Exhibit 3-b
SBC COMMUNICATIONS INC.
Incorporated under the Laws of the State of Delaware, October 5,
1983
Bylaws
Article I
Stockholders
Section 1. Annual Meeting
An annual meeting of the stockholders, for the election of
Directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before
the meeting, shall be held at such place, on such date, and at
such time as the Board of Directors shall fix each year.
Section 2. Special Meeting
Special meetings of the stockholders may be called at any
time, either by the Board of Directors or by the Chairman of the
Board, and the Chairman of the Board shall call a special meeting
whenever requested in writing to do so by stockholders
representing two-thirds of the shares of the corporation, then
outstanding, and entitled to vote at such meeting. This request
must specify the time, place and object of the proposed meeting.
Section 3. Notice of Meetings
Written notice of all meetings of the stockholders shall be
given to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date
on which the meeting is to be held. The notice shall state 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. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail with postage thereon
prepaid, addressed to the stockholder at his address as it
appears on the stock transfer books of the corporation. Any
previously scheduled meeting of the stockholders may be postponed
by resolution of the Board of Directors upon public notice given
prior to the time previously scheduled for such meeting of
stockholders.
When a meeting is adjourned to another place, date, or time,
written notice need not be given of the meeting when reconvened,
if the place, date, and time thereof are announced at the meeting
at which the adjournment is taken. If the date of the meeting to
be reconvened is more than thirty (30) days after the date for
which notice of the meeting was originally given or if a new
record date is fixed for the meeting, written notice of the
place, date and time of the meeting to be reconvened shall be
given in conformity herewith. At any reconvened meeting, any
business may be transacted that might have been transacted at the
original meeting.
Section 4. Quorum
At any meeting of the stockholders, the holders of forty
percent (40%) of all of the shares of the stock entitled to vote
at the meeting, present in person or by proxy, shall constitute a
quorum for the transaction of business.
If a quorum shall fail to attend any meeting, the chairman
of the meeting or the holders of a majority of the shares of the
stock entitled to vote who are present, in person or by proxy,
may adjourn the meeting to another place, date, or time.
Section 5. Organization
The Chairman of the Board, or a Director or officer as the
Chairman of the Board may designate, shall act as chairman of the
stockholders' meeting. The chairman of the meeting shall
designate an officer to act as a secretary for the meeting in the
absence of the corporation's Secretary.
Section 6. Proxies and Voting
At any meeting of the stockholders, every stockholder
entitled to vote may vote in person or by proxy executed in
writing and filed with the corporation in accordance with the
procedure established for the meeting.
Each holder of common stock shall have one vote for every
share of stock that is registered in the stockholder's name on
the record date for the meeting.
All voting may be by a voice vote, provided that upon demand
of a stockholder entitled to vote in person or by proxy, a
recorded vote of all shares of stock at the meeting shall be
taken.
Directors shall be elected by a plurality of the votes cast.
All other matters shall be determined by a majority of the votes
cast, unless a greater number is required by law or the
Certificate of Incorporation for the action proposed.
Section 7. Nomination of Directors
Only persons who are nominated in accordance with the
following procedures shall be eligible for election as Directors.
Nomination of persons for election to the Board of Directors may
be made at any annual meeting of stockholders (a) by or at the
direction of the Board of Directors or any duly authorized
committee thereof or (b) by any stockholder of the corporation
entitled to vote for the election of Directors at the annual
meeting. In addition to any other applicable requirements, a
nomination made by a stockholder shall be pursuant to timely
notice in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must
be received at the principal executive offices of the corporation
not less than sixty (60) days nor more than ninety (90) days
prior to the date of the annual meeting; provided, however, that
in the event that less than seventy (70) days' notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder must be received not
later than ten (10) days following the day on which notice or
public disclosure of the date of the annual meeting was mailed or
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the
stockholder proposes to nominate for election as Director (i) the
name, age, business address, and residence address of the person,
(ii) the principal occupation or employment of the person, (iii)
the class 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 is required to be disclosed in solicitations of proxies for
election of Directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended, 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, and (iii) any 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 solicitation of proxies for the election
of Directors pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended. 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 person shall be eligible for election as a Director of
the corporation unless nominated in accordance with the
procedures set forth in this Section 7. If the Chairman
determines that a nomination was not made in accordance with the
foregoing procedure, the Chairman shall declare to the meeting
that the nomination was defective and such defective nomination
shall be disregarded.
Section 8. Conduct of Annual Meeting
No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in
the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof), or (c) otherwise properly
brought before the meeting by a stockholder as of the record date
for the determination of stockholders entitled to vote at such
annual meeting. In addition to any other applicable requirements
for business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must
be received at the principal executive offices of the corporation
not less than sixty (60) days nor more than ninety (90) days
prior to the date of the annual meeting; provided, however, that
in the event that less than seventy (70) days' notice or prior
public disclosure of the date of the annual meeting is given or
made to the stockholder, notice by the stockholder must be
received not later than the close of business on the tenth day
following the day in which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, stockholder's notice to the
Secretary must set forth, as to each matter such stockholder
proposes to bring before the annual meeting, (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 of such stockholder, and (iv) any material interest of
the stockholder in such business.
No business shall be conducted at the annual meeting of
stockholders except in accordance with the procedures set forth
in this Section 8; provided, however, that nothing in this
Section 8 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual
meeting. If the Chairman determines that business was not
properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting
that the business was not brought properly before the meeting and
such business shall not be transacted.
Article II
Board of Directors
Section 1. Number and Terms of Office
The business and affairs of the corporation shall be under
the direction of a Board of Directors.
The number of Directors shall be not more than twenty-one
(21), as determined by a majority vote of the total number of
Directors then serving in office.
Directors shall be divided into three classes designated as
Group A, Group B, and Group C. The three classes of Directors
shall each consist of an equal number of Directors or a number of
Directors as nearly equal as possible. When the total number of
Directors is divided by three and one remains, the Director
remaining shall be assigned to Group A. When the total number of
Directors is divided by three and two remain, they shall be
assigned one to Group A and one to Group B. The number of
Directors in any one class may not exceed the number of Directors
in any other class by more than one, except as may result from
the phasing-in of a decrease in Directors under Section 2 of this
Article II.
The Board of Directors appointed by the incorporators shall
serve until the first stockholders' meeting. At the first
meeting of stockholders after organization of the corporation,
Directors to serve in Group A shall be elected to a term of one
year; Directors to serve in Group B shall be elected to a term of
two years; and Directors to serve in Group C shall be elected to
a full term of three years. Thereafter, at each annual meeting
of the stockholders, Directors shall be elected to a full term of
three years to succeed those in the Director group whose terms
expire at that annual meeting.
Section 2. Increases and Decreases in Directors
The Board of Directors may increase or decrease the number
of Directors, subject to the maximum limits provided in Section 1
of this Article II, by a vote of a majority of the total number
of Directors. Any vacancies created by an increase in the number
of Directors shall be filled as provided in Section 3 of this
Article II and be distributed among the Director groups in
accordance with Section 1 of this Article II. Any decrease in
the authorized number of Directors shall be phased in by reducing
the number of Directors in the first Director group whose terms
expire subsequent to the decrease to the number required to be in
that group by Section 1 of this Article II at the end of the
phasing-in period, and by similarly reducing the number of
Directors in the other Director groups upon expiration of their
terms, so that when the terms of Directors in all three Director
groups have successively expired subsequent to the decrease, each
Director group shall have the distribution of Directors required
by Section 1 of this Article II of these Bylaws.
Section 3. Vacancies
If the position of any Director is or becomes vacant, a
majority of the Directors remaining in office may appoint a
successor to serve the full or remaining term, as the case may
be, of the other Directors in the group in which the vacancy
occurred or was created.
Section 4. Regular Meetings
Regular meetings of the Board of Directors shall be held at
such place or places, on such date or dates, and at such time or
times as shall be established by the Board of Directors. A
notice of each regular meeting shall not be required.
Section 5. Special Meetings
Special meetings of the Board of Directors may be called by
one-third of the Directors or by the Chairman of the Board and
shall be held at such place, on such date, and at such time as
the Directors calling the meeting or the Chairman of the Board
shall fix. Notice of a special meeting shall be given to each
Director in any of the following ways: in person, by telephone
or by delivery of a written notice or facsimile communication to
the Director's business or residence. Notice given in writing or
by facsimile communication to the Director's business or
residence must be delivered at least twenty-four (24) hours
before such meeting. Notice given by telephone or in person
shall be given at least twelve (12) hours prior to the time set
for the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of
Directors need be specified in the notice of such meeting. A
written waiver of any notice, signed by a Director, whether
before or after the time of the event for which notice is to be
given, shall be equivalent to the notice required to be given to
such person.
Section 6. Quorum
At any meeting of the Board of Directors, a majority of the
total number of the Directors shall constitute a quorum.
Section 7. Committees of the Board of Directors
The corporation elects to be governed by the provisions of
Section 141(c)(2) of the General Corporation of the State of
Delaware, as amended effective July 1, 1996. The Board of
Directors may from time to time designate committees of the Board
of Directors, with such lawfully delegable powers and duties as
it thereby confers, to serve at the pleasure of the Board of
Directors and shall elect a Director or Directors to serve as the
member or members, designating, if it desires, other Directors as
alternate members who may replace any absent or disqualified
members at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of
Directors as permitted by law. In the absence or
disqualification of any member of any committee and any alternate
member designated to replace such member, the members of the
committee present at the meeting and not disqualified from voting
may by unanimous vote appoint another member of the Board of
Directors to act at the meeting in the place of the absent or
disqualified member.
Each committee may determine procedural rules for the
conduct of its meetings and business, and shall act in accordance
therewith, unless otherwise provided by the Board of Directors in
the resolution establishing the committee.
Article III
Officers of the Company
Section 1. Generally
The officers of the corporation shall consist of a Chairman
of the Board, a President, one or more Vice Presidents, a
Secretary, a Treasurer, and a Vice President-Chief Financial
Officer appointed by the Board of Directors. The Board of
Directors may also appoint one or more Assistant Secretaries,
Assistant Treasurers, and such other officers and agents as the
Board of Directors may desire. Officers shall be appointed by
the Board of Directors at its first meeting after every annual
meeting of stockholders. Each officer or agent appointed by the
Board of Directors shall hold office until a successor is elected
and qualified or until such person's earlier resignation or
removal. Any number of offices may be held by the same person.
Section 2. Duties of the Chairman of the Board
The Chairman of the Board shall preside at all meetings of
the stockholders and of the Board of Directors.
Unless otherwise directed by the Board of Directors, the
Chairman of the Board, or such other officer or agent as the
Chairman of the Board may designate, shall have authority to vote
and otherwise act on behalf of the corporation, in person or by
proxy, at any meeting of stockholders, or with respect to any
action of stockholders of any other corporation in which this
corporation may hold securities, and otherwise to exercise any
and all rights and powers that this corporation may possess by
reason of its ownership of securities in any other corporation.
Section 3. Duties of the President
The President shall perform the duties as usually pertain to
the office and such other duties as may from time to time be
assigned.
Section 4. Duties of Vice Presidents
Each Vice President shall perform the duties as usually
pertain to the office to which appointed and such other duties as
may from time to time be assigned.
Section 5. Duties of Secretary and Assistant Secretaries
The Secretary shall make a record of the proceedings of all
meetings of the stockholders, Board of Directors and any
committee of Directors, in books to be kept for that purpose.
The Secretary shall also give and publish all necessary notices
of all meetings, have custody of the corporate seal and affix it
when authorized, and preserve and keep all general contracts,
papers and documents. In general, the Secretary shall perform
all duties incident to the office of Secretary and such other
duties as from time to time may be assigned.
Each Assistant Secretary shall perform such duties of the
Secretary as may from time to time be assigned.
Section 6. Duties of Treasurer and Assistant Treasurers
The Treasurer shall have charge of all monies, funds and
securities which may come into the Treasurer's possession,
maintain deposits of the corporation's monies and funds in such
depositories as the Board of Directors, the Chairman of the Board
or the President shall approve, make disbursements of such monies
and funds under direction of the Board of Directors, the Chairman
of the Board, or the President, keep an account of all receipts
and disbursements, and make such reports as may be required. The
Treasurer shall also maintain a record of the outstanding shares
of stock in the corporation, a stock transfer record and a list
of the stockholders of the corporation. In general, the
Treasurer shall perform all duties incident to the office of
Treasurer and such other duties as from time to time may be
assigned.
Each Assistant Treasurer shall perform such duties of the
Treasurer as may from time to time be assigned.
Section 7. Duties of the Vice President-Chief Financial
Officer
The Vice President-Chief Financial Officer shall be the
principal officer in charge of the accounts of the corporation
and shall perform all duties incident to the office of Vice
President-Chief Financial Officer and such other duties as from
time to time may be assigned.
Section 8. Delegation of Authority
The Board of Directors may from time to time assign or
delegate the powers, authorities or duties of the Chairman of the
Board, the President or any officer or agent to any other
officers or agents, notwithstanding any provision hereof.
Article IV
Indemnification
The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (including any action or suit by or in the right of
the corporation) by reason of the fact that such person is or was
a Director, officer or employee of the corporation, or, while
such person is or was a Director, officer or employee of the
corporation, such person 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 such person in connection with such
action, suit, or proceeding, but in each case only if and to the
extent permitted under applicable state or federal law.
The indemnification provided herein shall not be deemed
exclusive of any other rights to which those indemnified may be
entitled, and shall continue as to a person who has ceased to be
a Director, officer, employee, or agent, and shall inure to the
benefit of the heirs and personal representatives of such a
person.
Article V
Stock
Section 1. Stock Certificates; Uncertificated Shares
The shares of the corporation shall be represented by
certificates, provided that the Board of Directors of the
corporation may provide by resolution or resolutions that some or
all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of
stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the Chairman or
Vice-Chairman of the Board of Directors, or the President or Vice-
President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of such corporation
representing the number of shares registered in certificate form.
Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
Section 2. Transfers of Stock
Transfers of stock shall be made only on the stock transfer
record of the corporation and upon surrender of the certificate
previously issued therefor which is outstanding and not canceled,
except in the case of uncertificated shares.
Section 3. Transfer on Death Directions
At the request of a stockholder residing in a state that
permits transfer on death directions by law, the Treasurer shall
record on the stockholder's certificate, or, in the case of
uncertificated shares, upon the account statements evidencing the
shares, a direction to transfer the stockholder's interest in the
corporation to a person designated by the stockholder on death of
the stockholder. The Treasurer shall execute such direction upon
proof of death of the stockholder, surrender of the outstanding
certificate with the direction written thereon, and under such
regulations as may be prescribed by the Treasurer.
Article VI
Business Combinations
Section 1. Vote Required for Certain Business Combinations
A. In addition to any vote of stockholders required by law or
these Bylaws, and except as otherwise expressly provided in
Section 2 of this Article VI, any Business Combination (as
hereinafter defined) shall require the affirmative vote of
the holders of at least 66b percent of the then outstanding
shares of capital stock of the corporation entitled to vote
generally in the election of Directors (the "Voting Stock"),
voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may
be required, or that a lesser percentage may be specified,
by law or in any agreement with any national securities
exchange or otherwise.
B. The term "Business Combination" shall mean:
i. Any merger or consolidation of the corporation or any
subsidiary (as hereinafter defined) with (a) any
Interested Stockholder (as hereinafter defined) or (b)
any other corporation which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
ii. Any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in either one or in a series of
transactions) to or with any Interested Stockholder or
any Affiliate of any Interested Stockholder of any
assets of the corporation or any subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of
$10,000,000 or more; or
iii. The issuance or transfer by the corporation or any
subsidiary (in either one or in a series of
transactions) of any securities of the corporation or
any subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $10,000,000 or
more; or
iv. The adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed
by or on behalf of an Interested Stockholder or any
Affiliate of any Interested Stockholder; or
v. Any reclassification of securities (including any
reverse stock split), or recapitalization of the
corporation, or any merger or consolidation of the
corporation with any of its subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
corporation or any subsidiary which is directly or
indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder.
Section 2. Exceptions to Vote Required by Section 1
The provisions of Section 1 of this Article VI shall not be
applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as
is required by law and any other provision of these Bylaws, if:
A. The Business Combination is approved by a majority of the
Continuing Directors (as hereinafter defined); or
B. All of the following conditions are met:
i. The aggregate amount of the cash and the Fair Market
Value of any consideration other than cash as of the
date of the consummation of the Business Combination to
be received per share by holders of common stock in
such Business Combination or by holders of shares of
any other class of outstanding Voting Stock shall be at
least equal to the highest amount determined under sub-
clauses (a), (b), and (c) below:
a. The highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of common stock
acquired by it (1) within the two-year period
immediately prior to the first public announcement
of the proposal of the Business Combination (the
"Announcement Date") or (2) in the transaction in
which it became an Interested Stockholder,
whichever is higher; and
b. The Fair Market Value per share of common stock on
the day after the Announcement Date or on the date
on which the Interested Stockholder became an
Interested Stockholder, whichever is higher; and
c. The price per share equal to the Fair Market Value
per share of common stock determined pursuant to
paragraph B(i)(b) above, multiplied by the ratio
of (1) the highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of common stock it
acquired within the two-year period immediately
prior to the Announcement Date to (2) the Fair
Market Value per share of common stock on the
first day in such two-year period upon which the
Interested Stockholder acquired any shares of
common stock; and
ii. The consideration to be received by holders of a
particular class of outstanding Voting Stock shall be
in cash or in the same form as the Interested
Stockholder has previously paid for shares of such
class of Voting Stock. If the Interested Stockholder
has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of
consideration for such class of Voting Stock shall be
either cash or the form of consideration used by the
Interested Stockholder to acquire the largest number of
shares of such class of Voting Stock previously
acquired by it; and
iii. After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of
such Business Combination:
a. Except as approved by a majority of the Continuing
Directors, there shall have been no failure to
declare and pay at the regular date therefor any
full quarterly dividends (whether or not
cumulative) on any outstanding preferred stock;
and
b. There shall have been (1) no reduction in the
annual rate of dividends paid on the common stock
(except as necessary to reflect any subdivision of
the common stock), except as approved by a
majority of the Continuing Directors, and (2) an
increase in such annual rate of dividends as
necessary to reflect any reclassification
(including any reverse stock split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing the
number of outstanding shares of the common stock,
unless the failure so to increase such annual rate
is approved by a majority of the Continuing
Directors; and
c. Such Interested Stockholder shall have not become
the beneficial owner of any additional shares of
Voting Stock except as part of the transaction
which resulted in such Interested Stockholder
becoming an Interested Stockholder; and
iv. A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations)
shall be mailed to the stockholders of the corporation
at least thirty (30) days prior to the consummation of
such Business Combination, whether or not such proxy or
information statement is required pursuant thereto.
Section 3. Definitions
For the purposes of this Article VI:
A. A "person" shall mean any individual, firm, corporation or
other entity.
B. "Interested Stockholder" shall mean any person (other than
the corporation or any subsidiary (as hereinafter defined)
and other than any profit sharing, thrift, employee stock
ownership, retirement or other employee benefit plan of the
corporation or any subsidiary of any trustee of or fiduciary
with respect to any such plan when acting in such capacity)
who or which:
i. Is the beneficial owner (as hereinafter defined),
directly or indirectly, of more than 10 percent (10%)
of any shares of the Voting Stock of the corporation;
or
ii. Is an Affiliate (as hereinafter defined) of the
corporation and at any time within the two-year period
immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10 percent
(10%) or more of any shares of the Voting Stock of the
corporation; or
iii. Is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within
the two-year period immediately prior to the date in
question beneficially owned by any Interested
Stockholder, if such assignment or succession shall
have occurred in the course of a transaction or series
of transactions not involving a public offering within
the meaning of the Securities Act of 1933.
C. A person shall be deemed a "beneficial owner" of any shares
of Voting Stock:
i. Which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
ii. Which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants, or
options or otherwise, or (b) the right to vote pursuant
to any agreement, arrangement or understanding; or
iii. Which are beneficially owned, directly or indirectly,
by any other person with which such person or any of
its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares
of Voting Stock.
D. "Affiliate" or "Associate" shall have the same meanings set
forth for such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on March 1, 1983.
E. "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or
indirectly, by the corporation; provided, however, that for
the purposes of the definition of Interested Stockholder set
forth in paragraph B of this Section 3, the term
"subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly
or indirectly, by the corporation.
F. "Continuing Director" means any member of the Board of
Directors of the corporation who is unaffiliated with the
Interested Stockholder and was a member of the Board prior
to the time that the Interested Stockholder became an
Interested Stockholder and any successor of a Continuing
Director who is unaffiliated with the Interested Stockholder
and is recommended or elected to succeed a Continuing
Director by a majority of Continuing Directors then on the
Board.
G. "Fair Market Value" means: (1) in the case of stock, the
highest closing sale price during the 30-day period
immediately preceding the date in question of a share of
such stock on the Composite Tape for New York Stock Exchange-
Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such
stock is not listed on such Exchange, on the principal
United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to
a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities
Dealers, Inc., Automated Quotations System or any system
then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such
stock as determined by the majority of the Continuing
Directors in good faith; and (2) in the case of property
other than cash or stock, the fair market value of such
property on the date in question as determined by a majority
of the Continuing Directors in good faith.
H. In the event of any Business Combination in which the
corporation survives, the phrase "any consideration other
than cash" as used in paragraph B(i) of Section 2 of this
Article VI shall include the shares of common stock and/or
the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
Section 4. Certain Determinations
The Continuing Directors of the corporation shall have the
power and duty to determine for the purposes of this Article VI,
on the basis of information known to them after reasonable
inquiry: (a) whether a person is an Interested Stockholder; (b)
the number of shares of Voting Stock beneficially owned by any
person; (c) whether a person is an Affiliate or Associate of
another person; and (d) whether the assets which are the subject
of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the
corporation or any subsidiary in any Business Combination has, an
aggregate Fair Market Value of $10,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested
Stockholders
Nothing contained in this Article VI shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
otherwise imposed by law.
Article VII
Miscellaneous
Section 1. Facsimile Signatures
In addition to the provision for the use of facsimile
signatures on stock certificates as provided in Section 1 of
Article V, facsimile signatures of any officer or officers of the
corporation may be used whenever and as authorized by the Board
of Directors.
Section 2. Corporate Seal
The Board of Directors shall provide a suitable seal for the
corporation that contains the name of the corporation and the
state of incorporation, which seal shall be kept by the
Secretary.
Section 3. Fiscal Year
The fiscal year of the corporation shall be identical with
the calendar year unless otherwise established by the Board of
Directors.
Section 4. Time Periods
In applying any provision of these Bylaws which requires
that an act be done or not be done in a specified number of days
prior to an event, or that an act be done during a period of a
specified number of days prior to an event, calendar days shall
be used. The day of the doing of the act shall be excluded and
the day of the event shall be included.
Article VIII
Amendments
These Bylaws may be amended or repealed in accordance with
the Certificate of Incorporation by the Board of Directors at any
meeting or by the stockholders at any meeting.
SBC COMMUNICATIONS INC.
Incorporated under the Laws of the State of Delaware, October 5,
1983
Bylaws
Article I
Stockholders
Section 1. Annual Meeting
An annual meeting of the stockholders, for the election of
Directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before
the meeting, shall be held at such place, on such date, and at
such time as the Board of Directors shall fix each year.
Section 2. Special Meeting
Special meetings of the stockholders may be called at any
time, either by the Board of Directors or by the Chairman of the
Board, and the Chairman of the Board shall call a special meeting
whenever requested in writing to do so by stockholders
representing two-thirds of the shares of the corporation, then
outstanding, and entitled to vote at such meeting. This request
must specify the time, place and object of the proposed meeting.
Section 3. Notice of Meetings
Written notice of all meetings of the stockholders shall be
given to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date
on which the meeting is to be held. The notice shall state 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. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail with postage thereon
prepaid, addressed to the stockholder at his address as it
appears on the stock transfer books of the corporation. Any
previously scheduled meeting of the stockholders may be postponed
by resolution of the Board of Directors upon public notice given
prior to the time previously scheduled for such meeting of
stockholders.
When a meeting is adjourned to another place, date, or time,
written notice need not be given of the meeting when reconvened,
if the place, date, and time thereof are announced at the meeting
at which the adjournment is taken. If the date of the meeting to
be reconvened is more than thirty (30) days after the date for
which notice of the meeting was originally given or if a new
record date is fixed for the meeting, written notice of the
place, date and time of the meeting to be reconvened shall be
given in conformity herewith. At any reconvened meeting, any
business may be transacted that might have been transacted at the
original meeting.
Section 4. Quorum
At any meeting of the stockholders, the holders of forty
percent (40%) of all of the shares of the stock entitled to vote
at the meeting, present in person or by proxy, shall constitute a
quorum for the transaction of business.
If a quorum shall fail to attend any meeting, the chairman
of the meeting or the holders of a majority of the shares of the
stock entitled to vote who are present, in person or by proxy,
may adjourn the meeting to another place, date, or time.
Section 5. Organization
The Chairman of the Board, or a Director or officer as the
Chairman of the Board may designate, shall act as chairman of the
stockholders' meeting. The chairman of the meeting shall
designate an officer to act as a secretary for the meeting in the
absence of the corporation's Secretary.
Section 6. Proxies and Voting
At any meeting of the stockholders, every stockholder
entitled to vote may vote in person or by proxy executed in
writing and filed with the corporation in accordance with the
procedure established for the meeting.
Each holder of common stock shall have one vote for every
share of stock that is registered in the stockholder's name on
the record date for the meeting.
All voting may be by a voice vote, provided that upon demand
of a stockholder entitled to vote in person or by proxy, a
recorded vote of all shares of stock at the meeting shall be
taken.
Directors shall be elected by a plurality of the votes cast.
All other matters shall be determined by a majority of the votes
cast, unless a greater number is required by law or the
Certificate of Incorporation for the action proposed.
Section 7. Nomination of Directors
Only persons who are nominated in accordance with the
following procedures shall be eligible for election as Directors.
Nomination of persons for election to the Board of Directors may
be made at any annual meeting of stockholders (a) by or at the
direction of the Board of Directors or any duly authorized
committee thereof or (b) by any stockholder of the corporation
entitled to vote for the election of Directors at the annual
meeting. In addition to any other applicable requirements, a
nomination made by a stockholder shall be pursuant to timely
notice in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must
be received at the principal executive offices of the corporation
not less than sixty (60) days nor more than ninety (90) days
prior to the date of the annual meeting; provided, however, that
in the event that less than seventy (70) days' notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder must be received not
later than ten (10) days following the day on which notice or
public disclosure of the date of the annual meeting was mailed or
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the
stockholder proposes to nominate for election as Director (i) the
name, age, business address, and residence address of the person,
(ii) the principal occupation or employment of the person, (iii)
the class 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 is required to be disclosed in solicitations of proxies for
election of Directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended, 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, and (iii) any 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 solicitation of proxies for the election
of Directors pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended. 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 person shall be eligible for election as a Director of
the corporation unless nominated in accordance with the
procedures set forth in this Section 7. If the Chairman
determines that a nomination was not made in accordance with the
foregoing procedure, the Chairman shall declare to the meeting
that the nomination was defective and such defective nomination
shall be disregarded.
Section 8. Conduct of Annual Meeting
No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in
the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof), or (c) otherwise properly
brought before the meeting by a stockholder as of the record date
for the determination of stockholders entitled to vote at such
annual meeting. In addition to any other applicable requirements
for business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must
be received at the principal executive offices of the corporation
not less than sixty (60) days nor more than ninety (90) days
prior to the date of the annual meeting; provided, however, that
in the event that less than seventy (70) days' notice or prior
public disclosure of the date of the annual meeting is given or
made to the stockholder, notice by the stockholder must be
received not later than the close of business on the tenth day
following the day in which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, stockholder's notice to the
Secretary must set forth, as to each matter such stockholder
proposes to bring before the annual meeting, (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 of such stockholder, and (iv) any material interest of
the stockholder in such business.
No business shall be conducted at the annual meeting of
stockholders except in accordance with the procedures set forth
in this Section 8; provided, however, that nothing in this
Section 8 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual
meeting. If the Chairman determines that business was not
properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting
that the business was not brought properly before the meeting and
such business shall not be transacted.
Article II
Board of Directors
Section 1. Number and Terms of Office
The business and affairs of the corporation shall be under
the direction of a Board of Directors.
The number of Directors shall be not more than twenty-one
(21), as determined by a majority vote of the total number of
Directors then serving in office.
Directors shall be divided into three classes designated as
Group A, Group B, and Group C. The three classes of Directors
shall each consist of an equal number of Directors or a number of
Directors as nearly equal as possible. When the total number of
Directors is divided by three and one remains, the Director
remaining shall be assigned to Group A. When the total number of
Directors is divided by three and two remain, they shall be
assigned one to Group A and one to Group B. The number of
Directors in any one class may not exceed the number of Directors
in any other class by more than one, except as may result from
the phasing-in of a decrease in Directors under Section 2 of this
Article II.
The Board of Directors appointed by the incorporators shall
serve until the first stockholders' meeting. At the first
meeting of stockholders after organization of the corporation,
Directors to serve in Group A shall be elected to a term of one
year; Directors to serve in Group B shall be elected to a term of
two years; and Directors to serve in Group C shall be elected to
a full term of three years. Thereafter, at each annual meeting
of the stockholders, Directors shall be elected to a full term of
three years to succeed those in the Director group whose terms
expire at that annual meeting.
Section 2. Increases and Decreases in Directors
The Board of Directors may increase or decrease the number
of Directors, subject to the maximum limits provided in Section 1
of this Article II, by a vote of a majority of the total number
of Directors. Any vacancies created by an increase in the number
of Directors shall be filled as provided in Section 3 of this
Article II and be distributed among the Director groups in
accordance with Section 1 of this Article II. Any decrease in
the authorized number of Directors shall be phased in by reducing
the number of Directors in the first Director group whose terms
expire subsequent to the decrease to the number required to be in
that group by Section 1 of this Article II at the end of the
phasing-in period, and by similarly reducing the number of
Directors in the other Director groups upon expiration of their
terms, so that when the terms of Directors in all three Director
groups have successively expired subsequent to the decrease, each
Director group shall have the distribution of Directors required
by Section 1 of this Article II of these Bylaws.
Section 3. Vacancies
If the position of any Director is or becomes vacant, a
majority of the Directors remaining in office may appoint a
successor to serve the full or remaining term, as the case may
be, of the other Directors in the group in which the vacancy
occurred or was created.
Section 4. Regular Meetings
Regular meetings of the Board of Directors shall be held at
such place or places, on such date or dates, and at such time or
times as shall be established by the Board of Directors. A
notice of each regular meeting shall not be required.
Section 5. Special Meetings
Special meetings of the Board of Directors may be called by
one-third of the Directors or by the Chairman of the Board and
shall be held at such place, on such date, and at such time as
the Directors calling the meeting or the Chairman of the Board
shall fix. Notice of a special meeting shall be given to each
Director in any of the following ways: in person, by telephone
or by delivery of a written notice or facsimile communication to
the Director's business or residence. Notice given in writing or
by facsimile communication to the Director's business or
residence must be delivered at least twenty-four (24) hours
before such meeting. Notice given by telephone or in person
shall be given at least twelve (12) hours prior to the time set
for the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of
Directors need be specified in the notice of such meeting. A
written waiver of any notice, signed by a Director, whether
before or after the time of the event for which notice is to be
given, shall be equivalent to the notice required to be given to
such person.
Section 6. Quorum
At any meeting of the Board of Directors, a majority of the
total number of the Directors shall constitute a quorum.
Section 7. Committees of the Board of Directors
The corporation elects to be governed by the provisions of
Section 141(c)(2) of the General Corporation of the State of
Delaware, as amended effective July 1, 1996. The Board of
Directors may from time to time designate committees of the Board
of Directors, with such lawfully delegable powers and duties as
it thereby confers, to serve at the pleasure of the Board of
Directors and shall elect a Director or Directors to serve as the
member or members, designating, if it desires, other Directors as
alternate members who may replace any absent or disqualified
members at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of
Directors as permitted by law. In the absence or
disqualification of any member of any committee and any alternate
member designated to replace such member, the members of the
committee present at the meeting and not disqualified from voting
may by unanimous vote appoint another member of the Board of
Directors to act at the meeting in the place of the absent or
disqualified member.
Each committee may determine procedural rules for the
conduct of its meetings and business, and shall act in accordance
therewith, unless otherwise provided by the Board of Directors in
the resolution establishing the committee.
Article III
Officers of the Company
Section 1. Generally
The officers of the corporation shall consist of a Chairman
of the Board, a President, one or more Vice Presidents, a
Secretary, a Treasurer, and a Vice President-Chief Financial
Officer appointed by the Board of Directors. The Board of
Directors may also appoint one or more Assistant Secretaries,
Assistant Treasurers, and such other officers and agents as the
Board of Directors may desire. Officers shall be appointed by
the Board of Directors at its first meeting after every annual
meeting of stockholders. Each officer or agent appointed by the
Board of Directors shall hold office until a successor is elected
and qualified or until such person's earlier resignation or
removal. Any number of offices may be held by the same person.
Section 2. Duties of the Chairman of the Board
The Chairman of the Board shall preside at all meetings of
the stockholders and of the Board of Directors.
Unless otherwise directed by the Board of Directors, the
Chairman of the Board, or such other officer or agent as the
Chairman of the Board may designate, shall have authority to vote
and otherwise act on behalf of the corporation, in person or by
proxy, at any meeting of stockholders, or with respect to any
action of stockholders of any other corporation in which this
corporation may hold securities, and otherwise to exercise any
and all rights and powers that this corporation may possess by
reason of its ownership of securities in any other corporation.
Section 3. Duties of the President
The President shall perform the duties as usually pertain to
the office and such other duties as may from time to time be
assigned.
Section 4. Duties of Vice Presidents
Each Vice President shall perform the duties as usually
pertain to the office to which appointed and such other duties as
may from time to time be assigned.
Section 5. Duties of Secretary and Assistant Secretaries
The Secretary shall make a record of the proceedings of all
meetings of the stockholders, Board of Directors and any
committee of Directors, in books to be kept for that purpose.
The Secretary shall also give and publish all necessary notices
of all meetings, have custody of the corporate seal and affix it
when authorized, and preserve and keep all general contracts,
papers and documents. In general, the Secretary shall perform
all duties incident to the office of Secretary and such other
duties as from time to time may be assigned.
Each Assistant Secretary shall perform such duties of the
Secretary as may from time to time be assigned.
Section 6. Duties of Treasurer and Assistant Treasurers
The Treasurer shall have charge of all monies, funds and
securities which may come into the Treasurer's possession,
maintain deposits of the corporation's monies and funds in such
depositories as the Board of Directors, the Chairman of the Board
or the President shall approve, make disbursements of such monies
and funds under direction of the Board of Directors, the Chairman
of the Board, or the President, keep an account of all receipts
and disbursements, and make such reports as may be required. The
Treasurer shall also maintain a record of the outstanding shares
of stock in the corporation, a stock transfer record and a list
of the stockholders of the corporation. In general, the
Treasurer shall perform all duties incident to the office of
Treasurer and such other duties as from time to time may be
assigned.
Each Assistant Treasurer shall perform such duties of the
Treasurer as may from time to time be assigned.
Section 7. Duties of the Vice President-Chief Financial
Officer
The Vice President-Chief Financial Officer shall be the
principal officer in charge of the accounts of the corporation
and shall perform all duties incident to the office of Vice
President-Chief Financial Officer and such other duties as from
time to time may be assigned.
Section 8. Delegation of Authority
The Board of Directors may from time to time assign or
delegate the powers, authorities or duties of the Chairman of the
Board, the President or any officer or agent to any other
officers or agents, notwithstanding any provision hereof.
Article IV
Indemnification
The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (including any action or suit by or in the right of
the corporation) by reason of the fact that such person is or was
a Director, officer or employee of the corporation, or, while
such person is or was a Director, officer or employee of the
corporation, such person 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 such person in connection with such
action, suit, or proceeding, but in each case only if and to the
extent permitted under applicable state or federal law.
The indemnification provided herein shall not be deemed
exclusive of any other rights to which those indemnified may be
entitled, and shall continue as to a person who has ceased to be
a Director, officer, employee, or agent, and shall inure to the
benefit of the heirs and personal representatives of such a
person.
Article V
Stock
Section 1. Stock Certificates; Uncertificated Shares
The shares of the corporation shall be represented by
certificates, provided that the Board of Directors of the
corporation may provide by resolution or resolutions that some or
all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of
stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the Chairman or
Vice-Chairman of the Board of Directors, or the President or Vice-
President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of such corporation
representing the number of shares registered in certificate form.
Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
Section 2. Transfers of Stock
Transfers of stock shall be made only on the stock transfer
record of the corporation and upon surrender of the certificate
previously issued therefor which is outstanding and not canceled,
except in the case of uncertificated shares.
Section 3. Transfer on Death Directions
At the request of a stockholder residing in a state that
permits transfer on death directions by law, the Treasurer shall
record on the stockholder's certificate, or, in the case of
uncertificated shares, upon the account statements evidencing the
shares, a direction to transfer the stockholder's interest in the
corporation to a person designated by the stockholder on death of
the stockholder. The Treasurer shall execute such direction upon
proof of death of the stockholder, surrender of the outstanding
certificate with the direction written thereon, and under such
regulations as may be prescribed by the Treasurer.
Article VI
Business Combinations
Section 1. Vote Required for Certain Business Combinations
A. In addition to any vote of stockholders required by law or
these Bylaws, and except as otherwise expressly provided in
Section 2 of this Article VI, any Business Combination (as
hereinafter defined) shall require the affirmative vote of
the holders of at least 66b percent of the then outstanding
shares of capital stock of the corporation entitled to vote
generally in the election of Directors (the "Voting Stock"),
voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may
be required, or that a lesser percentage may be specified,
by law or in any agreement with any national securities
exchange or otherwise.
B. The term "Business Combination" shall mean:
i. Any merger or consolidation of the corporation or any
subsidiary (as hereinafter defined) with (a) any
Interested Stockholder (as hereinafter defined) or (b)
any other corporation which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
ii. Any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in either one or in a series of
transactions) to or with any Interested Stockholder or
any Affiliate of any Interested Stockholder of any
assets of the corporation or any subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of
$10,000,000 or more; or
iii. The issuance or transfer by the corporation or any
subsidiary (in either one or in a series of
transactions) of any securities of the corporation or
any subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $10,000,000 or
more; or
iv. The adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed
by or on behalf of an Interested Stockholder or any
Affiliate of any Interested Stockholder; or
v. Any reclassification of securities (including any
reverse stock split), or recapitalization of the
corporation, or any merger or consolidation of the
corporation with any of its subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
corporation or any subsidiary which is directly or
indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder.
Section 2. Exceptions to Vote Required by Section 1
The provisions of Section 1 of this Article VI shall not be
applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as
is required by law and any other provision of these Bylaws, if:
A. The Business Combination is approved by a majority of the
Continuing Directors (as hereinafter defined); or
B. All of the following conditions are met:
i. The aggregate amount of the cash and the Fair Market
Value of any consideration other than cash as of the
date of the consummation of the Business Combination to
be received per share by holders of common stock in
such Business Combination or by holders of shares of
any other class of outstanding Voting Stock shall be at
least equal to the highest amount determined under sub-
clauses (a), (b), and (c) below:
a. The highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of common stock
acquired by it (1) within the two-year period
immediately prior to the first public announcement
of the proposal of the Business Combination (the
"Announcement Date") or (2) in the transaction in
which it became an Interested Stockholder,
whichever is higher; and
b. The Fair Market Value per share of common stock on
the day after the Announcement Date or on the date
on which the Interested Stockholder became an
Interested Stockholder, whichever is higher; and
c. The price per share equal to the Fair Market Value
per share of common stock determined pursuant to
paragraph B(i)(b) above, multiplied by the ratio
of (1) the highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of common stock it
acquired within the two-year period immediately
prior to the Announcement Date to (2) the Fair
Market Value per share of common stock on the
first day in such two-year period upon which the
Interested Stockholder acquired any shares of
common stock; and
ii. The consideration to be received by holders of a
particular class of outstanding Voting Stock shall be
in cash or in the same form as the Interested
Stockholder has previously paid for shares of such
class of Voting Stock. If the Interested Stockholder
has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of
consideration for such class of Voting Stock shall be
either cash or the form of consideration used by the
Interested Stockholder to acquire the largest number of
shares of such class of Voting Stock previously
acquired by it; and
iii. After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of
such Business Combination:
a. Except as approved by a majority of the Continuing
Directors, there shall have been no failure to
declare and pay at the regular date therefor any
full quarterly dividends (whether or not
cumulative) on any outstanding preferred stock;
and
b. There shall have been (1) no reduction in the
annual rate of dividends paid on the common stock
(except as necessary to reflect any subdivision of
the common stock), except as approved by a
majority of the Continuing Directors, and (2) an
increase in such annual rate of dividends as
necessary to reflect any reclassification
(including any reverse stock split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing the
number of outstanding shares of the common stock,
unless the failure so to increase such annual rate
is approved by a majority of the Continuing
Directors; and
c. Such Interested Stockholder shall have not become
the beneficial owner of any additional shares of
Voting Stock except as part of the transaction
which resulted in such Interested Stockholder
becoming an Interested Stockholder; and
iv. A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations)
shall be mailed to the stockholders of the corporation
at least thirty (30) days prior to the consummation of
such Business Combination, whether or not such proxy or
information statement is required pursuant thereto.
Section 3. Definitions
For the purposes of this Article VI:
A. A "person" shall mean any individual, firm, corporation or
other entity.
B. "Interested Stockholder" shall mean any person (other than
the corporation or any subsidiary (as hereinafter defined)
and other than any profit sharing, thrift, employee stock
ownership, retirement or other employee benefit plan of the
corporation or any subsidiary of any trustee of or fiduciary
with respect to any such plan when acting in such capacity)
who or which:
i. Is the beneficial owner (as hereinafter defined),
directly or indirectly, of more than 10 percent (10%)
of any shares of the Voting Stock of the corporation;
or
ii. Is an Affiliate (as hereinafter defined) of the
corporation and at any time within the two-year period
immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10 percent
(10%) or more of any shares of the Voting Stock of the
corporation; or
iii. Is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within
the two-year period immediately prior to the date in
question beneficially owned by any Interested
Stockholder, if such assignment or succession shall
have occurred in the course of a transaction or series
of transactions not involving a public offering within
the meaning of the Securities Act of 1933.
C. A person shall be deemed a "beneficial owner" of any shares
of Voting Stock:
i. Which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
ii. Which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants, or
options or otherwise, or (b) the right to vote pursuant
to any agreement, arrangement or understanding; or
iii. Which are beneficially owned, directly or indirectly,
by any other person with which such person or any of
its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares
of Voting Stock.
D. "Affiliate" or "Associate" shall have the same meanings set
forth for such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on March 1, 1983.
E. "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or
indirectly, by the corporation; provided, however, that for
the purposes of the definition of Interested Stockholder set
forth in paragraph B of this Section 3, the term
"subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly
or indirectly, by the corporation.
F. "Continuing Director" means any member of the Board of
Directors of the corporation who is unaffiliated with the
Interested Stockholder and was a member of the Board prior
to the time that the Interested Stockholder became an
Interested Stockholder and any successor of a Continuing
Director who is unaffiliated with the Interested Stockholder
and is recommended or elected to succeed a Continuing
Director by a majority of Continuing Directors then on the
Board.
G. "Fair Market Value" means: (1) in the case of stock, the
highest closing sale price during the 30-day period
immediately preceding the date in question of a share of
such stock on the Composite Tape for New York Stock Exchange-
Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such
stock is not listed on such Exchange, on the principal
United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to
a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities
Dealers, Inc., Automated Quotations System or any system
then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such
stock as determined by the majority of the Continuing
Directors in good faith; and (2) in the case of property
other than cash or stock, the fair market value of such
property on the date in question as determined by a majority
of the Continuing Directors in good faith.
H. In the event of any Business Combination in which the
corporation survives, the phrase "any consideration other
than cash" as used in paragraph B(i) of Section 2 of this
Article VI shall include the shares of common stock and/or
the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
Section 4. Certain Determinations
The Continuing Directors of the corporation shall have the
power and duty to determine for the purposes of this Article VI,
on the basis of information known to them after reasonable
inquiry: (a) whether a person is an Interested Stockholder; (b)
the number of shares of Voting Stock beneficially owned by any
person; (c) whether a person is an Affiliate or Associate of
another person; and (d) whether the assets which are the subject
of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the
corporation or any subsidiary in any Business Combination has, an
aggregate Fair Market Value of $10,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested
Stockholders
Nothing contained in this Article VI shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
otherwise imposed by law.
Article VII
Miscellaneous
Section 1. Facsimile Signatures
In addition to the provision for the use of facsimile
signatures on stock certificates as provided in Section 1 of
Article V, facsimile signatures of any officer or officers of the
corporation may be used whenever and as authorized by the Board
of Directors.
Section 2. Corporate Seal
The Board of Directors shall provide a suitable seal for the
corporation that contains the name of the corporation and the
state of incorporation, which seal shall be kept by the
Secretary.
Section 3. Fiscal Year
The fiscal year of the corporation shall be identical with
the calendar year unless otherwise established by the Board of
Directors.
Section 4. Time Periods
In applying any provision of these Bylaws which requires
that an act be done or not be done in a specified number of days
prior to an event, or that an act be done during a period of a
specified number of days prior to an event, calendar days shall
be used. The day of the doing of the act shall be excluded and
the day of the event shall be included.
Article VIII
Amendments
These Bylaws may be amended or repealed in accordance with
the Certificate of Incorporation by the Board of Directors at any
meeting or by the stockholders at any meeting.