SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 15, 1999
(November 9, 1999)
STERLING COMMERCE, INC.
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(Exact Name of Registrant as Specified in Charter)
State of Delaware 1-14196 75-2623341
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
300 Crescent Court, Suite 1200, Dallas, Texas 75201
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (214) 981-1100
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ITEM 5. Other Events.
As of November 9, 1999, the Board of Directors of Sterling Commerce,
Inc. (the "Company") amended certain provisions of the Company's Bylaws,
including without limitation, the period of time during which notices of
stockholder proposals must be delivered to the Company to be presented at
an annual meeting.
A copy of the Amended and Restated Bylaws is attached hereto as
Exhibit 3.3. The foregoing description is qualified in its entirety by
reference to the Amended and Restated Bylaws, a copy of which is filed as
an exhibit to this report.
ITEM 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Description
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3.3 Amended and Restated Bylaws of the Company as in
effect on November 9, 1999
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
STERLING COMMERCE, INC.
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(Registrant)
Date: November 15, 1999 By: /s/ Albert K. Hoover
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Albert K. Hoover
Executive Vice President, Secretary
and General Counsel
AMENDED AND RESTATED
BYLAWS
OF
STERLING COMMERCE, INC.
AS IN EFFECT ON NOVEMBER 9, 1999
TABLE OF CONTENTS
Page
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ARTICLE I - OFFICES
Section 1. Registered Office 1
Section 2. Other Offices 1
ARTICLE II - STOCKHOLDERS
Section 1. Meetings 1
Section 2. Annual Meeting; Advance Notice for
New Business 1
Section 3. List of Stockholders 2
Section 4. Special Meetings 3
Section 5. Notice 3
Section 6. Quorum 3
Section 7. Voting 3
Section 8. Proxies 4
ARTICLE III - BOARD OF DIRECTORS
Section 1. Board of Directors 5
Section 2. Number of Directors; Advance Notice
for Nominations of Directors 5
Section 3. Newly Created Directorships and Vacancies 6
Section 4. Removal 7
Section 5. Chairman of the Board 7
Section 6. Vice Chairman of the Board 7
ARTICLE IV - MEETINGS OF THE BOARD
Section 1. Meetings 7
Section 2. Annual Meeting 7
Section 3. Regular Meetings 7
Section 4. Special Meetings 8
Section 5. Quorum 8
Section 6. Executive Committee 8
Section 7. Other Committees 8
Section 8. Action by Consent 9
Section 9. Compensation of Directors 9
ARTICLE V - NOTICE OF MEETINGS
Section 1. Form of Notice 9
Section 2. Waiver 9
Section 3. Telephone Meetings 9
ARTICLE VI - OFFICERS
Section 1. In General 10
Section 2. Election 10
Section 3. Salaries 10
Section 4. Term of Office and Removal 10
Section 5. Chief Executive Officer 10
Section 6. President 11
Section 7. Chief Operating Officer 11
Section 8. Vice Presidents 11
Section 9. Secretary 12
Section 10. Assistant Secretaries 12
Section 11. Treasurer 12
Section 12. Assistant Treasurers 12
Section 13. Controller 12
Section 14. Bonding 13
ARTICLE VII - CERTIFICATES OF SHARES
Section 1. Form of Certificates 13
Section 2. Lost Certificates 13
Section 3. Transfer of Shares 13
Section 4. Registered Stockholders 14
ARTICLE VIII - GENERAL PROVISIONS
Section 1. Dividends 14
Section 2. Fiscal Year 14
Section 3. Seal 14
ARTICLE IX - INDEMNITY
Section 1. Damages and Expenses 14
Section 2. Insurance, Contracts and Funding 15
ARTICLE X - AMENDMENTS
Section 1. By Stockholders 16
Section 2. By the Board of Directors 16
ARTICLE I
OFFICES
Section 1. Registered Office. The initial registered office of the
corporation shall be at such place as is designated in the Certificate of
Incorporation (herein, as amended from time to time, so called), or
thereafter the registered office may be at such other place as the Board of
Directors may from time to time designate by resolution.
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
Section 1. Meetings. All meetings of the stockholders for the
election of directors shall be held at the principal office of the
corporation, or at such other place within or without the State of
Delaware, as may be fixed from time to time by the Board of Directors.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting; Advance Notice for New Business. An
annual meeting of the stockholders shall be held on such date in each
fiscal year of the corporation as the Board of Directors shall select, at
which meeting the stockholders shall elect members of the Board of
Directors and transact such other business as may properly be brought
before the meeting. No business may be transacted at an annual meeting of
stockholders other than business that is (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 annual meeting by or at the direction
of the Board of Directors (or any duly authorized committee thereof), or
(c) otherwise properly brought before the annual meeting by any stockholder
of the corporation (i) who is a stockholder of record on the date of the
giving of the notice provided for in this Section 2 and on the record date
for the determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth in this
Section 2.
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
delivered to or mailed and received at the principal executive offices of
the corporation not less than eighty days and no earlier than 110 days
prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual
meeting is on a date that is not within thirty days of such anniversary
date, notice by the stockholder in order to be timely must be so received
not later than the close of business on the tenth day following the date on
which such notice of the date of the annual meeting was mailed or publicly
disclosed, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter the 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 that are owned beneficially or of
record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such
business, and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting. In addition, notwithstanding anything in this Section 2,
Article II to the contrary, a stockholder intending to nominate one or more
persons for election as a director at an annual meeting must comply with
Section 2, Article III of these Bylaws (herein, as amended from time to
time, so called) for such nomination or nominations to be properly brought
before such meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 2, provided, however, that, once
business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 2 shall be deemed to preclude
discussion by any stockholder of any such business. If the presiding
officer of an annual meeting determines that business was not properly
brought before the annual meeting in accordance with the foregoing
procedures, such presiding officer shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
Section 3. List of Stockholders. At least ten days before each
meeting of stockholders, a complete list of the stockholders entitled to
vote at said meeting, arranged in alphabetical order, with the address of
and the number of voting shares registered in the name of each, shall be
prepared by the officer or agent having charge of the stock transfer books.
Such list shall be kept on file 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 for a period of ten days prior to such meeting and shall be subject to
inspection by any stockholder at any time during usual business hours. Such
list shall be produced and kept open at the time and place of the meeting
during the whole time thereof, and shall be subject to the inspection of
any stockholder who may be present. The Board of Directors may fix in
advance a record date for the purpose of determining stockholders entitled
to notice of or to vote at a meeting of stockholders, such record date to
be not less than ten nor more than sixty days prior to such meeting, or the
Board of Directors may close the stock transfer books for such purpose for
a period of not less than ten nor more than sixty days prior to such
meeting. In the absence of any action by the Board of Directors, the close
of business on the date next preceding the day on which the notice is given
shall be the record date.
Section 4. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by the General
Corporation Law of the State of Delaware (as from time to time in effect,
herein called "the Act"), or by the Certificate of Incorporation, may be
called only (i) by the Chairman of the Board, (ii) the Chief Executive
Officer, (iii) the President, or (iv) by the Secretary, within 10 calendar
days after receipt of a written request of a majority of the total number
of directors then in office. Business transacted at any special meeting
shall be confined to the purposes stated in the notice of the meeting and
no stockholder shall have the right to bring any additional business
(whether similar or dissimilar in nature) before, or to propose or nominate
any person for appointment or election to any position or office at, any
special meeting unless all stockholders entitled to vote are present and
affirmatively consent thereto.
Section 5. Notice. Written or printed notice stating the place, day
and hour of any meeting of the stockholders and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten nor more than sixty days before the date of the
meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, the President or the Secretary, to each stockholder
of record entitled to vote at the meeting.
Section 6. Quorum. At all meetings of the stockholders, the presence
in person or by proxy of the holders of a majority of the shares issued and
outstanding and entitled to vote shall be necessary and sufficient to
constitute a quorum for the transaction of business except as otherwise
provided by the Act, by the Certificate of Incorporation or by these
Bylaws. If such quorum shall not be present or represented at any meeting
of the stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 7. Voting. When a quorum is present at any meeting, the vote
of the holders of a majority of the shares having voting power present in
person or represented by proxy at such meeting shall decide any questions
brought before such meeting, unless the question is one upon which, by
express provision of the Act or of the Certificate of Incorporation or of
these Bylaws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. Election
of directors at an annual or special meeting shall be by plurality. The
stockholders present in person or by proxy at a duly convened meeting at
which a quorum initially is present may continue to transact business until
the adjournment of such meeting, notwithstanding any withdrawal of
stockholders that results in a quorum ceasing to be present.
Section 8. Proxies. Each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a
meeting of stockholders, except to the extent that the voting rights of the
shares of any class or classes are limited or denied by the Certificate of
Incorporation. Any stockholder entitled to vote may do so in person or by
his or her proxy appointed by an instrument in writing subscribed by such
stockholder or by his or her attorney thereunto authorized, delivered to
the Secretary of the meeting; provided, however, that no proxy shall be
voted or acted upon after three years from its date, unless said proxy
provides for a longer period. Without limiting the manner in which a
stockholder may authorize another person or persons to act for him or her
as proxy, either of the following shall constitute a valid means by which a
stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another
person or persons to act for him or her as proxy. Execution may be
accomplished by the stockholder or his or her authorized officer,
director, employee or agent signing such writing or causing his or
her signature to be affixed to such writing by any reasonable means,
including, but not limited to, by facsimile signature.
(ii)A stockholder may authorize another person or persons to
act for him or her as proxy by transmitting or authorizing the
transmission of a telegram or other means of electronic transmission
to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram or other
means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the
telegram or other electronic transmission was authorized by the
stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission authorizing another person or persons to act as
proxy for a stockholder may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original
writing or transmission could be used.
A duly executed proxy shall be irrevocable if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an interest
in the corporation generally.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Board of Directors. The business and affairs of the
corporation shall be managed by, or under the direction of, its Board of
Directors, which may exercise all such powers of the corporation and do all
such lawful acts and things as are not by the Act or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or
done by the stockholders.
Section 2. Number of Directors; Advance Notice for Nominations of
Directors. Except as otherwise provided in the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock
having a preference over the common stock as to dividends or upon
liquidation to elect additional directors under specified circumstances,
the number of directors (none of whom need be stockholders or residents of
the State of Delaware) shall be fixed by resolution of the Board of
Directors from time to time. The directors, other than those who may be
elected by the holders of any class or series of stock having a preference
over the common stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office,
into three classes, as nearly equal in number as possible, as determined by
the Board of Directors, one class to hold office initially for a term
expiring at the annual meeting of stockholders to be held in 1997, another
class to hold office initially for a term expiring at the annual meeting of
stockholders to be held in 1998, and another class to hold office initially
for a term expiring at the annual meeting of stockholders to be held in
1999, with members of each class to hold office until their successors are
elected and qualified. At each annual meeting of the stockholders of the
corporation, the successors to the class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the corporation,
except as may be otherwise provided in the Certificate of Incorporation
with respect to the right of holders of preferred stock of the corporation
to nominate and elect a specified number of directors in certain
circumstances. Nominations of persons for election 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 (i) who is a
stockholder of record on the date of the giving of the notice provided for
in this Section 2 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies
with the notice procedures set forth in this Section 2.
In addition to any other applicable requirements, for a nomination
to be made 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
delivered to or mailed and received at the principal executive offices of
the corporation not less than eighty days and no earlier than 110 days
prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual
meeting is on a date that is not within thirty days of such anniversary
date, notice by the stockholder in order to be timely must be so received
not later than the close of business on the tenth day following the date on
which such notice of the date of the annual meeting was mailed or publicly
disclosed, 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 a director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the corporation that are owned beneficially or of
record by the person, and (iv) any other information relating to the person
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder and (b) as to the stockholder giving the notice (i)
the name and record address of such stockholder, (ii) the class or series
and number of shares of capital stock of the corporation that are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nominations) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by
proxy at the annual meeting to nominate the persons named in its notice,
and (v) 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 solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to be 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 2. If the presiding officer of the annual meeting determines
that a nomination was not made in accordance with the foregoing procedures,
such presiding officer shall declare to the meeting that the nomination was
defective and such defective nomination shall be disregarded.
Section 3. Newly Created Directorships and Vacancies. Subject to the
rights, if any, of the holders of any class or series of stock having a
preference over the common stock as to dividends or upon liquidation to
elect additional directors under specified circumstances, newly created
directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors, by a sole
remaining director, or, if there is no remaining director, by the
stockholders. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class
of directors in which the new directorship was created or the vacancy
occurred and until such director's successor has been elected and
qualified. No decrease in the number of directors constituting the Board of
Directors may shorten the term of any incumbent director.
Section 4. Removal. Subject to the rights, if any, of the holders of
any class or series of stock having a preference over the common stock as
to dividends or upon liquidation in respect of the election of additional
directors under specified circumstances, any director may be removed from
office by the stockholders only for cause and only in the manner provided
in the Certificate of Incorporation.
Section 5. Chairman of the Board. The Board of Directors may elect
from its members a Chairman of the Board. The Chairman of the Board, if
any, shall preside at all meetings of the Board of Directors at which he or
she may be present and at all meetings of the stockholders and shall
perform such other duties as may be assigned to him or her by the Board of
Directors.
Section 6. Vice Chairman of the Board. The Board of Directors may
elect from its members a Vice Chairman of the Board. The Vice Chairman of
the Board, if any, shall have such powers and perform such duties as the
Board of Directors or the Executive Committee may from time to time
prescribe or as the Chairman of the Board may from time to time delegate to
him or her. In the absence or disability of the Chairman of the Board, if
any, the Vice Chairman of the Board shall perform the duties and exercise
the powers of the Chairman of the Board.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. Meetings. The directors of the corporation may hold their
meetings, both regular and special, at such times and places as are fixed
from time to time by resolution of the Board of Directors.
Section 2. Annual Meeting. A meeting of the Board of Directors shall
be held without further notice immediately following the annual meeting of
stockholders, and at the same place, unless by unanimous consent of the
directors then elected and serving such time or place shall be changed.
Section 3. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from
time to time be determined by resolution of the Board.
Section 4. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer, the President or by a majority of the total number of directors
then in office. The purpose of any special meeting shall be specified in
the notice or any waiver of notice. Each notice of a meeting of the Board
of Directors may be delivered personally or by telephone to a director not
later than the day before the day on which the meeting is to be held; sent
to a director at his or her residence or usual place of business, or at any
other place of which he or she shall have notified the corporation, by
telegram, telex, cable, wireless, facsimile or similar means at least 24
hours before the time at which the meeting is to be held; or posted to him
or her at such place by prepaid first class or air mail, as appropriate, at
least three days before the day on which the meeting is to be held. Notice
of a meeting of the Board of Directors need not be given to any director
who submits a signed waiver of notice, whether before or after the meeting,
or who attends the meeting without protesting, prior to or at its
commencement, the lack of notice to him or her.
Section 5. Quorum. At all meetings of the Board of Directors the
presence of a majority of the total number of directors then in office
shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the affirmative vote of at least a majority of
the directors present at any meeting at which there is a quorum shall be
the act of the Board of Directors except as may be otherwise specifically
provided by the Act or by the Certificate of Incorporation or by these
Bylaws. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time without
notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the total number of directors then in
office, designate an Executive Committee, to consist of two or more
directors of the corporation, one of whom shall be designated as chairman,
who shall preside at all meetings of such Committee. The Executive
Committee shall have and may exercise all of the powers and authority 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 which may require it; provided, however, that the Executive
Committee shall not have power or authority in reference to (i) approving
or adopting, or recommending to the stockholders, any action or matter
expressly required by the Act to be submitted to stockholders for approval,
or (ii) adopting, amending or repealing any provision of these Bylaws. The
Executive Committee shall keep regular minutes of its proceedings and
report the same to the Board of Directors when required. Any member of the
Executive Committee may be removed, with or without cause, by the
affirmative vote of a majority of the total number of directors then in
office. If any vacancy or vacancies occur in the Executive Committee caused
by death, resignation, retirement, disqualification, removal or other
cause, the vacancy shall be filled by the affirmative vote of a majority of
the total number of directors then in office.
Section 7. Other Committees. The Board of Directors may, by
resolution passed by a majority of the total number of directors then in
office, designate other committees, each committee to consist of two or
more directors of the corporation, which committees shall have such power
and authority and shall perform such functions as may be provided in such
resolution. Such committee or committees shall have such name or names as
may be designated by the Board of Directors and shall keep regular minutes
of their proceedings and report the same to the Board of Directors when
required.
Section 8. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors, the Executive Committee or
any other committee of the Board of Directors may be taken without such a
meeting if all the members of the Board of Directors or the Executive
Committee or such other committee, as the case may be, consent thereto in
writing (it being understood that the use of a telegram, electronic mail or
other means of electronic transmission shall satisfy the requirements of
this section) and the writing or writings are filed with the minutes of
proceedings of the Board of Directors, the Executive Committee or such
other committee.
Section 9. Compensation of Directors. Directors, as such, shall not
receive any stated salary for their services, but may receive such
compensation and reimbursements as may be determined from time to time by
resolution of the Board of Directors; provided that nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
ARTICLE V
NOTICE OF MEETINGS
Section 1. Form of Notice. Whenever notice is required to be given
to any director or stockholder under the provisions of the Act or of the
Certificate of Incorporation or of these Bylaws, and no provision is made
as to how such notice shall be given, it shall not be construed to mean
personal notice, but any such notice may be given in writing, by mail,
postage prepaid, addressed to such director or stockholder at such address
as appears on the books of the corporation. Any notice required or
permitted to be given by mail shall be deemed to be given at the time when
the same is deposited in the United States mail.
Section 2. Waiver. Whenever any written notice is required to be
given to any director or stockholder under the provisions of the Act or of
the Certificate of Incorporation or of these Bylaws, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether
before or after the time stated in such notice, shall be deemed equivalent
to the giving of such notice.
Section 3. Telephone Meetings. Stockholders, members of the Board of
Directors or members of any committee designated by the Board of Directors
may participate in and hold meetings of such stockholders, Board of
Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
ARTICLE VI
OFFICERS
Section 1. In General. The officers of the corporation shall be
elected by the Board of Directors and shall consist of a Chief Executive
Officer, a President, a Vice President, a Secretary and a Treasurer. The
Board of Directors may also elect a Chief Operating Officer, additional
Vice Presidents, Assistant Vice Presidents, a Controller, and one or more
Assistant Secretaries and Assistant Treasurers and such other officers as
the Board of Directors may from time to time determine. Any two or more
offices may be held by the same person.
Section 2. Election. The Board of Directors shall elect a Chief
Executive Officer, a President, one or more Vice Presidents, a Secretary
and a Treasurer, none of whom need be a member of the Board of Directors.
Section 3. Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors or by the Executive
Committee or another committee, if so authorized by the Board of Directors;
provided that the Board of Directors may delegate to an officer of the
Company the power to fix the compensation of other officers and agents.
Section 4. Term of Office and Removal. Each officer of the
corporation shall hold office until his or her death, or his or her
resignation or removal from office, or the election or appointment and
qualification of his or her successor, whichever shall first occur. Any
officer or agent elected or appointed by the Board of Directors may be
removed by the Board of Directors, whenever in its judgment the best
interests of the corporation will be served thereby. If the office of any
officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors.
Section 5. Chief Executive Officer. The Chief Executive Officer of
the corporation shall have, subject only to the Board of Directors and the
Executive Committee, general and active management and supervision of the
business and affairs of the corporation and shall see that all orders and
resolutions of the Board of Directors and the Executive Committee are
carried into effect. He or she shall have all powers and duties of
supervision and management usually vested in the general manager of a
corporation, including the supervision and direction of all other officers
of the corporation and the power to appoint and discharge agents and
employees. Without limiting the generality or effect of the foregoing, the
Chief Executive Officer shall have full power and authority, except as
otherwise required by law or directed by the Board of Directors, (a) to
execute, on behalf of the corporation, all duly authorized contracts,
agreements, promissory notes, deeds, assignments, conveyances,
applications, consents, proxies, powers of attorney and other documents and
instruments to which the corporation may be a party, and (b) 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 such
stockholders) of any other corporation in which the corporation may hold
securities and otherwise to exercise any and all rights and powers which
the corporation may possess by reason of its ownership of securities of any
such other corporation.
Section 6. President. The President shall be the chief
administrative officer of the corporation. In the absence of the Chairman
of the Board and the Vice Chairman of the Board, if any, he or she shall
preside at all meetings of the Board of Directors. The President shall
perform such other duties as from time to time may be assigned to him by
the Board of Directors or by the Chief Executive Officer of the
corporation. Without limiting the generality or effect of the foregoing,
the President shall have full power and authority, except as otherwise
required by law or directed by the Board of Directors, (a) to execute, on
behalf of the corporation, all duly authorized contracts, agreements,
promissory notes, deeds, assignments, conveyances, applications, consents,
proxies, powers of attorney and other documents and instruments to which
the corporation may be a party, and (b) 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 such stockholders) of any other
corporation in which the corporation may hold securities and otherwise to
exercise any and all rights and powers which the corporation may possess by
reason of its ownership of securities of any such other corporation.
Section 7. Chief Operating Officer. The Chief Operating Officer of
the corporation shall have such powers and perform such duties as the Board
of Directors may from time to time prescribe, or as the Chief Executive
Officer or President may from time to time delegate to him or her. The
Chief Operating Officer, at the request of the Chief Executive Officer or
the President, in the President's absence or during his inability to act,
shall perform the duties and exercise the functions of the President, and
when so acting shall have the powers of the President. Without limiting the
generality or effect of the foregoing, the Chief Operating Officer shall
have full power and authority, except as otherwise required by law or
directed by the Board of Directors, (a) to execute, on behalf of the
corporation, all duly authorized contracts, agreements, promissory notes,
deeds, assignments, conveyances, applications, consents, proxies, powers of
attorney and other documents and instruments to which the corporation may
be a party, and (b) 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 such stockholders) of any other corporation in which the
corporation may hold securities and otherwise to exercise any and all
rights and powers which the corporation may possess by reason of its
ownership of securities of any such other corporation.
Section 8. Vice Presidents. Each Vice President shall have such
powers and perform such duties as the Board of Directors or the Executive
Committee may from time to time prescribe, or as the Chief Executive
Officer or President may from time to time delegate to him. In the absence
or disability of the President, a Vice President designated by the Board of
Directors shall perform the duties and exercise the powers of the
President. Without limiting the generality or effect of the foregoing, each
Vice President, if any, designated as an "Executive Vice President" shall
have full power and authority, except as otherwise required by law or
directed by the Board of Directors, (a) to execute, on behalf of the
corporation, all duly authorized contracts, agreements, promissory notes,
deeds, assignments, conveyances, applications, consents, proxies, powers of
attorney and other documents and instruments to which the corporation may
be a party, and (b) 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 such stockholders) of any other corporation in which the
corporation may hold securities and otherwise to exercise any and all
rights and powers which the corporation may possess by reason of its
ownership of securities of any such other corporation.
Section 9. Secretary. The Secretary shall attend all meetings of the
stockholders and record all votes and the minutes of all proceedings in a
book to be kept for that purpose. The Secretary shall perform like duties
for the Board of Directors and the Executive Committee when required. He or
she shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors and shall
perform such other duties as may be prescribed by the Board of Directors or
the Chief Executive Officer, under whose supervision he or she shall be. He
or she shall keep in safe custody the seal of the corporation.
Section 10. Assistant Secretaries. Each Assistant Secretary shall
have such powers and perform such duties as the Board of Directors may from
time to time prescribe. Unless otherwise provided by the Board of
Directors, in the absence or disability of the Secretary, any Assistant
Secretary may perform the duties and exercise the powers of the Secretary.
Section 11. Treasurer. The Treasurer shall have the custody of all
corporate funds and securities, shall keep full and accurate accounts of
receipts and disbursements of the corporation, and shall deposit all monies
and other valuable effects in the name and to the credit of the corporation
in such depositories as may be designated by the Board of Directors. He or
she shall disburse the funds of the corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, shall
render to the Chief Executive Officer and directors, at the regular
meetings of the Board of Directors, or whenever they may require it, an
account of all his transactions as Treasurer and of the financial condition
of the corporation, and shall perform such other duties as the Board of
Directors may prescribe.
Section 12. Assistant Treasurers. Each Assistant Treasurer shall
have such powers and perform such duties as the Board of Directors may from
time to time prescribe. Unless otherwise provided by the Board of
Directors, in the absence or disability of the Treasurer, any Assistant
Treasurer may perform and exercise the powers of the Treasurer.
Section 13. Controller. The Controller shall share with the Treasurer
responsibility for the financial and accounting books and records of the
corporation, shall report to the Treasurer, and shall perform such other
duties as the Board of Directors or the Executive Committee or the Chief
Executive Officer may from time to time prescribe.
Section 14. Bonding. If required by the Board of Directors, all or
certain of the officers shall give the corporation a bond, in such form, in
such sum, and with such surety or sureties as shall be satisfactory to the
Board of Directors, for the faithful performance of the duties of their
office and for the restoration to the corporation, in case of their death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in their possession or
under their control belonging to the corporation.
ARTICLE VII
CERTIFICATES OF SHARES
Section 1. Form of Certificates. Certificates representing shares of
stock of the corporation will be in such form as may be determined by the
Board of Directors, subject to applicable legal requirements. Such
certificates shall be consecutively numbered and shall be entered in the
stock book of the corporation as they are issued. Each certificate shall
state on the face thereof the holder's name, the number, class of shares,
and the par value of such shares or a statement that such shares are
without par value. Each certificate shall be signed by the President or a
Vice President and the Secretary or an Assistant Secretary, and may be
sealed with the seal of the corporation or a facsimile thereof. All
signatures upon such certificates may be facsimiles. In case any officer or
officers who have signed, or whose facsimile signature or signatures have
been used on such certificates, shall cease to be such officer or officers
of the corporation, whether because of death, resignation or otherwise,
before such certificates have been delivered by the corporation or its
agents, such certificates may nevertheless be issued and delivered as
though the person or persons who signed such certificates or whose
facsimile signature or signatures have been used thereon had not ceased to
be such officer or officers of the corporation.
Section 2. Lost Certificates. The Secretary or any Assistant
Secretary may direct that a new certificate be issued in place of any
certificate theretofore issued by the corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact,
satisfactory to the Secretary or such Assistant Secretary, by the person
claiming the certificate to have been lost, stolen or destroyed, and the
Secretary or such Assistant Secretary may require the owner of such lost,
stolen or destroyed certificate, or his or her legal representative, to
give the corporation a bond, in such form, in such sum, and with such
surety or sureties as the Secretary or such Assistant Secretary may approve
as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 3. Transfer of Shares. Shares of stock shall be transferable
only on the books of the corporation by the holder thereof in person or by
his or her duly authorized attorney, lawfully constituted in writing.
Section 4. Registered Stockholders. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as
the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the outstanding shares of stock
of the corporation, subject to the applicable provisions of the Certificate
of Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting. Dividends may be declared and paid in cash, in
property, or in shares of the corporation, subject to the provisions of the
Act and the Certificate of Incorporation. The Board of Directors may fix in
advance a record date for the purpose of determining stockholders entitled
to receive payment of any dividend, such record date to be not more than
sixty days prior to the payment date of such dividend, or the Board of
Directors may close the stock transfer books for such purpose for a period
of not more than sixty days prior to the payment date of such dividend. In
the absence of any action by the Board of Directors, the date upon which
the Board of Directors adopts the resolution declaring such dividend shall
be the record date.
Section 2. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 3. Seal. The corporation shall have a seal, and said seal
may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise. Any officer of the corporation shall have
authority to affix the seal to any document requiring it.
ARTICLE IX
INDEMNITY
Section 1. Damages and Expenses. Without limiting the generality or
effect of Article IX of the Certificate of Incorporation, the corporation
shall to the fullest extent permitted by applicable law as then in effect
indemnify any director or officer of the corporation (each, an
"Indemnitee") who is or was or is threatened to be made to become involved
in any manner (including without limitation as a party or a witness) in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether of a civil, criminal, administrative or investigative
nature (including without limitation any action, suit or proceeding by or
in the right of the corporation to procure a judgment in its favor) (each,
a "Proceeding") by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the Board of Directors or an officer of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise (whether
or not for profit), or by reason of anything actually or allegedly done or
not done by such person in any such capacity, against any and all expenses
(including attorneys' fees) actually and reasonably incurred by, and any
and all judgments, fines and penalties entered or assessed against, and any
and all amounts reasonably paid or payable in settlement by, such person in
connection with such Proceeding. Such indemnification shall be a contract
right and shall include the right to receive payment in advance of any
expenses incurred by an Indemnitee in connection with such Proceeding upon
receipt of an undertaking (which may be accepted by the corporation without
any security for the performance thereof and without regard to the
financial capacity of such person to perform it obligations thereunder) by
or on behalf of such person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
corporation as authorized by this Article IX or otherwise.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX shall not be exclusive of any other
rights to which any person seeking indemnification may otherwise be
entitled.
The rights to indemnification and advancement of expenses provided
by, or granted pursuant to, this Article IX shall continue as to a person
who has ceased to be a director, officer, employee or agent of the
corporation or any other enterprise and shall inure to the benefit of the
heirs, executors, administrators and estate of such person.
In addition to the mandatory indemnification of directors and
officers of the corporation provided by this Article IX, the corporation
may, if and to the extent authorized by the Board and permitted by the Act,
indemnify any person or entity against any liability whatsoever.
Section 2. Insurance, Contracts and Funding. The corporation may
purchase and maintain insurance to protect itself or any Indemnitee or
other person against any expenses, judgments, fines and amounts paid in
settlement or incurred by any Indemnitee or other person in connection with
any Proceeding referred to in Article IX or otherwise, to the fullest
extent permitted by applicable law as then in effect. The corporation may
enter into contracts with any person entitled to indemnification under
Article IX or otherwise, and may create a trust fund, grant a security
interest, or use other means (including without limitation procuring one or
more letters of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Article IX.
ARTICLE X
AMENDMENTS
Section 1. By Stockholders. Except as otherwise provided by law or
by the Certificate of Incorporation or these Bylaws, these Bylaws may be
amended or repealed by the affirmative vote of the holders of at least a
majority of the voting power of all shares of the corporation entitled to
vote thereon, at any regular or special meeting of the stockholders, duly
convened after notice to the stockholders of that purpose. Notwithstanding
the foregoing, Sections 1, 2 and 4 of Article II of these Bylaws, Sections
2, 3 and 4 of Article III of these Bylaws and Article X of these Bylaws may
not be amended or repealed by the stockholders and no provision
inconsistent therewith may be adopted by the stockholders without the
affirmative vote of the holders of at least 75% of the voting power of all
shares of stock of the corporation entitled to vote generally in the
election of directors, voting together as a single class
Section 2. By the Board of Directors. Except as otherwise provided
by law or by the Certificate of Incorporation or these Bylaws, these Bylaws
may also be amended or repealed by the Board of Directors by the vote of a
majority of directors.
Adopted: November 9, 1999
/s/ Albert K. Hoover
Albert K. Hoover
Secretary
