. Each of such
officers shall be elected and his compensation fixed by the Board of Directors,
but none of them, other than the Chairman of the Board, Vice Chairman of the
Board, and the President, need be members of the Board of Directors. Any two or
more of such offices may be held by the same person, except that the Office of
Secretary shall not be held by either the Chairman of the Board or the
President. The Board of Directors shall designate the Chairman of the Board or
the President to be the Chief Executive Officer of the Corporation.
Section 2. ELECTION AND TERM OF SUCH OFFICERS. The officers of the
corporation to be elected by the Board of Directors shall be elected annually at
the regular meeting of the Board of Directors held after each annual meeting of
the stockholders. Each such officer shall hold office until his successor shall
have been duly elected and qualified or until he shall earlier resign or have
been removed in the manner hereinafter provided.
Section 3. DESIGNATION OF ASSISTANT OFFICERS AND AGENTS. The Board of
Directors may designate such other assistant officers and agents as it shall
deem necessary, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board of Directors.
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Section 4. REMOVAL. Any officer, assistant officer or agent may be
removed by the Board of Directors whenever in its judgment the best interest of
the corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election of
an officer or designation of an assistant officer or agent shall not of itself
create contract rights.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal or otherwise, may be filled by the Board of Directors.
Section 6. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of
the Corporation shall in general supervise and direct all of the business and
affairs of the corporation. He shall have the power to sign, with the Secretary
or any other proper officer of the corporation thereunto duly authorized by the
Board of Directors, certificates for shares of the capital stock of the
corporation and any deeds, mortgages, bonds, debentures, contracts or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the authority to sign and execute the same shall be expressly
vested by the Board of Directors or these bylaws in some other officer,
assistant officer, employee or agent of the corporation, or shall be required to
be otherwise signed or executed.
Section 7. THE CHAIRMAN OF THE BOARD. The Board of Directors may elect
one of its members to serve as Chairman of the Board. He shall preside at all
meetings of the Board of Directors and of the stockholders but shall have the
power, in his discretion, at any time, to delegate these duties to the Vice
Chairman of the Board, the President or to some other officer or director of the
corporation. He shall have all such other duties as may be prescribed from time
to time by the Board of Directors. He shall be ex-officio a non-voting member of
all standing committees to which he is not appointed by the Board of Directors.
Section 8. THE VICE CHAIRMAN OF THE BOARD. The Board of Directors may
elect one of its members to serve as Vice Chairman of the Board. The Vice
Chairman shall have such duties as may be delegated to him by the Chief
Executive Officer or the Board of Directors. In the absence of the Chairman of
the Board and in the absence of any delegation of authority by the Chairman of
the Board to another officer or director of the corporation, he shall preside at
any meetings of the Board of Directors and of the Stockholders.
Section 9. THE PRESIDENT. In the absence of the designation by the
Board of Directors of a Chief Executive Officer, the President shall act as the
chief executive officer of the corporation. In the absence of the Chairman of
the Board and the Vice Chairman of the Board and in the absence of any
delegation of authority by the Chairman of the Board to another officer or
director of the corporation, he shall preside at any meetings of the Board of
Directors and of the Stockholders. He shall be ex-officio a non-
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voting member of all standing committees to which he is not appointed by the
Board of Directors. He shall have all such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer from time to time.
Section 10. THE VICE PRESIDENT. In the absence of the Chairman of the
Board, Vice Chairman of the Board and the President, or in the event of their
death, inability or refusal to act, the Vice President (or in the event there be
more than one Vice President, the Executive Vice President, or if there be no
Executive Vice President, then the Vice Presidents in the order designated at
the time of their election, or in the absence of any such designation, then in
the order of their election) shall perform the duties of the President, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the President. Apart therefrom, the Vice Presidents shall perform such
other duties as may be prescribed from time to time by the Board of Directors or
the Chief Executive Officer.
Section 11. THE SECRETARY. The Secretary shall: (a) attend all meetings
of the stockholders, Board of Directors and any committees of the Board of
Directors and record the proceedings of those meetings in one or more minute
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly authorized; (d) keep a
register of the post office address of each stockholder; (e) sign with the Chief
Executive Officer or other duly authorized officer, certificates for shares of
the corporation, the issuance of which shall have been authorized by resolution
of the Board of Directors; (f) have general corporate responsibility for the
stock transfer books of the corporation and for the performance of the stock
transfer agent and registrar; and (g) 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 of Directors or the Chief Executive Officer.
Section 12. THE TREASURER. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation;
(b) receive money due and payable to the corporation from any source whatever
and deposit all such money in the name of the corporation in such banks, trust
companies or other depositories as may be designated by the Board of Directors;
(c) disburse the funds of the corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements; (d) render to the
Chief Executive Officer, and when requested by it, to the Board of Directors, an
account of all his transactions as Treasurer and of the financial condition of
the corporation; and (e) in general perform all the duties incident to the
office of Treasurer and such duties as from time to time may be assigned to him
by the Board of Directors or Chief Executive Officer. If required by the Board
of Directors, the Treasurer shall give a bond, in such sum and with such surety
or sureties as shall be satisfactory to the Board of Directors, for the faithful
discharge of his duties and for the
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restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money, securities, and
other property belonging to the corporation in his possession or control.
Section 13. THE CONTROLLER. The Board of Directors may elect a
Controller who shall have charge of and be responsible for the books of account
of the corporation and keep or cause to be kept therein a full and accurate
record of the receipts and disbursements of the corporation and who shall
perform such other duties as may be assigned to him by the Board of Directors or
the Chief Executive Officer.
Section 14. GENERAL DUTIES OF OFFICERS. In the absence of the Chairman
of the Board, Vice Chairman of the Board, President or a Vice President, the
Treasurer or Secretary of the corporation is empowered to sign any document
required to be signed by the Chairman of the Board, Vice Chairman of the Board,
President or any Vice President.
ARTICLE VI
Stock Certificates
Section 1. CERTIFICATES FOR SHARES. The certificates representing
shares of the capital stock of the corporation shall be in such form as shall be
determined by the Board of Directors. Each holder of shares of stock in the
corporation shall be entitled to have such a certificate signed by or in the
name of the corporation by the Chairman of the Board, the President or a Vice
President, and by the Secretary or an Assistant Secretary of the corporation,
certifying the number of shares owned by him. If such certificate is
countersigned by a transfer agent or registrar other than the corporation itself
or one of its employees, the signatures of the officers upon the certificate may
be facsimiles. In the event that any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a certificate shall
cease to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar on the date of issue.
Section 2. CERTIFICATES FOR DIFFERENT CLASSES OF STOCK. If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the corporation shall set forth on the face or
back of the certificates which it will issue to represent each class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
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Section 3. LOST CERTIFICATES. The corporation may issue a new
certificate of stock in place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed. When issuing such new
certificate the corporation may require as a condition precedent to the issuance
thereof, that the owner of any certificate or certificates alleged to have been
lost, stolen or destroyed, or his legal representative, (a) file with the
corporation an affidavit attesting to the fact that the certificate theretofore
issued is lost, stolen or destroyed and (b) give the corporation a bond in such
sum as it may direct to indemnify it against any claim that may be made against
it on account of the alleged loss, theft or destruction of such certificate or
the issuance of such new certificate.
Section 4. TRANSFERS OF STOCK. Upon surrender to the corporation or its
transfer agent of a certificate for shares of stock duly endorsed or accompanied
by the proper evidence of succession, assignment or authority to transfer, the
corporation shall issue a new certificate to the person entitled thereto, cancel
the old certificate and properly record the transaction upon its books.
Section 5. REGISTERED STOCKHOLDERS. The corporation may treat the
registered owner of shares on the books of the corporation as the person
exclusively entitled to vote the shares, and to receive notices and dividends
with respect thereto, and shall not be bound to recognize any equitable or other
claim to, or interest in, such shares in any other person even though the
corporation has notice thereof, except as otherwise provided by Delaware law.
ARTICLE VII
Indemnification
Section 1. LIMITED INDEMNIFICATION OF DIRECTORS AND OFFICERS. Subject
to the limitations of subsection (c) of this Section 1, the corporation shall
indemnify each of its directors and officers to the extent set forth in
subsections (a) and (b) hereof:
(a) ACTION OR SUIT BY OR IN THE RIGHT OF THE CORPORATION. Each director
and officer of the corporation who was or is a party, or is threatened to be
made a party,
-- to any threatened, pending or completed action or suit, by or
in the fight of the corporation, to procure a judgment in its
favor,
-- by reason of the fact that he is or was a director or officer
of the corporation, or is or was serving at the request of the
corporation as a
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director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be and is
indemnified against expenses (including attorneys' fees) actually and
reasonable incurred by him in connection with the defense or settlement
of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in, and not opposed to, the best interests of
the corporation; PROVIDED THAT no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless, and only to
the extent that, the Court of Chancery of Delaware, or the court in
which such action or suit was brought, shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(b) ACTION OR SUIT OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
Each director or officer of the corporation 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 (other than an action or suit by or in the right
of the corporation),
-- by reason of the fact that he is or was a director or officer
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, shall be and is indemnified 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, if he acted
in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation, and
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Provided
that the termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the director or officer
-- did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of
the corporation, and
-- with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
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(c) LIMITATIONS ON INDEMNIFICATION. No indemnification shall be made by
the corporation under subsections (a) and (b) of this Section 1 unless ordered
by a court or it is determined in the specific case that indemnification of such
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) or (b) hereof Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to the action, suit or
proceeding referred to, or (2) if such a quorum is not obtainable, or even if
obtainable, when a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
Section 2. GENERAL INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any other
provision of this Article VII to the contrary notwithstanding, to the extent
that a director or officer of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of said Section 1, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 3. ADVANCE PAYMENT IN INDEMNIFICATION CASES. Expenses incurred
by any director or officer of the corporation in defending a civil or criminal
action, suit or proceeding referred to in subsections (a) or (b) of said Section
1 will be paid by the corporation in advance of final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this Article VII.
Section 4. CONTINUITY AND NON-EXCLUSIVITY OF INDEMNIFICATION. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article VII shall, unless otherwise provided when so authorized, continue
with respect to any director or officer of the corporation after he has ceased
to hold his office and shall inure to the benefit of his heirs, executors and
administrators. Any such indemnification (whether as expressly provided herein
or as extended pursuant to Section 5 of this Article VII) shall not be deemed
exclusive of any other rights to which the person seeking indemnification may be
entitled under any other By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 5. EXTENSION OF BENEFITS OF INDEMNIFICATION. The rights of
indemnification to which directors and officers of the corporation are entitled
pursuant to this Article VII may, in similar circumstances, be extended by
resolution of the Board of Directors to any other person who is or was an
employee or agent of the corporation, or while not a director or officer of the
corporation, is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
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joint venture, trust or other enterprise. Any such action by the Board of
Directors shall be consistent with the requirements of Section 145 of the
General Corporation Law of the State of Delaware, and may be either general or
confined to specific cases.
Section 6. INDEMNIFICATION INSURANCE. The corporation may 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 as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprises, 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 indemnifies him against such
liability under, or pursuant to, the provisions of this Article VII.
ARTICLE VIII
General Provision
Section 1. FIXING RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or to receive payment of any dividend or
other distribution or allotment of any rights, or to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 2. DIVIDENDS. Subject to the statutes and any provision with
respect to dividends made by or pursuant to the Certificate of Incorporation,
dividends may be declared on the capital stock of the corporation at any meeting
of the Board of Directors held in accordance with these bylaws and may be paid
in cash, in property, or in shares of the corporation. Before declaration or
payment of any dividend the Board of Directors may set aside out of any funds of
the corporation available for dividends, such reserve or reserves as the
Directors in their absolute discretion feel to be proper or conducive to the
interest of the corporation, and may modify or abolish any such reserve or
reserves.
Section 3. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to
14
notice. Neither the business to be transacted at, nor the purpose of, any
meeting need be specified in any written waiver of notice.
Section 4. ANNUAL REPORT. The Board of Directors shall present at each
annual meeting of stockholders and, when called for by a vote of the
stockholders, at any special meeting, a full and complete report of the business
and condition of the corporation.
Section 5. LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by the Board of Directors. Such authority as the Board of Directors
may grant with respect thereto may be either general or confined to specific
instances.
Section 6. CHECKS, DRAFTS, ET CETERA. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation, shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to time
designate.
Section 7. STOCK OF OTHER CORPORATIONS. In the absence of specific
action by the Board of Directors, the Chairman of the Board shall have authority
to vote and to empower others to vote, on behalf of the corporation, the
securities of other corporations, both domestic and foreign, held by the
corporation.
Section 8. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 9. CORPORATE SEAL. The Board of Directors shall provide a
corporate seal, which shall be circular in form and shall have inscribed thereon
the name of the corporation, the state of incorporation and the words "Corporate
Seal". The seal may be used by causing it or a facsimile thereof to be impressed
or affixed, or in any other manner reproduced.
Section 10. SEVERABILITY -- AMENDMENTS. If any provision of these
bylaws, or its application to any person or circumstances, is held invalid, the
remainder of these bylaws, and the application of such provision to other
persons or circumstances, shall not be affected. These bylaws and any provision
thereof may be altered, amended or repealed by (i) the vote of the stockholders
owning a majority of the outstanding shares of the capital stock of the
corporation, or (ii) by the vote of at least 80% of the directors in office;
provided that, after the 2003 Annual Meeting of Stockholders, only the vote of a
majority of the directors in office shall be required to amend these Bylaws.
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ANNEX TO
AMENDED BYLAWS
Until the election of directors at the 2003 Annual Meeting of
Stockholders, the following matters shall require the approval of at least 80%
of the directors in office:
1. Any amendment to the Corporation's Certificate of
Incorporation or Bylaws;
2. Any authorization or issuance of any equity or equity-linked
security or any change or reclassification of an outstanding
class or series;
3. Any proposal to acquire, merge or consolidate with or into any
entity or purchase all or substantially all of the assets of
any entity, or permit any subsidiary to do so;
4. Any proposal to sell, lease or otherwise dispose of all or
substantially all of the Corporation's assets in a single
transaction or series of related transactions;
5. Any proposal to exclusively license all or substantially all
of the Corporation's intellectual property in a single
transaction or series of related transactions;
6. Any proposal to increase or decrease the size of the Board of
Directors, change the composition of any Board Committee or
the charter of any Board Committee;
7. The declaration of payment of any dividends or the making of
any other distribution, directly or indirectly, on account of
any shares of equity securities now or hereafter outstanding;
8. The redemption, repurchase or otherwise acquisition of any
outstanding shares of the Corporation's capital stock or
rights to acquire capital stock (other than repurchases of
Common Stock from employees upon termination);
9. The incurrence of any indebtedness in excess of $500,000 in
the aggregate (other than payables in the ordinary course of
business, borrowings under the Corporation's senior lending
arrangement, or an increase in the Corporation's availability
under the senior lending arrangement of up to $1,000,000)
10. The incurrence or commitment to incur any single capital
expenditure in excess of $500,000 or aggregate capital
expenditures in excess of $1,000,000 per fiscal year of the
Corporation, unless included in a budget previously approved
by the Board;
11. The acquisition directly or by any subsidiary of any interest
in any business with a value in excess of $250,000 (whether by
purchase of assets, purchase of stock, merger or otherwise);
12. A proposal to enter into or modify any agreement, transaction
or arrangement with any of its officers, directors, or 5% or
greater stockholder, or any of their
respective affiliates, except for compensation or benefit
arrangements as approved by the Compensation Committee;
13. A proposal to amend the Corporation's existing stock option
plan, including increasing the number of available shares
eligible for grant, the approval of any additional option
grants, or approval of any new equity incentive plan; or
14. A proposal to enter into any exclusive franchise, license,
distribution or other agreement that is inconsistent with
prior business practice and that materially and adversely
affects the stockholder value of the Corporation.
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