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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TeleSpectrum Worldwide Inc.
(Exact name of registrant as specified in its charter)
Delaware 23-2845501
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
443 South Gulph Road
King of Prussia, Pennsylvania 19406
(Address of principal executive offices) (zip code)
If this Form relates to the registration of a If this Form relates to the
class of debt securities and is effective upon registration of a class of
filing pursuant to General Instruction A(c)(1) debt securities and is to
please check the following box. [ ] become effective
simultaneously with the
effectiveness of a
concurrent registration
statement under the
Securities Act of 1933
pursuant to General
Instruction A(c)(2) please
check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is to be
to be so registered registered
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
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(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
The information set forth under the caption "Description of Capital
Stock" on page 66 of the registrant's Preliminary Prospectus dated May 23, 1996
that forms a part of the registrant's Registration Statement on Form S-1, File
No. 333-04349, filed with the Securities and Exchange Commission on May 23,
1996, is incorporated herein by reference.
Item 2. Exhibits
The following exhibits are filed as part of this registration
statement:
Exhibit Description
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1.01 Specimen of Certificate of Common Stock, par value $.01 per share
(to be filed by amendment).
2.01 Restated Certificate of Incorporation of TeleSpectrum Worldwide
Inc.
2.02 Bylaws of TeleSpectrum Worldwide Inc.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
TeleSpectrum Worldwide Inc.
By: /s/ Brian O'Neill
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Name: J. Brian O'Neill
Title: Chairman and Chief Executive Officer
Date: June 19, 1996
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RESTATED CERTIFICATE OF INCORPORATIION
OF
CRW ACQUISITION CORP.
CRW Acquisition Corp., a Delaware corporation, the original Certificate of
Incorporation of which was filed with the Secretary of State of the State of
Delaware on April 29, 1996, HEREBY CERTIFIES that this Restated Certificate of
Incorporation restating, integrating and amending its certificate of
Incorporation was duly proposed by its Board of Directors and adopted by its
stockholders in accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware (the "GCL").
1. Corporate Name. The name of the corporation shall be
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TeleSpectrum Worldwide Inc.
2. Registered Office. The address of the corporation registered
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office is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
3. Corporate Purpose. The nature of the business or purposes to be
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conducted or promoted is to engage in any lawful act or activity for which
corporations may be organized under the GCL.
4. Capital Stock.
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A. Authorized Shares. The total number of shares of all classes
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of stock which the corporation shall have the authority to issue is 205,000,000,
of which 200,000,000 shares are Common Stock, $.01 par value, and 5,000,000
shares are Preferred Stock, $.01 par value.
B. Authority of Board to Fix Terms of Preferred Stock. The Board
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of Directors of the corporation is hereby expressly authorized at any time and
from time to time to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each such class
or series such voting powers, full or limited, or no voting powers, and such
distinctive designations, preferences and relative, participating, optional or
other special rights and such qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of such class or
series and to the fullest extent as may now or hereafter be permitted by the
GCL, including, without limiting the generality of the foregoing, the authority
to provide that any such class or series may be: (i) subject to redemption at
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) at such
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rates, on such conditions, and at such times, and payable in preference to, or
in such relation to, the dividends payable on any other class or classes or any
other series; (iii) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, or other securities
or property, of the corporation at such price or prices or at such rates of
exchange and with such adjustments; all as may be stated in such resolution or
resolutions. Unless otherwise provided in such resolution or resolutions,
shares of Preferred Stock of such class or series which shall be issued and
thereafter acquired by the corporation through purchase, redemption, exchange,
conversion or otherwise shall return to the status of authorized but unissued
and undesignated Preferred Stock.
5. Bylaws. The Board of Directors is expressly authorized from
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time to time to make, alter or repeal the bylaws of the corporation.
6. Board of Directors.
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A. Responsibilities. The business and affairs of the corporation
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shall be managed under the direction of the Board of Directors.
B. Number. The Board of Directors may increase or decrease the
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number of directors by the affirmative vote of one-half of the entire Board of
Directors.
C. Elections of Directors. Elections of directors need not be by
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written ballot unless the bylaws of the corporation shall so provide.
D. Nominations for Directors. Only persons who are nominated in
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accordance with the procedures established in the bylaws shall be eligible for
election as directors.
E. Vacancies. Vacancies and newly created directorships may be
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filled by the Board of Directors.
7. Indemnification.
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A. The corporation shall indemnify to the fullest extent permitted
under and in accordance with the GCL, as it exists as the date hereof or as it
may hereafter be amended, any person who was or is a party to (or witness in) or
is threatened to be made a party to (or witness in) any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was or has agreed to become a
director or officer of the corporation, or is or was a director or officer of
the corporation serving (or who has agreed to serve) at the request of the
corporation as a director, officer, trustee, employee or agent of or in any
other capacity with respect to another corporation, partnership, joint venture,
trust or other enterprise (in any of the foregoing capacities, a
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"Representative of the corporation"), or by reason of any action alleged to have
been taken or omitted in such capacity, and may indemnify to the same extent any
person who was or is a party to (or witness in) or is threatened to be made a
party to (or witness in) any such action, suit or proceeding by reason of the
fact that he is or was or has agreed to become an employee or agent of the
corporation, or is or was an employee or agent of the corporation serving (or
who has agreed to serve) at the request of the corporation as a Representative
of the corporation, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
B. Expenses (including attorney fees) incurred in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall (in the case of any action, suit or proceeding against a director or
officer of the corporation) or may (in the case of any action, suit or
proceeding against an employee, agent or Representative of the corporation) be
paid by the corporation in advance of the final disposition of such action, suit
or proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the indemnified person to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this Article.
C. The indemnification and other rights set forth in this Article
shall not be exclusive of any provisions with respect thereto in the bylaws or
any other contract or agreement between the corporation and any officer,
director, employee or agent or Representative of the corporation, and shall
inure to the benefit of the estate or personal representative of any person
indemnified hereunder.
D. Neither the amendment nor repeal of Section A, B, or C of this
Article nor the adoption of any provision of this Restated Certificate of
Incorporation inconsistent with such Section A, B or C shall eliminate or reduce
the effect of Sections A, B and C of this Article in respect of any matter
arising or relating to any actions or omissions occurring prior to such
amendment, repeal or adoption of an inconsistent provision or in respect of any
cause of action, suit or claim relating to any such matter that would have given
rise to a right of indemnification or right to receive payments of expenses
pursuant to Section A, B or C of this Article if such provision had not been so
amended or repealed or if a provision inconsistent therewith had not been so
adopted.
E. No director of the corporation shall be personally liable to the
corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for any matter in respect of which such
director (a) shall be liable under Section 174 of the GCL or any amendment
thereof or successor provision thereto, or (b) shall be liable because, in
addition to any and all other requirements for liability, he:
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(1) shall have breached his duty of loyalty to the corporation
or its stockholders;
(2) shall not have acted in good faith or, in failing to act,
shall have failed so to act not in good faith;
(3) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have
acted in a manner involving intentional misconduct or a knowing violation
of law; or
(4) shall have derived an improper personal benefit.
If the GCL is amended after the date hereof to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the GCL as so amended. Neither the amendment nor
repeal of this Section E nor the adoption of any provision of this Restated
Certificate of Incorporation inconsistent with this Section E shall eliminate or
reduce the effect of this Section E in respect of any matter arising or relating
to any actions or omissions occurring prior to such amendment, repeal or
adoption of an inconsistent provision.
8. Unanimous Consent of Stockholders in Lieu of Meeting. Any action
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required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of all of the outstanding stock entitled
to vote to take such action at any annual or special meeting of stockholders of
the corporation and shall be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer
or agent of the corporation having custody of the books in which proceedings or
meetings of stockholders are recorded. Every written consent shall bear the date
of signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to unless, within 60
days of the earliest dated consent delivered in the manner required in this
section to the corporation, written consents signed by the holders of all of the
outstanding stock entitled to vote to take such action are delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
9. Amendments. The corporation reserves the right to amend, alter,
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change or repeal any provision contained in this certificate of incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
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IN WITNESS WHEREOF, CRW Acquisition Corp. has caused this Certificate to be
signed on this 22nd day of May, 1996 in its name and attested by duly authorized
officers.
ATTEST: CRW ACQUISITION CORP.
- ----------------------- By: --------------------
Name: John E. Parker Name: Jonathan P. Robinson
Title: Secretary
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B Y L A W S
OF
TELESPECTRUM WORLDWIDE INC.
(a Delaware corporation)
...oo0oo...
ARTICLE I
Offices and Fiscal Year
SECTION 1.01. Registered Office.--The registered office of the corporation
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shall be in the City of Wilmington, County of New Castle, State of Delaware
until otherwise established by resolution of the board of directors, and a
certificate certifying the change is filed in the manner provided by statute.
SECTION 1.02. Other Offices.--The corporation may also have offices at
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such other places within or without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation
requires.
SECTION 1.03. Fiscal Year.--The fiscal year of the corporation shall end
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on the 31st of December in each year.
ARTICLE II
Notice - Waivers - Meetings
SECTION 2.01. Notice, What Constitutes.--Whenever, under the provisions of
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the Delaware General Corporation Law ("GCL") or the certificate of incorporation
or of these bylaws, notice is required to be given to any director or
stockholder, it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail or courier or overnight delivery service or
express mail, charges prepaid, or by facsimile transmission to the address (or
to the facsimile telephone number) of the person appearing on the books of the
corporation, or in the case of directors, supplied to the corporation for the
purpose of notice. If the notice is sent by mail or courier service, it shall
be deemed to be given when deposited in the United States mail or with a courier
or overnight delivery service for delivery to that person or, in the case of
facsimile transmission, when received.
SECTION 2.02. Notice of Meetings of Board of Directors.--Notice of a
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regular meeting of the board of directors need not be given. Notice of every
special meeting of
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the board of directors shall be given to each director by telephone or in
writing at least 24 hours (in the case of notice by telephone or facsimile
transmission) or 48 hours (in the case of notice by telegraph, courier service
or overnight delivery service express mail) or five days (in the case of notice
by first class mail) before the time at which the meeting is to be held. Every
such notice shall state the time and place of the meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
board need be specified in a notice of the meeting.
SECTION 2.03. Notice of Meetings of Stockholders.--Written notice of the
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place, date and hour of every meeting of the stockholders, whether annual or
special, shall be given to each stockholder of record entitled to vote at the
meeting not less than ten nor more than 60 days before the date of the meeting.
Every notice of a special meeting shall state the purpose or purposes thereof.
If the notice is sent by mail, it shall be deemed to have been given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at the address of the stockholder as it appears on the records of
the corporation.
SECTION 2.04. Waivers of Notice.
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(a) Written Waiver.--Whenever notice is required to be given under any
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provision of the GCL or of the certificate of incorporation or these bylaws, a
written waiver, signed by the person or persons entitled to the notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice of such meeting.
(b) Waiver by Attendance.--Attendance of a person at a meeting, either in
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person or by proxy, shall constitute a waiver of notice of such meeting, except
where a person attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened.
SECTION 2.05. Exception to Requirements of Notice.
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(a) General Rule.--Whenever notice is required to be given, under any
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provision of the GCL or of the certificate of incorporation or these bylaws, to
any person with whom communication is unlawful, the giving of such notice to
such person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given.
(b) Stockholders Without Forwarding Addresses.--Whenever notice is
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required to be given, under any provision of the GCL or the certificate of
incorporation or these bylaws, to any stockholder to whom (i) notice of two
consecutive annual meetings, and all notices of meetings or of the taking of
action by written consent without a meeting to such
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person during the period between such two consecutive annual meetings, or (ii)
all, and at least two, payments (if sent by first class mail) of dividends or
interest on securities during a 12 month period, have been mailed addressed to
such person at his address as shown on the records of the corporation and have
been returned undeliverable, the giving of such notice to such person shall not
be required. Any action or meeting which shall be taken or held without notice
to such person shall have the same force and effect as if such notice setting
forth the person's then current address, the requirement that notice be given to
such person shall be reinstated.
ARTICLE III
Meetings of Stockholders
SECTION 3.01. Place of Meeting.--All meetings of the stockholders of the
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corporation shall be held at the registered office of the corporation, or at
such other place within or without the State of Delaware as shall be designated
by the board of directors in the notice of such meeting.
SECTION 3.02. Annual Meeting.--The board of directors may fix and
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designate the date and time of the annual meeting of the stockholders, but if no
such date and time is fixed and designated by the board, the meeting for any
calendar year commencing in 1997 shall be held on the first Tuesday in May in
such year, if not a legal holiday under the laws of Delaware, and, if a legal
holiday, then on the next succeeding business day, not a Saturday, at 10:00
o'clock A.M., and at said meeting the stockholders then entitled to vote shall
elect directors and shall transact such other business as may properly be
brought before the meeting.
SECTION 3.03. Special Meetings.--Special meetings of the stockholders of
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the corporation may be called at any time by the chairman of the board, a
majority of the board of directors or the president. At any time, upon the
written request of any person or persons who have duly called a special meeting,
which written request shall state the purpose or purposes of the meeting, it
shall be the duty of the secretary to fix the date of the meeting which shall be
held at such date and time as the secretary may fix, not less than ten nor more
than 60 days after the receipt of the request, and to give due notice thereof.
If the secretary shall neglect or refuse to fix the time and date of such
meeting and give notice thereof, the person or persons calling the meeting may
do so.
SECTION 3.04. Quorum, Manner of Acting and Adjournment.
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(a) Quorum.--The holders of a majority of the shares entitled to vote,
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present in person or represented by proxy, shall constitute a quorum at all
meetings of the
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stockholders except as otherwise provided by the GCL, by the certificate of
incorporation or by these bylaws. If a quorum is not 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 is present or represented. At any such adjourned meeting
at which a quorum is present or represented, the corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the meeting.
(b) Manner of Acting.--Directors shall be elected by a plurality of the
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votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. In all matters other than the
election of directors, the affirmative vote of the majority of shares present
in person or represented by proxy at the meeting and entitled to vote thereon
shall be the act of the stockholders, unless the question is one upon which, by
express provision of the applicable statute, the certificate of incorporation or
these bylaws, a different vote is required, in which case such express provision
shall govern and control the decision of the question. The stockholders present
in person or by proxy at a duly organized meeting can continue to do business
until adjournment, notwithstanding withdrawal of enough stockholders to leave
less than a quorum.
(c) Stockholder Proposals.--Nominations by stockholders of persons for
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election to the board of directors of the corporation may be made at an annual
meeting in compliance with Section 4.14 hereof. The proposal of other business
to be considered by the stockholders at an annual meeting of stockholders may be
made (i) pursuant to the corporation's notice of meeting, (ii) by or at the
direction of the board of directors, or (iii) by any stockholder of the
corporation pursuant to timely notice in writing to the secretary of the
corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the corporation not
less than 60 days prior to the meeting; provided, however, that in the event
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that less than 75 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 15th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice to the secretary
shall set forth (a) as to the stockholder giving notice and the beneficial
owner, if any on whose behalf the proposal is made, (i) their name and record
address, and (ii) the class and number of shares of capital stock of the
corporation which are beneficially owned by each of them, and (b) a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder giving notice and the beneficial owner, if
any, on whose behalf the proposal is made. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting.
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Only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this section.
SECTION 3.05. Organization.--At every meeting of the stockholders, the
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chairman of the board, if there be one, [or in the case of a vacancy in the
office or absence of the chairman of the board, one of the following persons
present in the order stated: the vice chairman, if one has been appointed, the
president, the vice presidents in their order of rank or seniority, a chairman
designated by the board of directors or a chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast], shall act as chairman, and the
secretary, or, in the absence of the secretary, an assistant secretary, [or in
the absence of the secretary and the assistant secretaries, a person appointed
by the chairman] shall act as secretary.
SECTION 3.06. Voting.
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(a) General Rule.--Unless otherwise provided in the certificate of
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incorporation, each stockholder shall be entitled to one vote, in person or by
proxy, for each share of capital stock having voting power held by such
stockholder.
(b) Voting and Other Action by Proxy.
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(1) A stockholder may execute a writing authorizing another person
or persons to act for the stockholder as proxy. Such execution may be
accomplished by the stockholder or the authorized officer, director,
employee or agent of the stockholder 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. A stockholder may
authorize another person or persons to act for the stockholder as proxy by
transmitting or authorizing the transmission of a facsimile or other means
of electronic transmission to the person who will be the holder of the
proxy or to 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 if such facsimile or other means of
electronic transmission sets forth or is submitted with information from
which it can be determined that the facsimile or other electronic
transmission was authorized by the stockholder.
(2) No proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
(3) A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only so 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.
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SECTION 3.07. Consent of Stockholders in Lieu of Meeting.--Any action
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required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of all of the outstanding stock entitled
to vote with respect to such action at any annual or special meeting of
stockholders of the corporation and shall be delivered to the corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the earliest dated consent delivered in the
manner required in this section to the corporation, written consents signed by a
sufficient number of holders to take action are delivered to the corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded.
SECTION 3.08. Voting Lists.--The officer who has charge of the stock
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ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting. The list shall be arranged in alphabetical order, showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 3.09. Inspectors of Election.
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(a) Appointment.--All elections of directors shall be by written ballot,
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unless otherwise provided in the certificate of incorporation; the vote upon any
other matter need not be by ballot. In advance of any meeting of stockholders
the board of directors may appoint one or more inspectors, who need not be
stockholders, to act at the meeting and to make a written report thereof. The
board of directors may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the person's best ability.
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(b) Duties.--The inspectors shall ascertain the number of shares
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outstanding and the voting power of each, shall determine the shares represented
at the meeting and the validity of proxies and ballots, shall count all votes
and ballots, shall determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
shall certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) Polls. The date and time of the opening and the closing of the polls
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for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) Reconciliation of Proxies and Ballots.--In determining the validity
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and counting of proxies and ballots, the inspectors shall be limited to an
examination of the proxies, any envelopes submitted with those proxies, ballots
and the regular books and records of the corporation, except that the inspectors
may consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to subsection (b) shall specify the precise information
considered by them including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
ARTICLE IV
Board of Directors
SECTION 4.01. Powers.--All powers vested by law in the corporation shall
-------
be exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of, the board of directors.
SECTION 4.02. Number.--Subject to the provisions of the certificate of
-------
incorporation, the board of directors shall consist of such number of directors
as may be determined from time to time by resolution adopted by a vote of a
majority of the entire board of directors; provided, however, that so long as
the corporation has only one stockholder, the board of directors may consist of
as few as one director.
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SECTION 4.03. Term of Office. Directors of the corporation shall hold
---------------
office until the next annual meeting of stockholders and until their
successors shall have been elected and qualified, except in the event of death,
resignation or removal.
SECTION 4.04. Vacancies.
----------
(a) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and a director so chosen shall hold office until the next annual
election of directors and until a successor is duly elected and qualified. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute.
(b) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
(c) If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the entire board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorship, or
to replace the directors chosen by the directors then in office.
SECTION 4.05. Resignations.--Any director may resign at any time upon
-------------
written notice to the chairman, president or secretary of the corporation. The
resignation shall be effective upon receipt thereof by the corporation or at
such subsequent time as shall be specified in the notice of resignation and,
unless otherwise specified in the notice, the acceptance of the resignation
shall not be necessary to make it effective.
SECTION 4.06. Organization.--At every meeting of the board of directors,
------------
the chairman of the board, if there be one [or, in the case of a vacancy in the
office or absence of the chairman of the board, one of the following officers
present in the order stated: the vice chairman of the board, if there be one,
the president, the vice presidents in their order of rank and seniority, or a
chairman chosen by a majority of the directors present], shall preside, and the
secretary [or, in the absence of the secretary, an assistant secretary, or in
the absence of the secretary and the assistant secretaries, any person appointed
by the chairman of the meeting] shall act as secretary.
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SECTION 4.07. Place of Meeting.--Meetings of the board of directors shall
-----------------
be held at such place within or without the State of Delaware as the board of
directors may from time to time determine, or as may be designated in the notice
of the meeting.
SECTION 4.08. Regular Meetings.--Regular meetings of the board of
-----------------
directors shall be held without notice at such time and place as shall be
designated from time to time by resolution of the board of directors.
SECTION 4.09. Special Meetings.--Special meetings of the board of
-----------------
directors shall be held whenever called by the president or by two or more of
the directors.
SECTION 4.10. Conference Telephone Meetings.--One or more directors may
------------------------------
participate in a meeting of the board, or of a committee of the board, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this section shall constitute presence in person at such
meeting.
SECTION 4.11. Quorum, Manner of Acting and Adjournment.
-----------------------------------------
(a) General Rule.--At all meetings of the board, one-third of the total
-------------
number of directors shall constitute a quorum for the transaction of business.
The vote of a majority of the directors present at any meeting at which a quorum
is present shall be the act of the board of directors, except as may be
otherwise specifically provided by the GCL or by the certificate of
incorporation. If a quorum is not present at any meeting of the board 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 is
present.
(b) Unanimous Written Consent.--Unless otherwise restricted by the
-------------------------
certificate of incorporation, any action required or permitted to be taken at
any meeting of the board of directors may be taken without a meeting, if all
members of the board consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board.
SECTION 4.12. Executive and Other Committees.
-------------------------------
(a) Establishment.--The board of directors may, by resolution adopted by a
-------------
majority of the whole board, establish an Executive Committee and one or more
other committees, each committee to consist of one or more directors. The board
may designate one or more directors as alternate members of any committee. In
the absence or disqualification of a member of a committee and the alternate or
alternates, if any, designated for such member, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not they constitute a quorum, may unanimously appoint another director to act
at the meeting in the place of any such absent or disqualified member.
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(b) Powers.--The Executive Committee, if established, and any such other
-------
committee to the extent provided in the resolution establishing such committee
shall have and may exercise all the power 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; but no such committee shall have the power or authority in reference
to amending the certificate of incorporation (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) of GCL, fix the designation and any of the preferences or rights
of such shares relating to dividends, redemption, dissolution, any distribution
of assets of the corporation or the conversion into, or the exchange of such
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation or fix the number of shares
of any stock or authorize the increase or decrease of shares of any series),
adopting an agreement of merger or consolidation under Section 251 or 252 of the
GCL, recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the bylaws of the corporation. The Executive Committee shall have
the power or authority to declare a dividend, to authorize the issuance of stock
and to adopt a certificate of ownership and merger pursuant to Section 253 of
the GCL. Any such committee or committees established by the board of directors
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee so formed shall
keep regular minutes of its meetings and report the same to the board of
directors when required.
(c) Committee Procedures.--The term "board of directors" or "board," when
--------------------
used in any provision of these bylaws relating to the organization or procedures
of or the manner of taking action by the board of directors, shall be construed
to include and refer to the Executive Committee or other committee of the board,
as and if applicable.
SECTION 4.13. Compensation of Directors.--Unless otherwise restricted
--------------------------
by the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 4.14. Qualifications and Election of Directors.
-----------------------------------------
(a) All directors of the corporation shall be natural persons of full age,
but need not be residents of Delaware or stockholders of the corporation.
Except in the case of vacancies, directors shall be elected by the stockholders.
No person who has reached
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70 years of age may be elected or appointed to a term of office as a director of
the corporation. The term of office of any director elected or appointed in
conformity with the preceding sentence shall continue (to the extent provided in
the certificate of incorporation and these bylaws) after such director reaches
70 years of age.
(b) Nominations of persons for election to the board of directors of
the corporation may be made at a meeting of stockholders by or at the direction
of the board of directors.
(c) Nominations of persons for election to the board of directors of
the corporation may also be made by any stockholder of the corporation entitled
to vote for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 4.14 (c) and (d). Such nominations,
other than those made by or at the direction of the board, shall be made
pursuant to timely notice in writing to the secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 60 days prior
to the meeting; provided, however, that in the event that less than 75 days'
-------- -------
notice or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was
made. Such stockholder's notice to the secretary shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-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 and number of shares of capital stock of the corporation which are
beneficially owned by the person, and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to the rules and regulations promulgated under
the Securities Exchange Act of 1934 as amended; and (b) as to the stockholder
giving the notice (i) the name and record address of the stockholder and (ii)
the class and number of shares of capital stock of the corporation which are
beneficially owned by the stockholder. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to serve as a
director of the corporation. No person shall be eligible for election as a
director by the stockholders of the corporation unless nominated in accordance
with the procedures set forth herein.
(d) The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that any nomination made at the meeting was
not made in accordance with the foregoing procedures and, in such event, the
nomination shall be disregarded. Any decision by the chairman of the meeting
shall be conclusive and binding upon all stockholders of the corporation for any
purpose.
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ARTICLE V
Officers
SECTION 5.01. Number, Qualifications and Designation.--The officers of the
---------------------------------------
corporation shall be chosen by the board of directors and shall be a chief
executive officer, a president, one or more vice presidents, a secretary, a
treasurer, and such other officers as may be elected in accordance with the
provisions of Section 5.03 of this Article. Any number of offices may be held
by the same person. Officers may, but need not, be directors or stockholders of
the corporation. The board of directors may elect from among the members of the
board a chairman of the board and a vice chairman of the board who shall not be
officers of the corporation unless the board of directors determines by
resolution that the chairman and/or the vice chairman shall be officers of the
corporation. The chairman of the board or the president, as designated from
time to time by the board of directors, shall be the chief executive officer of
the corporation. If the chairman of the board is designated by the board of
directors as the chief executive officer of the corporation, then the chairman
of the board shall be an officer of the corporation without any separate
resolution of the board specifically designating the chairman as an officer.
SECTION 5.02. Election and Term of Office.--The officers of the
----------------------------
corporation, except those elected by delegated authority pursuant to Section
5.03 of this Article, shall be elected annually by the board of directors, and
each such officer shall hold office for a term of one year and until a successor
is elected and qualified, or until his or her earlier resignation or removal.
Any officer may resign at any time upon written notice to the corporation.
SECTION 5.03. Subordinate Officers, Committees and Agents.--The board of
--------------------------------------------
directors may from time to time elect such other officers and appoint such
committees, employees or other agents as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these bylaws, or as the board of directors may from
time to time determine. The board of directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe the authority
and duties of such subordinated officers, committees, employees and other
agents.
SECTION 5.04. The Chairman and Vice Chairman of the Board.--The chairman
--------------------------------------------
of the board, if there be one, or in the absence of the chairman, the vice
chairman of the board, if there be one, shall preside at all meetings of the
stockholders and of the board of directors, and shall perform such other duties
as may from time to time be assigned to such persons by the board of directors.
SECTION 5.05. The Chief Executive Officer.--The chief executive officer
----------------------------
shall have general supervision over the business and operations of the
corporation, subject, however, to the control of the board of directors. The
chief executive officer shall, in
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general, perform all duties incident to the office of chief executive officer,
and such other duties from time to time may be assigned by the board of
directors and, if the chairman of the board is the chief executive officer, the
chairman of the board.
SECTION 5.06. The President.--The president shall have general supervision
--------------
over the business and operations of the corporation, subject, however, to the
control of the chief executive officer and the board of directors. The president
shall, in general, perform all duties incident to the office of president, and
such other duties as from time to time may be assigned by the chief executive
officer and the board of directors and, if the chairman of the board is the
chief executive officer, the chairman of the board.
SECTION 5.07. The Chief Operating Officer.-The Chief Operating Officer
----------------------------
shall perform the duties of the president in the absence of the president and
such other duties as may from time to time be assigned to them by the board of
directors or by the president.
SECTION 5.08. The Secretary.--The secretary, or an assistant secretary,
--------------
shall attend all meetings of the stockholders and of the board of directors and
shall record the proceedings of the stockholders and of the directors and of
committees of the board in a book or books to be kept for that purpose; shall
see that notices are given and records and reports properly kept and filed by
the corporation as required by law; shall be the custodian of the seal of the
corporation and see that it is affixed to all documents required to be executed
on behalf of the corporation under its seal; and , in general, shall perform
all duties incident to the office of secretary, and such other duties as may
from time to time be assigned by the board of directors or the president.
SECTION 5.09. The Treasurer.--The treasurer, or an assistant treasurer,
--------------
shall have or provide for the custody of the funds or other property of the
corporation; shall collect and receive or provide for the collection and receipt
of moneys earned by or in any manner due to or received by the corporation;
shall deposit all funds in his or her custody as treasurer in such banks or
other places of deposit as the board of directors may from time to time
designate; whenever so required by the board of directors, shall render an
account showing his or her transaction as treasurer and the financial condition
of the corporation; and, in general, shall discharge such other duties as may
from time to time be assigned by the board of directors or the president.
SECTION 5.10 Officers' Bonds.--No officer of the corporation need provide
----------------
a bond to guarantee a faithful discharge of the officer's duties unless the
board of directors shall by resolution so require a bond in which event such
officer shall give the corporation a bond (which shall be renewed if and as
required) 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 office.
SECTION 5.11. Salaries.--The salaries of the officers and agents of the
---------
corporation elected by the board of directors shall be fixed from time to time
by the board of directors.
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SECTION 5.12. Voting of Stock.--Unless otherwise ordered by the board of
---------------
directors, each of the chairman of the board, the president, and the principal
accounting officer (as identified in the corporation's most recent Annual Report
on Form 10-K or other report or legislation statement in which such officer is
required to be identified filed with the United States Securities and Exchange
Commission) shall have full power and authority, on behalf of the corporation,
to attend and to act and vote, in person or by proxy, at any meeting of the
stockholders of any company in which the corporation may hold stock, and at any
such meeting shall possess and may exercise any and all of the rights and powers
incident to the ownership of such stock which, as the owner thereof, the
corporation might have possessed and exercised if present. The board of
directors, by resolution adopted from time to time, may confer like powers upon
any other person or persons.
SECTION 5.13. Endorsement of Securities for Transfer. Each of the
--------------------------------------
chairman of the board, the president, and the principal accounting officer shall
have the power to endorse and deliver for sale, assignment or transfer
certificates for stock, bonds or other securities, registered in the name of or
belonging to the corporation, whether issued by the corporation or by any other
corporation, government, state or municipality or agency thereof; and the board
of directors from time to time may confer like power upon any other officer,
agent or person by resolution adopted from time to time. Every such endorsement
shall be countersigned by the treasurer or an assistant treasurer.
ARTICLE VI
Certificates of Stock, Transfer, Etc.
SECTION 6.01. Form and Issuance.
-----------------
(a) Issuance.--The shares of the corporation shall be represented by
--------
certificates unless the board of directors shall by resolution provide that some
or all of any class or series of stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the corporation. Notwithstanding the adoption of
any resolution providing for uncertificated shares, 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, representing the number of shares
registered in certificate form.
(b) Form and Records.--Stock certificates of the corporation shall be in
----------------
such form as approved by the board of directors. The stock record books and the
blank stock certificate books shall be kept by the secretary or by any agency
designated by the board of directors for that purpose. The stock certificates
of the corporation shall be numbered
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and registered in the stock ledger and transfer books of the corporation as they
are issued.
(c) Signatures.--Any of or all the signatures upon the stock certificates
----------
of the corporation may be a facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been placed upon, any
share certificate shall have ceased to be such officer, transfer agent or
registrar, before the certificate is issued, it may be issued with the same
effect as if the signatory were such officer, transfer agent or registrar at the
date of its issue.
SECTION 6.02. Transfer.--Transfers of shares shall be made on the share
--------
register or transfer books of the corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made which would be
inconsistent with the provisions of Article 8, Title 6 of the Delaware Uniform
Commercial Code-Investment Securities.
SECTION 6.03. Lost, Stolen, Destroyed or Mutilated Certificates.--The
-------------------------------------------------
board of directors may direct a new certificate of stock or uncertificated
shares to 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 by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issuance of a new certificate
or certificates, the board of directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or the legal representative of
the owner, to give the corporation a bond sufficient to indemnify against any
claim that may be made against the corporation on account of the alleged loss,
theft or destruction of such certificate or the issuance of such new certificate
or uncertificated shares.
SECTION 6.04. Record Holder of Shares.--The corporation shall be entitled
-----------------------
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and 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 the laws of Delaware.
SECTION 6.05 Determination of Stockholders of Record.
---------------------------------------
(a) Meetings of Stockholders.--In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the board of directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors, and which record date shall
not be more than 60 nor less than ten days before the date of such meeting. If
no record date is fixed by the board of directors, the
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record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day immediately
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day immediately preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting.
(b) Consent of Stockholders.--In order that the corporation may
-----------------------
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the board of directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the board of directors. If no record date has been fixed by the board of
directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the board
of directors is required by the GCL, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the books in which proceedings of meetings of stockholders are
recorded. If no record date has been fixed by the board of directors and prior
action by the board of directors is required by the GCL, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
board of directors adopts the resolution taking such prior action.
(c) Dividends.--In order that the corporation may determine the
---------
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the board of directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than 60 days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the board of directors adopts the resolution relating
thereto.
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ARTICLE VII
Indemnification of Directors, Officers and
Other Authorized Representatives
SECTION 7.01. Indemnification of Authorized Representatives in Third
------------------------------------------------------
Party Proceedings.--The corporation shall indemnify any person who was or is an
- -----------------
authorized representative of the corporation, and who was or is a party, or is
threatened to be made a party to any third party proceeding, by reason of the
fact that such person was or is an authorized representative of the corporation,
against expenses, judgments,fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such third party
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal third party proceeding, had no
reasonable cause to believe such conduct was unlawful. The termination of any
third party proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, shall not of itself create a presumption
that the authorized representative did not act in good faith and in a manner
which such person reasonably believed to be in or not opposed to, the best
interests of the corporation, and, with respect to any criminal third party
proceeding, had reasonable cause to believe that such conduct was unlawful.
SECTION 7.02. Indemnification of Authorized Representatives in
------------------------------------------------
Corporate Proceedings.--The corporation shall indemnify any person who was or is
- ---------------------
an authorized representative of the corporation and who was or is a party or is
threatened to be made a party to any corporate proceeding, by reason of the fact
that such person was or is an authorized representative of the corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such corporate proceeding if such person acted
in good faith and in a manner reasonably believed to be in, or not opposed to,
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such corporate proceeding was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such authorized
representative is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 7.03. Mandatory Indemnification of Authorized Representatives.--
-------------------------------------------------------
To the extent that an authorized representative or other employee or agent of
the corporation has been successful on the merits or otherwise in defense of any
third party or corporate proceeding or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
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SECTION 7.04. Determination of Entitlement to Indemnification.--Any
-----------------------------------------------
indemnification under Section 7.01, 7.02 or 7.03 of this Article (unless ordered
by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the authorized representative
or other employee or agent is proper in the circumstances because such person
has either met the applicable standard of conduct set forth in Section 7.01 or
7.02 or has been successful on the merits or otherwise as set forth in Section
7.03 and that the amount requested has been actually and reasonably
incurred. Such determination shall be made:
(1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such third party or
corporate proceeding; or
(2) if such a quorum is not obtainable, or even if obtainable, a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion;
(3) by the stockholders.
SECTION 7.05. Advancing Expenses.--Expenses actually and
------------------
reasonably incurred in defending a third party or corporate proceeding shall be
paid on behalf of an authorized representative by the corporation in advance of
the final disposition of such third party or corporate proceeding upon receipt
of an undertaking by or on behalf of the authorized representative to repay such
amount if it shall ultimately be determined that the authorized representative
is not entitled to be indemnified by the corporation as authorized in this
Article. The financial ability of any authorized representative to make a
repayment contemplated by this Section 7.05 shall not be a prerequisite to the
making of an advance. Expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
SECTION 7.06. Definitions.--For purposes of this Article:
-----------
(1) "authorized representative" shall mean any and all
directors and officers of the corporation and any person designated as
an authorized representative by the board of directors of the
corporation (which may, but need not, include any person serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise);
(2) "corporation" shall include, in addition to the corporation,
the resulting corporation of any consolidation or merger, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or
was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee
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or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued;
(3) "corporate proceeding" shall mean any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor or investigative proceeding by the corporation;
(4) "criminal third party proceeding" shall include any action or
investigation which could or does lead to a criminal third party proceeding;
(5) "expenses" shall include attorneys' fees and disbursements;
(6) "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan;
(7) "not opposed to the best interests of the corporation" shall include
actions taken in good faith and in a manner the authorized representative
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan;
(8) "other enterprises" shall include employee benefit plans;
(9) "party" shall include the giving of testimony or similar involvement;
(10) "serving at the request of the corporation" shall include any service
as a director, officer or employee of the corporation which imposes duties on,
or involves services by, such director, officer or employee with respect to an
employee benefit plan, its participants, or beneficiaries; and
(11) "third party proceeding" shall mean any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative, other than an action by or in the right of the corporation.
SECTION 7.07. Insurance.--The corporation may purchase and maintain
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insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
the person and incurred by the person in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power
or the obligation to indemnify such person against such liability under the
provisions of this Article.
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SECTION 7.08. Scope of Article.--The indemnification of authorized
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representatives and advancement of expenses, as authorized by the preceding
provisions of this Article, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. The indemnification and advancement of
expenses provided by or granted pursuant to this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be an authorized representative and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 7.09. Reliance on Provisions.--Each person who shall act as an
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authorized representative of the corporation shall be deemed to be doing so in
reliance upon rights of indemnification provided by this Article.
ARTICLE VIII
General Provisions
SECTION 8.01. Corporate Seal.--The corporation shall have a corporate
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seal, which shall have inscribed thereon the name of the corporation, the year
of its organization and the words "Corporate Seal, Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
SECTION 8.02 Deposit.--All funds of the corporation shall be deposited
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from time to time to the credit of the corporation in such banks, trust
companies, or other depositories as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
SECTION 8.03. Corporate Records.
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(a) Examination by Stockholders.--Every stockholder shall, upon written
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demand under oath stating the purpose thereof, have a right to examine, in
person or by agent or attorney, during the corporation's usual hours for
business, for any proper purpose, the stock ledger, list of stockholders, books
or records of account, and records of the proceedings of the stockholders and
directors of the corporation, and to make copies or extracts therefrom. A
"proper purpose" shall mean a purpose reasonably related to such person's
interest as a stockholder. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent so to act on behalf of the stockholder.
The demand under oath shall be directed to the corporation at its registered
office in Delaware or at its principal place of
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business. Where the stockholder seeks to inspect the books and records of the
corporation, other than its stock ledger or list of stockholders, the
stockholder shall first establish (1) that the stockholder has complied with the
provisions of the Section 8.05 respecting the form and manner of making demand
for inspection of such documents; and (2) that the inspection sought is for a
proper purpose. Where the stockholder seeks to inspect the stock ledger or list
of stockholders of the corporation and has complied with the provisions of this
Section 8.05 respecting the form and manner of making demand for inspection of
such documents, the burden of proof shall be upon the corporation to establish
that the inspection sought is for an improper purpose.
(b) Examination by Directors.--Any director shall have the right to examine
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the corporation's stock ledger, a list of its stockholders and its other books
and records for a purpose reasonably related to the person's position as a
director.
SECTION 8.06. Amendment of Bylaws.--These bylaws may be altered, amended
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or repealed or new bylaws may be adopted either (1) by vote of the stockholders
at a duly organized annual or special meeting of stockholders, or (2) by vote of
a majority of the board of directors at any regular or special meeting of
directors if such power is conferred upon the board of directors by the
certificate of incorporation.
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