<PAGE>
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
<TABLE>
<S> <C>
Date of report (Date of earliest event reported) January 28, 1999 (January 20, 1999)
----------------------------------------------
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RENTAL SERVICE CORPORATION
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 000-21237 33-0569350
- -------------------------------------------------------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation) (Commission File Number) (IRS Employer Identification No.)
</TABLE>
6929 East Greenway Parkway, Suite 200, Scottsdale, Arizona 85254
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(602) 905-3300
- --------------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
NOT APPLICABLE
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events
Rental Service Corporation, a Delaware corporation ("RSC"), announced on
January 21, 1999, that it had entered into an Agreement and Plan of Merger,
dated as of January 20, 1999 (the "Merger Agreement"), between RSC and
NationsRent, Inc., a Delaware corporation ("NationsRent"), pursuant to which
NationsRent will merge (the "Merger") with and into RSC, with RSC as the
surviving corporation in the Merger. The name of the combined company after the
Merger will be "RSC NationsRent."
As more specifically set forth in the Merger Agreement, in the Merger, (1)
each issued and outstanding share of common stock, par value $.01 per share, of
NationsRent (the "NationsRent Common Stock") (other than shares of NationsRent
Common Stock owned by RSC or any direct or indirect subsidiary of RSC, shares of
NationsRent Common Stock owned or held in treasury by NationsRent or shares of
NationsRent owned by any direct or indirect subsidiary of NationsRent) shall be
converted into and become exchangeable for 0.355 of a share of common stock, par
value $.01 per share, of RSC (the "RSC Common Stock") and (2) each issued and
outstanding share of RSC Common Stock shall remain unchanged by the Merger and
shall remain issued and outstanding after the Merger.
The Merger is intended to qualify as a tax-free reorganization for federal
income tax purposes and is expected to be treated as a pooling of interests for
financial accounting purposes. RSC expects the Merger to generate significant
consolidation benefits and to be immediately accretive to per share earnings.
Cost savings in the first twelve months of combined operations are expected to
be at least $15 million.
The Merger is subject to the approval and adoption of the Merger Agreement
by the stockholders of RSC and the stockholders of NationsRent and approval of
an increase in the number of authorized shares of RSC Common Stock by the
stockholders of RSC. Stockholders of NationsRent who hold approximately 46% of
the issued and outstanding shares of NationsRent Common Stock have entered into
an agreement with RSC to vote their shares in favor of the approval and adoption
of the Merger Agreement.
The only conditions to the consummation of the Merger, other than the
aforementioned stockholder approvals, are the following: (1) the receipt of all
required regulatory consents; (2) the absence of any law, order or judgment of
any governmental authority that restrains, enjoins or otherwise prohibits the
Merger or that would have a material adverse effect on the combined companies
following the Merger; (3) the effectiveness of the registration statement
registering the shares of RSC Common Stock to be issued in the Merger; (4) the
authorization of the listing of such shares on the New York Stock Exchange; (5)
the receipt of all state securities and "blue sky" permits and approvals; (6)
the accuracy of the representations and warranties of each of RSC and
NationsRent set forth in the Merger Agreement in all material respects; (7) the
performance by each of RSC and NationsRent of their respective material
obligations
2
<PAGE>
under the Merger Agreement; (8) the receipt by each of RSC and NationsRent of
all material consents required from third parties; and (9) the receipt by each
of RSC and NationsRent of opinions of their respective legal counsel with
respect to the qualification of the Merger as a "reorganization" under the
Internal Revenue Code. The Merger is expected to close in the second quarter of
1999.
Pursuant to the Merger Agreement, the termination of the Merger Agreement
by either party under certain specified circumstances will require one party to
pay the other party $5 million in expenses and an additional $35 million as a
termination fee. RSC and NationsRent have also entered into reciprocal stock
option agreements. RSC has granted NationsRent an option to purchase 4,795,431
shares (subject to certain adjustments) of RSC Common Stock (19.9% of RSC's
issued and outstanding common stock on January 19, 1999) pursuant to a Stock
Option Agreement, dated as of January 20, 1999, between RSC and NationsRent.
NationsRent has granted RSC an option to purchase 11,067,986 shares (subject to
certain adjustments) of NationsRent Common Stock (19.9% of NationsRent's issued
and outstanding common stock on January 19, 1999) pursuant to a Stock Option
Agreement, dated as of January 20, 1999, between NationsRent and RSC. Each
option becomes exercisable upon the occurrence of any event that would result in
the holder of the option being entitled to a termination fee under the Merger
Agreement.
RSC has also amended its bylaws to: (i) change the provisions dealing with
nominations for election of directors or proposals of other business to be
considered at annual or special meetings of stockholders to, among other things,
extend the time periods for advance notice of directors' nominations and provide
that the only business to be conducted at a special meeting of stockholders will
be the business brought before the meeting pursuant to RSC's notice of the
meeting; (ii) change the provisions relating to stockholder action without a
meeting by written consent to, among other things, provide for fixing record
dates for such consents; and (iii) make certain other changes.
This Report contains certain forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. These statements are based
on current plans and expectations of RSC and NationsRent with respect to a
combined RSC NationsRent and involve risks and uncertainties that could cause
actual future activities and results of operations to be materially different
from those set forth in the forward-looking statements. Important factors that
could cause actual results to differ include, among others, risks associated
with the absence of a combined operating history, the companies' acquisition
strategy, the integration of acquisitions, the availability of additional
capital, variations in stock prices and interest rates, competition and
fluctuations in quarterly operating results and other risks and uncertainties
described in the companies' filings with the Securities and Exchange Commission.
3
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Businesses Acquired
None
(b) Pro Forma Financial Information
None
(c) Exhibits
Exhibit Number Description
-------------- ----------------------------------------------
3.1 Form of Amended and Restated Bylaws of Rental
Service Corporation.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RENTAL SERVICE CORPORATION
--------------------------
(Registrant)
Date: January 28, 1999 By: /s/ Robert M. Wilson
------------------------------------
Robert M. Wilson
Executive Vice President and
Chief Financial Officer
5
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -------------------------------------------------------------
3.1 Form of Amended and Restated Bylaws of Rental Service
Corporation.
<PAGE>
Exhibit 3.1
AMENDED AND RESTATED
BYLAWS
of
RENTAL SERVICE CORPORATION
<PAGE>
TABLE OF CONTENTS
AMENDED AND RESTATED
BYLAWS
of
RENTAL SERVICE CORPORATION
a Delaware Corporation
<TABLE>
<CAPTION>
Page
----
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ARTICLE I - OFFICES.................................................... 1
Section 1.01 REGISTERED OFFICE.................................. 1
Section 1.02 PRINCIPAL OFFICE................................... 1
Section 1.03 OTHER OFFICES...................................... 1
ARTICLE II - MEETING OF STOCKHOLDERS................................... 1
Section 2.01 ANNUAL MEETINGS.................................... 1
Section 2.02 SPECIAL MEETINGS................................... 1
Section 2.03 PLACE OF MEETINGS.................................. 2
Section 2.04 NOTICE OF MEETINGS................................. 2
Section 2.05 QUORUM............................................. 2
Section 2.06 VOTING............................................. 2
Section 2.07 LIST OF STOCKHOLDERS............................... 3
Section 2.08 INSPECTOR OF ELECTION.............................. 3
Section 2.09 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS..... 3
Section 2.10 STOCKHOLDER ACTION WITHOUT MEETINGS................ 6
Section 2.11 CONSENTS TO CORPORATE ACTION....................... 6
ARTICLE III - BOARD OF DIRECTORS....................................... 8
Section 3.01 GENERAL POWERS..................................... 8
Section 3.02 NUMBER............................................. 8
Section 3.03 ELECTION OF DIRECTORS.............................. 8
Section 3.04 INTENTIONALLY OMITTED.............................. 9
Section 3.05 RESIGNATIONS....................................... 9
Section 3.06 VACANCIES.......................................... 9
Section 3.07 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING..... 9
</TABLE>
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<PAGE>
<TABLE>
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Section 3.08 FIRST MEETING...................................... 10
Section 3.09 REGULAR MEETINGS................................... 10
Section 3.10 SPECIAL MEETINGS................................... 10
Section 3.11 QUORUM AND ACTION.................................. 10
Section 3.12 ACTION BY CONSENT.................................. 10
Section 3.13 COMPENSATION....................................... 10
Section 3.14 COMMITTEES......................................... 11
Section 3.15 OFFICERS OF THE BOARD.............................. 11
ARTICLE IV - OFFICERS.................................................. 11
Section 4.01 OFFICERS........................................... 11
Section 4.02 ELECTION........................................... 12
Section 4.03 SUBORDINATE OFFICERS............................... 12
Section 4.04 REMOVAL AND RESIGNATION............................ 12
Section 4.05 VACANCIES.......................................... 12
Section 4.06 CHIEF EXECUTIVE OFFICER............................ 12
Section 4.07 PRESIDENT.......................................... 12
Section 4.08 VICE PRESIDENT..................................... 13
Section 4.09 SECRETARY.......................................... 13
Section 4.10 TREASURER.......................................... 13
ARTICLE V - SHARES AND THEIR TRANSFER.................................. 14
Section 5.01 CERTIFICATES FOR STOCK............................. 14
Section 5.02 TRANSFER OF STOCK.................................. 14
Section 5.03 REGULATIONS........................................ 15
Section 5.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. 15
Section 5.05 RECORD DATE........................................ 15
Section 5.06 REPRESENTATION OF SHARES OF OTHER CORPORATIONS..... 15
Section 5.07 STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES. 15
ARTICLE VI - INDEMNIFICATION........................................... 16
Section 6.01 ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION........................................ 16
Section 6.02 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION...... 16
Section 6.03 DETERMINATION OF RIGHT OF INDEMNIFICATION.......... 17
Section 6.04 INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL
PARTY.............................................. 17
Section 6.05 ADVANCE OF EXPENSES................................ 17
Section 6.06 INSURANCE.......................................... 17
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
Section 6.07 CONSTITUENT CORPORATIONS........................... 17
Section 6.08 OTHER ENTERPRISES.................................. 18
Section 6.09 BROADEST LAWFUL INDEMNIFICATION.................... 18
Section 6.10 NON-EXCLUSIVITY.................................... 19
Section 6.11 SEVERABILITY....................................... 19
Section 6.12 AMENDMENTS......................................... 19
ARTICLE VII - MISCELLANEOUS............................................ 19
Section 7.01 SEAL............................................... 19
Section 7.02 WAIVER OF NOTICES.................................. 20
Section 7.03 LOANS AND GUARANTIES............................... 20
Section 7.04 GENDER............................................. 20
Section 7.05 AMENDMENTS......................................... 20
</TABLE>
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<PAGE>
AMENDED AND RESTATED
BYLAWS
of
RENTAL SERVICE CORPORATION
a Delaware Corporation
I
OFFICES
Section 1.01 REGISTERED OFFICE. The registered office of Rental
Service Corporation (hereinafter called the "Corporation") shall be at such
place in the State of Delaware as shall be designated by the Board of Directors
(hereinafter called the "Board").
Section 1.02 PRINCIPAL OFFICE. The principal office for the
transaction of the business of the Corporation shall be at such location, within
or without the State of Delaware, as shall be designated by the Board.
Section 1.03 OTHER OFFICES. The Corporation may also have an office
or offices at such other place or places either within or without the State of
Delaware, as the Board may from time to time determine or as the business of the
Corporation may require.
II
MEETINGS OF STOCKHOLDERS
Section 2.01 ANNUAL MEETINGS. Annual meetings of the stockholders of
the Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution.
Section 2.02 SPECIAL MEETINGS. Except as otherwise required by law
and subject to any provision fixed by, or pursuant to, the Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation"), special
meetings of the stockholders of the Corporation for any purpose or purposes may
be called at any time by the Board pursuant to a resolution approved by a
majority of the entire Board, or by the Chairman of the Board or the Chief
Executive Officer of the Corporation or by a committee of the Board (duly
authorized and empowered by the Board to call such meetings), but such special
meetings shall not be called by any other person or persons.
1
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Section 2.03 PLACE OF MEETINGS. All meetings of the stockholders
shall be held at such places, within or without the State of Delaware, as may
from time to time be designated by the person or persons calling the respective
meetings and specified in the respective notices or waivers of notice thereof.
In the absence of any such designation, stockholders' meetings shall be held at
the principal executive offices of the Corporation.
Section 2.04 NOTICE OF MEETINGS. Except as otherwise required by
law, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder of record entitled to vote at such
meeting by delivering a typewritten or printed notice thereof to him personally,
or by depositing such notice in the United States mail, in a postage prepaid
envelope, directed to him at his address furnished by him to the Secretary of
the Corporation for such purpose or, if he shall not have furnished to the
Secretary his address for such purpose, then at his address last known to the
Secretary, or by transmitting a notice thereof to him at such address by
telegraph, cable or wireless. Except as otherwise expressly required by law, no
publication of any notice of a meeting of the stockholders shall be required.
Every notice of a meeting of the stockholders shall state the place, date and
hour of the meeting, and, in the case of a special meeting, shall also state the
purpose or purposes for which the meeting is called. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken.
Section 2.05 QUORUM. The holders of record of a majority in voting
interest of the shares of stock of the Corporation entitled to be voted, present
in person or by proxy, shall constitute a quorum for the transaction of business
at any meeting of the stockholders of the Corporation or any adjournment
thereof. The stockholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. In the
absence of a quorum at any meeting or any adjournment thereof, a majority in
voting interest of the stockholders present in person or by proxy and entitled
to vote thereat or, in the absence therefrom of all the stockholders, a majority
of the voting stock represented in person or by proxy may adjourn such meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At any such adjourned meeting at
which a quorum is present or represented any business may be transacted which
might have been transacted at the meeting as originally called. If the
adjournment if for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote thereat.
Section 2.06 VOTING.
(a) At each meeting of the stockholders, each stockholder shall
be entitled to vote in person or by proxy each share or fractional share of the
stock of the Corporation which has voting rights on the matter in question,
unless the question is one upon which by express provision of Statute or the
Certificate of Incorporation or these Bylaws, a
2
<PAGE>
different vote is required, in which case such express provisions shall govern
and control the decision of such question.
Section 2.07 LIST OF STOCKHOLDERS. The Secretary of the Corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) 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 entire duration thereof, and may be inspected by any stockholder who
is present.
Section 2.08 INSPECTOR OF ELECTION. If at any meeting of the
stockholders a vote by written ballot shall be taken on any question, the
chairman of such meeting may appoint an inspector or inspectors of election to
act with respect to such vote. Each inspector so appointed shall first
subscribe an oath faithfully to execute the duties of an inspector at such
meeting with strict impartiality and according to the best of his ability. Such
inspectors shall decide upon the qualification of the voters and shall report
the number of shares represented at the meeting and entitled to vote on such
question, shall conduct and accept the votes, and, when the voting is completed,
shall ascertain and report the number of shares voted respectively for and
against the question. Reports of the inspectors shall be in writing and
subscribed and delivered by them to the Secretary of the Corporation.
Inspectors need not be stockholders of the Corporation, and any officer of the
Corporation may be an inspector on any question other than a vote for or against
a proposal in which he shall have a material interest.
Section 2.09 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) Annual Meetings of Stockholders.
-------------------------------
(1) Nominations of persons for election to the Board of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders only (a) pursuant to the
Corporation's notice of meeting (or any supplement thereto), (b) by or at the
direction of the Board or (c) by any stockholder of the Corporation who was a
stockholder of record of the Corporation at the time the notice provided for in
this Section 2.09 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 2.09.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 2.09, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action.
3
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To be timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on
the one hundred twentieth (120th) day prior to the first anniversary of the
preceding year's annual meeting (provided, however, that in the event that the
date of the annual meeting is more than thirty (30) days before or more than
seventy (70) days after such anniversary date, notice by the stockholder must be
so delivered not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual meeting
or the tenth (10th) day following the day on which public announcement of the
date of such meeting is first made by the Corporation). In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth: (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(and such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other business
that the stockholder proposes to bring before the meeting, 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 and the beneficial owner, if any, on whose behalf
the proposal is made, and in the event that such business includes a proposal to
amend the By-Laws of the Corporation, the language of the proposed amendment;
and (c) as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner, (ii) the class and number of shares of capital stock of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, (iii) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose such business
or nomination, and (iv) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends to (a)
deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise solicit proxies
from stockholders in support of such proposal or nomination. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Section 2.09 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation at an
annual meeting is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased Board at least one hundred (100) days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 2.09 shall also be considered timely, but only with
respect to nominees for any new positions created by such
4
<PAGE>
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the tenth
(10th) day following the day on which such public announcement is first made by
the Corporation.
(B) Special Meetings of Stockholders. 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. Nominations of
persons for election to the Board may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporation's
notice of meeting (1) by or at the direction of the Board or (2) provided that
the Board has determined that the directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time
the notice provided for in this Section 2.09 is delivered to the Secretary of
the Corporation, who shall be entitled to vote at the meeting and upon such
election and who complies with the notice procedures set forth in this Section
2.09. In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board, any such stockholder
entitled to vote in such election of directors may nominate a person or persons
(as the case may be) for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this Section 2.09 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth (120th) day prior to such special meeting
and not later than the close of business on the later of the ninetieth (90th)
day prior to such special meeting, or the tenth (10th) day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board to be elected at such meeting. In no
event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(C) General.
-------
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.09 shall be eligible to be elected at an
annual or special meeting of stockholders of the Corporation to serve as
directors and 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 2.09. Except as otherwise provided by law or the
Certificate of Incorporation, the chairman of the meeting shall have the power
and duty to (a) determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 2.09 and (b) if any
proposed nomination or business is not in compliance with this Section 2.09
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicits (or is part of a group which
solicits), or fails to so solicit (as the case may be), proxies in support of
such stockholder's proposal in compliance with such stockholder's representation
required by clause (c)(iv) of Section (A)(2) of this By-Law), to declare that
such defective nomination shall be disregarded or that such proposed business
shall not be transacted.
(2) For purposes of this Section 2.09, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or
5
<PAGE>
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.09, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.09. Nothing in this Section 2.09 shall be
deemed to affect any rights (a) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (b) of the holders of any series of Preferred Stock to elect
directors under specified circumstances."
Section 2.10 STOCKHOLDER ACTION WITHOUT MEETINGS. Subject to Section
2.11 hereof, unless otherwise provided in the Certificate of Incorporation, any
action required by the General Corporation Law of Delaware to be taken at any
annual or special meeting of the stockholders, or any action which may be taken
at any annual or special meeting of the stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
Section 2.11 CONSENTS TO CORPORATE ACTION.
(A) Record Date. The record date for determining stockholders
-----------
entitled to express consent to corporate action in writing without a meeting
shall be as fixed by the board of directors or as otherwise established under
this Section 2.11. Any person seeking to have the stockholders of the
Corporation authorize or take corporate action by written consent without a
meeting shall, by written notice addressed to the Secretary and delivered to the
Corporation, request that a record date be fixed for such purpose. The Board
may fix a record date for such purpose which shall be no more than ten (10) days
after the date upon which the resolution fixing the record date is adopted by
the Board and shall not precede the date such resolution is adopted. If the
Board fails within ten (10) days after the Corporation receives such notice to
fix a record date for such purpose, the record date shall be the day on which
the first written consent is delivered to the Corporation in the manner
described in Section 2.11(B)(2) below unless prior action by the Board is
required under the General Corporation Law of the State of Delaware, in which
event the record date shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
(B) Procedures.
(1) Every written consent purporting to take or authorizing the
taking of corporate action and/or related revocations (each such written consent
and related revocation is referred to in this Section 2.11 as a "Consent") shall
bear the date of signature of each
6
<PAGE>
stockholder who signs the Consent, and no Consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days of the
earliest dated Consent delivered in the manner required by this Section 2.11,
Consents signed by a sufficient number of stockholders to take such action are
so delivered to the Corporation. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous Consent shall be given to those
stockholders who have not consented in writing.
(2) A Consent shall be delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders of the Corporation are
recorded. Delivery to the Corporation's registered office shall be made by hand
or by certified or registered mail, return receipt requested.
(3) Consents shall be valid for a maximum of sixty (60) days
after the date of the earliest dated consent delivered to the Corporation in the
manner provided in Section 228(c) of the General Corporation Law of the State of
Delaware. Consents may be revoked by written notice (a) to the Corporation, (b)
to the stockholder or stockholders soliciting consents or soliciting revocations
in opposition to action by consent (the "Soliciting Stockholders"), or (c) to a
proxy solicitor or other agent designated by the Corporation or the Soliciting
Stockholders.
(4) Within ten (10) business days after receipt of the earliest
dated Consent delivered to the Corporation in the manner provided in Section
228(c) of the General Corporation Law of the State of Delaware or the
determination by the Board of the Corporation that the Corporation should seek
corporate action by written consent, as the case may be, the Secretary of the
Corporation shall engage nationally recognized independent inspectors of
elections for the purpose of performing a ministerial review of the validity of
the Consents and revocations. The cost of retaining inspectors of election
shall be borne by the Corporation. For the purpose of permitting the inspectors
to perform such review, no action by written consent without a meeting shall be
effective until such date as the independent inspectors certify to the
Corporation that the Consents delivered to the Corporation in accordance with
this Section 2.11 represent at least the minimum number of votes that would be
necessary to take the corporate action. Nothing contained in this Section
2.11(B)(4) shall be construed in any way to suggest or imply that the Board or
any stockholder shall not be entitled to contest the validity of any Consent or
revocation thereof, whether before or after such certification by the
independent inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation).
(5) Following appointment of the inspectors, Consents and
revocations shall be delivered to the inspectors upon receipt by the
Corporation, the Soliciting Stockholder or their proxy solicitors or other
designated agents. As soon as practicable following the earlier of (a) the
receipt by the inspectors, a copy of which shall be delivered to the
Corporation, of any written demand by the Soliciting Stockholders of the
Corporation, or (b) sixty (60) days after the date of the earliest dated Consent
delivered to the Corporation in the manner provided in Section 228(c) of the
General Corporation Law of the State of Delaware, the inspectors shall
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issue a preliminary report to the Corporation and the Soliciting Stockholders
stating the number of valid and unrevoked Consents received and whether, based
on the preliminary count, the requisite number of valid and unrevoked Consents
has been obtained to authorize or take the action specified in the Consents.
(6) Unless the Corporation and the Soliciting Stockholders shall
agree to a shorter or longer period, the Corporation and the Soliciting
Stockholders shall have forty-eight (48) hours to review the Consents and
revocations and to advise the inspectors and the opposing party in writing as to
whether they intend to challenge the preliminary report of the inspectors. If no
written notice of an intention to challenge the preliminary report is received
within forty-eight (48) hours after the inspectors' issuance of the preliminary
report, the inspectors shall issue to the Corporation and the Soliciting
Stockholders their final report containing the information from the inspectors'
determination with respect to whether the requisite number of valid and
unrevoked Consents was obtained to authorize and take the action specified in
the Consents. If the Corporation or the Soliciting Stockholders issue written
notice of an intention to challenge the inspectors' preliminary report within
forty-eight (48) hours after the issuance of that report, a challenge session
shall be scheduled by the inspectors as promptly as practicable. Following
completion of the challenge session, the inspectors shall as promptly as
practicable issue their final report to the Soliciting Stockholders and the
Corporation, which report shall contain the information included in the
preliminary report, plus any change in the vote total as a result of the
challenge and a certification of whether the requisite number of valid and
unrevoked Consents was obtained to authorize or take the action specified in the
Consents."
III
BOARD OF DIRECTORS
Section 3.01 GENERAL POWERS. The property, business and affairs of
the Corporation shall be managed by or under the direction of the Board, which
may exercise all of the powers of the Corporation, except such as are by the
Certificate of Incorporation, by these Bylaws or by law conferred upon or
reserved to the stockholders.
Section 3.02 NUMBER. The authorized number of directors of the
Corporation shall be not less than four (4) nor more than sixteen (16) until
changed by amendment of these Bylaws. The exact number of directors shall be
fixed, within the limits specified, by resolution duly adopted by the Board of
Directors. The initial number of directors shall be seven (7) until changed as
provided in this Section 3.02. Directors need not be stockholders of the
Corporation.
Section 3.03 ELECTION OF DIRECTORS. The directors shall be elected
by the stockholders of the Corporation, and at each election the persons
receiving the greatest number of votes, up to the number of directors then to be
elected, shall be the persons then elected. The directors shall be elected at
the annual meeting of stockholders, except as provided in Section 3.06 of this
Article, and each director elected shall hold office until his successor is
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elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board may
be removed, with or without cause, from the Board at any meeting of stockholders
by a majority of the stock represented and entitled to vote thereat.
SECTION 3.04 INTENTIONALLY OMITTED.
Section 3.05 RESIGNATIONS. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time is not specified, it shall take effect immediately upon
its receipt; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 3.06 VACANCIES. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors, or
any other cause, may be filled by vote of the majority of the remaining
directors, although less than a quorum, or by a sole remaining director. Each
director so chosen to fill a vacancy shall hold office until the next annual
election of directors and his successor shall have been elected and shall
qualify or until he shall resign or shall have been removed. If there are no
directors in office, then an election of directors may be held in the manner
prescribed by statute. No reduction of the authorized number of directors shall
have the effect of removing any director prior to the expiration of this term of
office. 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 whole 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 have the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Upon the resignation of one or more directors from the Board,
effective at future date, a majority of the directors then in office, including
those who have so resigned, shall have the power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided hereinabove in the filling of other vacancies.
Section 3.07 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The
Board may hold any of its meetings at such place or places within or without the
State of Delaware as the Board may from time to time by resolution designate or
as shall be designated by the person or persons calling the meeting or in the
notice or waiver of notice of any such meeting. Directors may participate in
any regular or special meeting of the Board, or any committee designated by the
Board, by means of conference telephone or similar communications equipment
pursuant to which all persons participating in the meeting can hear each other,
and such participation shall constitute presence in person at such meeting.
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Section 3.08 FIRST MEETING. The Board shall meet as soon as
practicable after each annual election of directors and notice of such first
meeting shall not be required.
Section 3.09 REGULAR MEETINGS. Regular meetings of the Board may be
held at such times as the Board shall from time to time by resolution determine.
If any day fixed for a meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day which is not a legal holiday. Except as
provided by law, notice of regular meetings need not be given.
Section 3.10 SPECIAL MEETINGS. Special meetings of the Board may be
called at any time by the Chief Executive Officer or Chairman of the Board on
forty-eight hours' notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the Secretary in like manner and
on like notice on the written request of two directors unless the Board consists
of only one director, in which case special meetings shall be called by the
Secretary in like manner or on like notice on the written request of the sole
director.
Section 3.11 QUORUM AND ACTION. Except as otherwise provided in
these Bylaws or by law, the presence of a majority of the authorized number of
directors shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of a majority of
the directors present. In the absence of a quorum, a majority of directors
present at any meeting may adjourn the same from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be given. If only
one director is authorized, such sole director shall constitute a quorum. The
directors shall act only as a Board, and the individual directors shall have no
power as such.
Section 3.12 ACTION BY CONSENT. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or such committee. Such
action by written consent shall have the same force and effect as the unanimous
vote of such directors.
Section 3.13 COMPENSATION. No stated salary need be paid to
directors, as such, for their services but, as fixed from time to time by
resolution of the Board, the directors may receive directors' fees, compensation
and reimbursement for expenses for attendance at directors' meetings, for
serving on committees and for discharging their duties; provided that nothing
herein contained shall be construed to 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.
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Section 3.14 COMMITTEES. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have any power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending these Bylaws; and unless the resolution of the Board expressly so
provides, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock or to adopt a certificate of
ownership and merger. Any such committee shall keep written minutes of its
meetings and report the same to the Board when required.
In the absence or disqualification of any member of any such
committee, the members thereof present at any meeting and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of such absent or
disqualified member.
A majority of the members, or replacements thereof, of any such
committee shall constitute a quorum for the transaction of business. Every act
or decision done or made by a majority of the members, or replacements thereof,
of any such committee shall be regarded as the act or decision of the entire
committee.
Section 3.15 OFFICERS OF THE BOARD. The Board shall have a Chairman
of the Board and may, at the discretion of the Board, have one or more Vice
Chairmen. The Chairman of the Board and the Vice Chairmen shall be appointed
from time to time by the Board and shall have such powers and duties as shall be
designated by the Board.
IV
OFFICERS
Section 4.01 OFFICERS. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer or a President, a Secretary and
a Treasurer. The Corporation may also have, at the discretion of the Board, one
or more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers and such other officers
as may be appointed in accordance with the provisions of Section 4.03 of these
Bylaws. One person may hold two or more offices, except that the Secretary may
not also hold the office of President. The salaries of all officers of the
Corporation shall be fixed by the Board.
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Section 4.02 ELECTION. The officers of the Corporation, except such
officers as may be appointed in accordance with the provisions of Section 4.03
or Section 4.05 of these Bylaws, shall be chosen annually by the Board, and each
shall hold his office until he shall resign or shall be removed or otherwise
disqualified to serve, or until his successor shall be elected and qualified.
Section 4.03 SUBORDINATE OFFICERS. The Board may appoint, or may
authorize the Chief Executive Officer to appoint, such other officers as the
business of the Corporation may require, each of whom shall have such authority
and perform such duties as are provided in these Bylaws or as the Board or the
President from time to time may specify, and shall hold office until he shall
resign or shall be removed or otherwise disqualified to serve.
Section 4.04 REMOVAL AND RESIGNATION. Any officer may be removed,
with or without cause, by a majority of the directors at the time in office, at
any regular or special meeting of the Board, or, except in case of an officer
chosen by the Board, by the Chief Executive Officer upon whom such power of
removal may be conferred by the Board. Any officer may resign at any time by
giving written notice to the Board, the Chairman of the Board, the President or
the Secretary of the Corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 4.05 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for the regular appointments to such office.
Section 4.06 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of
the Corporation shall, subject to the control of the Board, have general
supervision, direction and control of the business and affairs of the
Corporation. He shall preside at all meetings of stockholders and the Board.
He shall have the general powers and duties of management usually vested in the
chief executive officer of a corporation, and shall have such other powers and
duties with respect to the administration of the business and affairs of the
Corporation as may from time to time be assigned to him by the Board or as
prescribed by the Bylaws. In the absence or disability of the President, the
Chief Executive Officer, in addition to his assigned duties and powers, shall
perform all the duties of the President and when so acting shall have all the
powers and be subject to all restrictions upon the President.
Section 4.07 PRESIDENT. The President shall exercise and perform
such powers and duties with respect to the administration of the business and
affairs of the Corporation as may from time to time be assigned to him by the
Chief Executive Officer (unless the President is also the Chief Executive
Officer) or by the Board or as is prescribed by the Bylaws. In the absence or
disability of the Chief Executive Officer, the President shall perform all of
the duties of the Chief Executive Officer and when so acting shall have all the
powers and be subject to all the restrictions upon the Chief Executive Officer.
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Section 4.08 VICE PRESIDENT. The Vice President(s), if any, shall
exercise and perform such powers and duties with respect to the administration
of the business and affairs of the Corporation as from time to time may be
assigned to each of them by the President, by the Chief Executive Officer, by
the Board or as is prescribed by the Bylaws. In the absence or disability of
the President, the Vice Presidents, in order of their rank as fixed by the
Board, or if not ranked, the Vice President designated by the Board, shall
perform all of the duties of the President and when so acting shall have all of
the powers of and be subject to all the restrictions upon the President.
Section 4.09 SECRETARY. The Secretary shall keep, or cause to be
kept, a book of minutes at the principal office for the transaction of the
business of the Corporation, or such other place as the Board may order, of all
meetings of directors or stockholders, with the time and place of holding,
whether regular or special, and if special, how authorized and the notice
thereof given, the names of those present at directors' meetings, the number of
shares present or represented at stockholders' meetings and the proceedings
thereof.
The Secretary shall keep, or cause to be kept, at the principal office
for the transaction of the business of the Corporation or at the office of the
Corporation's transfer agent, a share register, or a duplicate share register,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the stockholders and of the Board required by these Bylaws or by law
to be given, and he shall keep the seal of the Corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the Board or these Bylaws. If for any reason the Secretary shall fail to
give notice of any special meeting of the Board called by one or more of the
persons identified in Section 3.10 of these Bylaws, or if he shall fail to give
notice of any special meeting of the stockholders called by one or more of the
persons identified in Section 2.02 of these Bylaws, then any such person or
persons may give notice of any such special meeting.
Section 4.10 TREASURER. The Treasurer shall keep and maintain or
cause to be kept and maintained, adequate and correct accounts of the properties
and business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of capital, shall be classified according to source and
shown in a separate account. The books of account at all reasonable times shall
be open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the Corporation with such depositories as may be designated
by the Board. He shall disburse the funds of the Corporation as may be ordered
by the Board, shall render to the President, to the Chief Executive Officer and
to the directors, whenever they request it, an account of all of his
transactions as Treasurer and of the financial condition of the Corporation,
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and shall have such other powers and perform such other duties as may be
prescribed by the Board or these Bylaws. If required by the Board, he shall
give the Corporation a bond, in such sum and with such surety or sureties as
shall be satisfactory to the Board, for the faithful performance of his duties
of his office and for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
V
SHARES AND THEIR TRANSFER
Section 5.01 CERTIFICATES FOR STOCK. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, in such
form as the Board shall prescribe, certifying the number and class of shares of
the stock of the Corporation owned by him. The certificates representing the
shares of such stock shall be numbered in the order in which they shall be
issued and shall be signed in the name of the Corporation by the Chairman of the
Board, the President or a Vice President and by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any or all of the
signatures on the certificates may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any such certificate shall thereafter have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may nevertheless be issued by the Corporation with the same effect
as though the person who signed such certificate, or whose facsimile signature
shall have been placed thereupon, were such officer, transfer agent or registrar
at the date of issue. A record shall be kept of the respective names of the
persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares represented by such certificates,
respectively, and the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be cancelled, and
no new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been cancelled, except in
cases provided for in Section 5.04 of these Bylaws.
Section 5.02 TRANSFER OF STOCK. Transfer of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 5.03 of these Bylaws, and upon
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon. The person in whose name shares of stock
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares shall be
made for collateral security, and not absolutely, such fact shall be stated
expressly in the entry of transfer if, when the certificate or certificates
shall be presented to the Corporation for transfer, both the transferor and
transferee request the Corporation to do so.
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Section 5.03 REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. The Board may appoint, or authorize any officer
or officers to appoint, one or more transfer clerks or one or more transfer
agents and one or more registrars, and may require all certificates for stock to
bear the signature or signatures of any of them.
Section 5.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In
any case of loss, theft, destruction, or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction,
or mutilation and upon the giving of a bond of indemnity to the Corporation in
such form and in such sums as the Board may direct; provided, however, that a
new certificate may be issued without requiring any bond when, in the judgment
of the Board, it is proper to do so.
Section 5.05 RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any other change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action. If, in any case involving the determination of
stockholders for any purpose other than notice of or voting at a meeting of
stockholders, the Board shall not fix such a record date, the record date for
determining stockholders for such purpose shall be the close of business on the
day on which the Board shall adopt the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of such meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
Section 5.06 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
President or any Vice President and the Secretary or any Assistant Secretary of
this Corporation are authorized to vote, represent and exercise on behalf of
this Corporation all rights incident to all shares of any other corporation or
corporations standing in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
so to do by proxy or power of attorney duly executed by said officers.
Section 5.07 STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES. If
the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, option or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be
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set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
VI
INDEMNIFICATION
Section 6.01 ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he 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 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. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
Section 6.02 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he 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 expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, 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 action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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Section 6.03 DETERMINATION OF RIGHT OF INDEMNIFICATION. Any
indemnification under Section 6.01 or 6.02 of these Bylaws (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 director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in Sections 6.01 and 6.02 of these Bylaws. Such
determination shall be made (i) by a majority vote of directors who were not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
Section 6.04 INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article VI, to the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 6.01 or 6.02 of these Bylaws, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 6.05 ADVANCE OF EXPENSES. Expenses (including attorneys'
fees) incurred by an officer or director in defending a civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or on
behalf of such director or officer, to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VI. Such expenses (including attorneys' fees)
incurred by other employees or agents may be so paid upon such terms and
conditions, if any, as the Board deems appropriate.
Section 6.06 INSURANCE. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article VI.
Section 6.07 CONSTITUENT CORPORATIONS. For the purposes of this
Article VII, references to "the Corporation" include in addition to the
resulting corporation, 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 and 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 or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article VI with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
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Section 6.08 OTHER ENTERPRISES. For the purposes of this Article VI,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to any employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VI.
Section 6.09 BROADEST LAWFUL INDEMNIFICATION. In addition to the
foregoing, the Corporation shall, to the broadest and maximum extent permitted
by Delaware law, as the same exists from time to time (but, in case of any
amendment to or change in Delaware law, only to the extent that such amendment
or change permits the Corporation to provide broader rights of indemnification
than is permitted to the Corporation prior to such amendment or change),
indemnify each person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that he
is or was a director or officer of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding. In addition, the Corporation
shall, to the broadest and maximum extent permitted by Delaware law, as the same
may exist from time to time (but, in case of any amendment to or change in
Delaware law, only to the extent that such amendment or change permits the
Corporation to provide broader rights of payment of expenses incurred in advance
of the final disposition of an action, suit or proceeding than is permitted to
the Corporation prior to such amendment or change), pay to such person any and
all expenses (including attorneys' fees) incurred in defending or settling any
such action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer, to repay such amount if it shall ultimately be determined
by a final judgment or other final adjudication that he is not entitled to be
indemnified by the Corporation as authorized in this Section 6.09. The first
sentence of this Section 6.09 to the contrary notwithstanding, the Corporation
shall not indemnify any such person with respect to any of the following
matters: (i) remuneration paid to such person if it shall be determined by a
final judgment or other final adjudication that such remuneration was in
violation of law; or (ii) any accounting of profits made from the purchase or
sale by such person of the Corporation's securities within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law; or (iii)
actions brought about or contributed to by the dishonesty of such person, if a
final judgment or other final adjudication adverse to such person establishes
that acts of active and deliberate dishonesty were committed or attempted by
such person with actual dishonest purpose and intent and were material to the
adjudication; or (iv) actions based on or attributable to such person having
gained any personal profit or advantage to which he was not entitled, in the
event that a final judgment or other final adjudication adverse to such person
establishes that such person in
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fact gained such personal profit or other advantage to which he was not
entitled; or (v) any matter in respect of which a final decision by a court with
competent jurisdiction shall determine that indemnification is unlawful;
provided, however, that the Corporation shall perform its obligations under the
second sentence of this Section 6.09 on behalf of such person until such time as
it shall be ultimately determined by a final judgment or other final
adjudication that he is not entitled to be indemnified by the Corporation as
authorized by the first sentence of this Section 6.09 by virtue of any of the
preceding clauses (i), (ii), (iii), (iv) or (v).
Section 6.10 NON-EXCLUSIVITY. The indemnification provided by this
Article VI shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
Section 6.11 SEVERABILITY. If any part of this Article VI shall be
found, in any action, suit or proceeding or appeal therefrom or in any other
circumstances or as to any particular officer, director, employee or agent to be
unenforceable, ineffective or invalid for any reason, the enforceability, effect
and validity of the remaining parts or of such parts in other circumstances
shall not be affected, except as otherwise required by applicable law.
Section 6.12 AMENDMENTS. The foregoing provisions of this Article VI
shall be deemed to constitute an agreement between the Corporation and each of
the persons entitled to indemnification hereunder, for as long as such
provisions remain in effect. Any amendment to the foregoing provisions of this
Article VII which limits or otherwise adversely affects the scope of
indemnification or rights of any such persons hereunder shall, as to such
persons, apply only to claims arising, or causes of action based on actions or
events occurring, after such amendment and delivery of notice of such amendment
is given to the person or persons whose rights hereunder are adversely affected,
such amendment shall have no effect on such rights of such persons hereunder.
Any person entitled to indemnification under the foregoing provisions of this
Article VI shall, as to any act or omission occurring prior to the date of
receipt of such notice, be entitled to indemnification to the same extent as had
such provisions continued as Bylaws of the Corporation without such amendment.
VII
MISCELLANEOUS
Section 7.01 SEAL. The Board shall provide a corporate seal, which
shall be in the form of a circle and shall bear the name of the Corporation and
words and figures showing that the Corporation was incorporated in the State of
Delaware and showing the year of incorporation.
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Section 7.02 WAIVER OF NOTICES. Whenever notice is required to be
given by these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or after
the time stated therein, and such waiver shall be deemed equivalent to notice.
Section 7.03 LOANS AND GUARANTIES. The Corporation may lend money
to, or guarantee any obligation of, and otherwise assist any officer or other
employee of the Corporation or of its subsidiaries, including any officer or
employee who is a director of the Corporation or of its subsidiaries, whenever,
in the judgment of the Board, such loan, guaranty or assistance may reasonably
be expected to benefit the Corporation. The loan, guaranty, or other assistance
may be with or without interest, and may be unsecured or secured in such manner
as the Board shall approve, including, without limitation, a pledge of shares of
stock of the Corporation.
Section 7.04 GENDER. All personal pronouns used in these Bylaws
shall include the other genders, whether used in the masculine, feminine or
neuter gender, and the singular shall include the plural, and vice versa,
whenever and as often as may be appropriate.
Section 7.05 AMENDMENTS. These Bylaws, or any of them, may be
rescinded, altered, amended or repealed, and new Bylaws may be made (i) by the
Board, by vote of a majority of the number of directors then in office as
directors, acting at any meeting of the Board or (ii) by the stockholders, by
the vote of sixty-six and two-thirds percent (66_%) of the outstanding shares of
voting stock of the Corporation, at an annual meeting of stockholders, without
previous notice, or at any special meeting of stockholders, provided that notice
of such proposed amendment, modification, repeal or adoption is given in the
notice of special meeting; provided, however, that Section 2.02 of these Bylaws
can only be amended if that Section as amended would not conflict with the
Corporation's Certificate of Incorporation. Any Bylaw made or altered by the
stockholders may be altered or repealed by the Board or may be altered or
repealed by the stockholders.
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