<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-Q
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended July 30, 1995.
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________________________ to
____________________________.
Commission file number: 0-6643
UNITOG COMPANY
(Exact name of registrant as specified in its charter)
Delaware 44-0529828
------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 W. 11th Street, Kansas City, MO 64105
---------------------------------------- ----------------------
(Address of principal executive offices) (Zip Code)
(816) 474-7000
----------------------------------------------------
(Registrant's telephone number, including area code)
Not applicable
--------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since
last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Sections 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the
past 90 days.
Yes __X__ No _____
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
As of July 30, 1995, the registrant had 9,272,954 shares of
common stock, par value $.01 per share, outstanding.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE NUMBER
<S> <C> <C>
ITEM 1. Financial Statements
(1) Condensed Consolidated Financial Statements (unaudited):
Condensed Consolidated Balance Sheets as of July 30, 1995
and January 29, 1995. 3
Condensed Consolidated Statements of Earnings for the Three
Months ended July 30, 1995 and July 31, 1994. 4
Condensed Consolidated Statements of Earnings for the Six
Months ended July 30, 1995 and July 31, 1994. 5
Condensed Consolidated Statements of Cash Flows for the Six
Months ended July 30, 1995 and July 31, 1994. 6
(2) Notes to Condensed Consolidated Financial Statements. 7
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations. 8
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings 10
ITEM 2. Changes in Securities 10
ITEM 4. Submission of Matters to a Vote of Security Holders 10
ITEM 6. Exhibits and Reports on Form 8-K 11
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
UNITOG COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
JULY 30, 1995 AND JANUARY 29, 1995
(UNAUDITED)
<TABLE>
<CAPTION>
July 30, 1995 January 29, 1995
ASSETS ------------- ----------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 530,988 $ 7,717,999
Accounts receivable, less allowance for doubtful
receivables of $427,200 and $425,000, respectively 18,685,284 18,079,047
Inventories (note 2) 13,963,846 13,630,072
Rental garments in service, net 27,829,774 24,478,470
Prepaid expenses 1,293,572 991,674
----------- -----------
Total current assets 62,303,464 64,897,262
----------- -----------
Property, plant and equipment, at cost 118,043,684 107,490,586
Less accumulated depreciation 51,027,720 47,974,078
----------- -----------
Net property, plant and equipment 67,015,964 59,516,508
----------- -----------
Other assets, net 21,504,961 16,529,871
Excess cost over net assets of businesses acquired, net 4,327,338 2,504,370
----------- -----------
$ 155,151,727 $ 143,448,011
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt $ 821,884 $ 827,214
Accounts payable 6,777,859 6,691,845
Accrued expenses 9,894,979 9,485,204
Income taxes payable 1,213,602 419,969
Deferred income taxes 8,357,000 7,142,000
----------- -----------
Total current liabilities 27,065,324 24,566,232
----------- -----------
Long-term debt, less current installments 39,134,646 34,837,880
Other liabilities, noncurrent 1,021,305 986,217
Deferred income taxes, noncurrent 7,741,011 7,625,011
Stockholders' equity:
Common stock of $.01 par value. Authorized
30,000,000 shares; issued and outstanding
9,272,954 shares (note 3) 92,730 92,721
Additional paid-in capital 39,086,870 39,070,262
Retained earnings 41,009,841 36,269,688
----------- -----------
Total stockholders' equity 80,189,441 75,432,671
----------- -----------
$ 155,151,727 $ 143,448,011
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
3
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UNITOG COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
THREE MONTHS ENDED JULY 30, 1995 AND JULY 31, 1994
(UNAUDITED)
<TABLE>
<CAPTION>
July 30, 1995 July 31, 1994
------------- -------------
<S> <C> <C>
Revenues:
Rental operations $ 37,822,136 $ 32,707,302
Direct sales 12,999,109 12,810,335
------------- -------------
Total revenues 50,821,245 45,517,637
------------- -------------
Operating costs and expenses:
Cost of rental operations 30,389,135 26,307,313
Cost of direct sales 10,805,721 10,485,342
Depreciation and amortization 2,658,426 2,332,187
General and administrative 2,063,113 2,176,212
------------- -------------
Total costs and expenses 45,916,395 41,301,054
------------- -------------
Operating income 4,904,850 4,216,583
Interest expense 691,606 646,425
Other expense, net 4,125 7,832
------------- -------------
Earnings before income taxes 4,209,119 3,562,326
Income taxes 1,642,000 1,390,000
------------- -------------
Net earnings $ 2,567,119 $ 2,172,326
============= =============
Net earnings per common share $ .27 $ .23
============= =============
Weighted average common and common equivalent
shares outstanding 9,365,733 9,332,703
============= =============
Dividends per common share (note 3) $ .05 $ .04
============= =============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
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UNITOG COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
SIX MONTHS ENDED JULY 30, 1995 AND JULY 31, 1994
(UNAUDITED)
<TABLE>
<CAPTION>
July 30, 1995 July 31, 1994
------------- -------------
<S> <C> <C>
Revenues:
Rental operations $ 73,792,950 $ 64,920,239
Direct sales 27,621,255 26,670,199
------------- -------------
Total revenues 101,414,205 91,590,438
------------- -------------
Operating costs and expenses:
Cost of rental operations 59,559,248 52,447,984
Cost of direct sales 22,723,754 21,750,851
Depreciation and amortization 5,183,117 4,732,080
General and administrative 4,086,474 4,187,589
------------- -------------
Total costs and expenses 91,552,593 83,118,504
------------- -------------
Operating income 9,861,612 8,471,934
Interest expense 1,322,169 1,338,956
Other expense, net 8,685 77,853
------------- -------------
Earnings before income taxes 8,530,758 7,055,125
Income taxes 3,327,000 2,752,000
------------- -------------
Net earnings $ 5,203,758 $ 4,303,125
============= =============
Net earnings per common share $ .56 $ .46
============= =============
Weighted average common and common equivalent
shares outstanding 9,350,880 9,326,580
============= =============
Dividends per common share (note 3) $ .05 $ .04
============= =============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
<PAGE> 6
UNITOG COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
SIX MONTHS ENDED JULY 30, 1995 AND JULY 31, 1994
(UNAUDITED)
<TABLE>
<CAPTION>
July 30, 1995 July 31, 1994
--------------- ---------------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 5,203,758 $ 4,303,125
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization 5,183,117 4,732,080
Provision for deferred income taxes 1,331,000 208,000
Disposal of equipment, net of gains and losses 39,793 192,447
Changes in assets and liabilities:
Accounts receivable (521,830) 685,662
Inventories (333,774) 628,983
Rental garments in service (1,281,304) (355,785)
Prepaid expenses (301,898) (226,878)
Other noncurrent assets (14,603) (61,709)
Accounts payable 86,014 (286,838)
Accrued expenses 409,775 579,201
Income taxes payable 793,633 (481,968)
Other noncurrent liabilities 35,088 422,780
------------- -------------
Net cash provided by operating activities 10,628,769 10,339,100
------------- -------------
Cash flows from investing activities:
Acquisition of rental operations (11,331,244) (67,712)
Purchase of property, plant and equipment (10,328,984) (4,185,691)
------------- -------------
Net cash used by investing activities (21,660,228) (4,253,403)
------------- -------------
Cash flows from financing activities:
Proceeds from exercise of stock options, net 16,617 --
Dividends paid (463,605) (370,884)
Increase (decrease) in long-term debt 4,291,436 (319,229)
------------- -------------
Net cash provided (used) by financing activities 3,844,448 (690,113)
------------- -------------
Net increase (decrease) in cash and cash equivalents (7,187,011) 5,395,584
Cash and cash equivalents at beginning of period 7,717,999 3,416,988
------------- -------------
Cash and cash equivalents at end of period $ 530,988 $ 8,812,572
============= =============
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest $ 1,410,789 $ 1,459,067
============= =============
Income taxes $ 1,201,271 $ 3,025,968
============= =============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
6
<PAGE> 7
UNITOG COMPANY AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SIX MONTHS ENDED JULY 30, 1995 AND JULY 31, 1994
Note 1
In the opinion of the Company, the accompanying unaudited condensed
consolidated financial statements reflect all adjustments (consisting of normal
recurring accruals) necessary to present fairly the financial position of the
Company as of July 30, 1995, and the results of its operations and its cash
flows for the six months ended July 30, 1995 and July 31, 1994 and the results
of its operations for the three months ended July 30, 1995 and July 31, 1994.
The results of operations for the six months ended July 30, 1995 are not
necessarily indicative of the results to be expected for the full year.
Note 2 Inventories
The following is a summary of inventories at July 30, 1995 and January 29, 1995:
<TABLE>
<CAPTION>
July 30, 1995 January 29, 1995
------------- ----------------
<S> <C> <C>
Raw materials $ 4,011,259 $ 3,570,498
Work in progress 2,253,072 2,351,766
Finished goods 11,444,530 11,255,800
----------- -----------
17,708,861 17,178,064
Less LIFO allowance (3,745,015) (3,547,992)
----------- -----------
$13,963,846 $13,630,072
=========== ===========
</TABLE>
Note 3 Cash Dividend and Shares Authorized
At the Annual Meeting of Stockholders of Unitog Company held on May 25, 1995
the stockholders voted to amend the Second Restated Certificate of
Incorporation of Unitog Company to increase the number of authorized shares of
common stock from 15 million shares to 30 million shares.
At its May 25, 1995 Board of Directors meeting the Board declared a $.05 per
share cash dividend payable on June 21, 1995 to stockholders of record on June
6, 1995. The $.05 per share dividend was a 25% increase over the prior year.
Note 4 Acquisitions
During fiscal 1996 the Company acquired rental routes and equipment for
approximately $11.3 million in cash and notes payable. The operating results
of these rental acquisitions have been included in the consolidated results of
the Company since their purchase with an insignificant effect on revenues and
net earnings.
7
<PAGE> 8
Note 5 Subsequent Event
On August 28, 1995, Unitog Company signed a letter of intent to acquire the
stock of Ace-Tex Corporation headquartered in Detroit, Michigan. Ace-Tex
operates two complementary businesses principally in Detroit and the
surrounding area and also has operations in Indiana, Ohio, New York and
Maryland. Ace-Tex is a supplier of uniform rental services and manufactures
and distributes wiping cloths and dirt reduction products and programs. Its
combined revenues for the year ended March 31, 1995 were over $52 million with
the uniform business contributing $27 million in rental revenue and the wiping
business generating $25 million in direct sales. Unitog Company expects to
complete the acquisition during the fourth quarter this year.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents were $531,000 at July 30, 1995 compared to $7.7
million at January 29, 1995. The funding of rental acquisitions created the
decrease. At July 30, 1995, the Company had borrowed $3.5 million under its
bank credit facility. The amount of borrowings available under the Company's
bank credit facility was $31.3 million at July 30, 1995. The Company's
capitalization ratio was 33% at July 30, 1995 compared to 32% at January 29,
1995.
Cash provided by operating activities was $10.6 million for the six months
ended July 30, 1995, about the same as last year. Working capital was $35.2
million at July 30, 1995 compared to $40.3 million at January 29, 1995. The
funding of rental acquisitions reduced cash and cash equivalents. Capital
expenditures were $10.3 million through July 30, 1995, 147% greater than last
year. The Company plans to open two new plants this fiscal year. A combined
manufacturing and distribution facility has been opened in Northeastern Alabama
and a rental production plant is under construction in Las Vegas, Nevada.
Capital expenditures for fiscal 1996 are expected to approximate $18 million.
During fiscal 1996 the Company purchased a cleanroom operation in Iowa and
industrial and linen rental routes in Iowa, Ohio, Dallas and Los Angeles. The
acquisitions are expected to add over $10.0 million in annual rental revenues.
The purchased industrial and linen rental routes will be serviced by existing
facilities.
In June 1995 the Company paid a $.05 per share cash dividend payable on June
21, 1995 to stockholders of record on June 6, 1995. The $.05 per share
dividend was 25% greater than the semi-annual dividend paid in the second
quarter of last year.
On August 28, 1995, Unitog Company signed a letter of intent to acquire the
stock of Ace-Tex Corporation headquartered in Detroit, Michigan. Ace-Tex
operates two complementary businesses principally in Detroit and the
surrounding area and also has operations in Indiana, Ohio, New York and
Maryland. Ace-Tex is a supplier of uniform rental services and manufactures
and distributes wiping cloths and dirt reduction products and programs. Its
combined revenues for the year ended March 31, 1995 were over $52 million with
the uniform business contributing $27 million in rental revenue and the wiping
business generating $25 million in direct sales. The purchase is expected to be
completed during the fourth quarter this year.
8
<PAGE> 9
Management believes that cash generated from operations, its bank credit
facility and available long-term financing will be sufficient to meet its cash
requirements for acquisitions and capital expenditures in the foreseeable
future.
RESULTS OF OPERATIONS
Second quarter fiscal 1996 compared to second quarter fiscal 1995
Revenues for the second quarter of fiscal 1996 were $50.8 million, an increase
of $5.3 million or 12% over the comparable period last year. Rental revenues
for the quarter were $37.8 million, an increase of $5.1 million or 16% over
last year. Revenues from acquisitions this year in Columbus, Ohio, Los
Angeles, Dallas and Northern Iowa generated the majority of this increase.
Direct sales for the second quarter of fiscal 1996 were $13.0 million, an
increase of $189,000 or 2% over the comparable period last year. The increase
in Direct sales was principally due to higher postal uniform sales.
Operating income for the second quarter of fiscal 1996 was $4.9 million an
increase of $688,000 or 16% over the comparable period last year. Higher
operating contribution from Rental operations created the improvement from last
year despite acquisition related assimilation costs. Costs incurred to close
our Atlanta distribution center and to start-up our new Northeastern Alabama
plant lowered operating income.
Net earnings for the second quarter of fiscal 1996 were $2.6 million, an
increase of $395,000 or 18% over the comparable period last year. Improved
operating contribution from Rental operations created the increase over last
year. Net earnings per common share for the second quarter of fiscal 1996
were $.27 per share, an increase of $.04 per share or 17% over the comparable
period last year.
Six months fiscal 1996 compared to six months fiscal 1995
Revenues for the six months ended July 30, 1995 were $101.4 million, an
increase of $9.8 million or 11% over the comparable period last year. Rental
revenues for the six months ended July 30, 1995 were $73.8 million. Acquired
revenues and internal growth created the $8.9 million or 14% increase in Rental
revenues over last year. Direct sales for the first six months of fiscal 1995
were $27.6 million, an increase of $1.0 million or 4% over the comparable
period last year. Higher postal uniform sales created this improvement.
Operating income for the six months ended July 30, 1995 was $9.9 million, an
increase of $1.4 million or 16% over last year. Improved operating
profitability from the Rental business segment created the increase in
operating income. Depreciation and amortization for the six months ended July
30, 1995 was $5.2 million, an increase of $451,000 or 10% over last year.
Higher amortization and depreciation related to acquisitions and capital
expenditures created this increase.
Net earnings for the six months ended July 30, 1995 were $5.2 million, an
increase of $900,000 or 21% higher than the comparable period last year.
Increased profitability from Rental operations created the earnings
improvement. Net earnings per share were $.56 for the six months ended July
30, 1995, an increase of $.10 per share or 22% over the comparable period last
year.
9
<PAGE> 10
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
Based on environmental investigations conducted at the Company's Minneapolis
rental plant, the Company plans to begin soil and groundwater remediation
there. The Company's estimate of the expense related to this site has been
accrued and charged to operating expense. Based on information currently
available, the Company does not believe that additional costs of investigation
and remediation at this site are material to the consolidated financial
statements of the Company.
See the discussion of certain environmental matters in Part I, Item 1 of the
Company's Annual Report on Form 10-K for the fiscal year ended January 29,
1995.
Item 2. Changes in Securities
At the Annual Meeting of Stockholders held on May 25, 1995 the stockholders
voted to amend the Second Restated Certificate of Incorporation to increase the
number of authorized shares of common stock from 15 million shares to 30
million shares.
The Board of Directors at its meeting on August 24, 1995 voted to amend the
Company's Bylaws to add procedures that must be used by stockholders when
bringing proposals to a vote at stockholders meetings and when nominating
candidates for election to the Board. The Board also changed the Bylaws to set
the date of the annual meeting of stockholders as the fourth Thursday in May.
With respect to matters sought to be brought to a vote by a stockholder at an
annual meeting, the amendment requires the stockholder to give notice at least
60 days prior to and not more than 90 days prior to the meeting. In the case
of a special stockholder meeting, notice must be given by the stockholder
within 10 days after the giving of notice for the stockholder meeting. A
stockholder desiring to nominate a candidate for election to the Board must
give notice of the nomination no less than 60 days prior to and not more than
90 days prior to the meeting, except if the date of the meeting is not publicly
known at least 70 days in advance, notice must be given by the stockholder
within 10 days after the giving of notice for the stockholder meeting. The
amendment also sets forth information that must be included in the notices.
Failure to follow the procedure precludes the stockholder from bringing the
matter before the meeting or making the nomination.
Item 4. Submission of Matters to a Vote of Security Holders
(a.) The Company's Annual Meeting of Stockholders was held on May
25, 1995 at the Kansas City Club, 1228 Baltimore, Kansas City,
Missouri.
(b.) The following directors were elected at the Annual Meeting:
G. Kenneth Baum
D. Patrick Curran
Robert F. Hagans
10
<PAGE> 11
The term of office of the following other directors continued after
the Annual Meeting:
John W. Caffry
Randolph K. Rolf
David B. Sharrock
William D. Thomas
(c.) At the Annual Meeting, a total of 8,044,063 shares voted for and
113,074 shares were withheld with respect to the election
of G. Kenneth Baum as a director of the Company. There were no broker
non-votes.
At the Annual Meeting, a total of 8,142,653 shares voted for and
14,484 shares were withheld with respect to the election of
D. Patrick Curran as a director of the Company. There were no
broker non-votes.
At the Annual Meeting, a total of 8,063,045 shares voted for and
94,092 shares were withheld with respect to the election of
Robert F. Hagans as a director of the Company. There were no
broker non-votes.
At the Annual Meeting, a total of 7,667,806 shares voted for, 473,345
voted against and 8,936 abstained from approval of the
amendment to the Certificate of Incorporation to increase the
authorized common stock to 30 million shares. There were 7,050 broker
non-votes.
At the Annual Meeting, a total of 7,205,147 shares voted for, 928,830
voted against and 16,110 shares abstained from approval of the Unitog
Company Outside Director Fee/Stock Program. There were 7,050 broker
non-votes.
At the Annual Meeting, a total of 8,149,027 shares voted for, 4845
voted against and 3,265 shares abstained from approval of KPMG Peat
Marwick, as independent auditors of the Company for fiscal 1996.
There were no broker non-votes.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
3(ii) Fourth Amended and Restated Bylaws.
27 Financial Data Schedule for the Quarter ended July 30, 1995.
(b) Reports on Form 8-K.
Unitog Company has not filed any reports on Form 8-K during the
quarter ended July 30, 1995.
11
<PAGE> 12
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 thereunto duly authorized.
Unitog Company
Dated: September 11, 1995 By: /S/ J. Craig Peterson
-----------------------------
J. Craig Peterson
Senior Vice-President of
Finance and Administration,
Chief Financial Officer
(Duly Authorized Officer)
12
<PAGE> 1
EXHIBIT 3(II)
UNITOG COMPANY
(a Delaware corporation)
FOURTH
AMENDED AND RESTATED
BYLAWS
<PAGE> 2
TABLE OF CONTENTS
Page
OFFICES AND RECORDS
1. Registered Office and Registered Agent 1
2. Corporate Offices 1
STOCKHOLDERS' MEETINGS
3. Place of Meetings 1
4. Annual Meetings 1
5. Special Meetings 1
6. Action by Consent in Lieu of Meeting 2
7. Notice of Meetings 2
8. Notice of Stockholder Business at Meetings 2
9. Nomination of Director Candidates 4
10. Quorum, Adjournments 4
11. Voting 5
12. Stockholders' Lists 5
13. Presiding Officer, Order of Business 5
DIRECTORS
14. Number and Tenure 6
15. Powers of the Board 7
16. Meetings of the Newly-Elected Board, Notice 7
17. Regular Meetings, Notice 7
18. Special Meetings, Notice 8
19. Action in Lieu of Meeting 8
20. Meetings by Telephone or Similar Communication
Equipment 8
21. Quorum, Adjournments 8
22. Waiver 9
23. Vacancies 9
24. Removal, Resignation 9
25. Compensation 10
COMMITTEES
26. Executive Committee 10
27. Powers 10
28. Procedure, Meetings 10
29. Quorum 10
30. Other Committees 10
31. Vacancies, Changes, Discharge 11
32. Compensation 11
33. Action by Consent in Lieu of Meeting 11
<PAGE> 3
34. Meetings by Telephone or Similar Communication
Equipment
11
NOTICES
35. Form, Delivery 11
36. Waiver 11
OFFICERS
37. Designations 12
38. Term of Office 12
39. Removal 12
40. Compensation 12
41. The Chairman of the Board 12
42. The Vice Chairman of the Board 12
43. The President 13
44. Vice Presidents 13
45. The Secretary and Assistant Secretaries 13
46. The Treasurer and Assistant Treasurers 14
INDEMNIFICATION
47. Indemnification of Directors, Officers,
Employees and Agents 15
STOCK CERTIFICATES
48. Form, Signatures 19
49. Lost, Stolen or Destroyed Certificates 19
50. Transfer of Shares, Transfer Agent, Registrar 19
51. Record Date 20
GENERAL PROVISIONS
52. Dividends 21
53. Reserves 21
54. Checks 21
55. Fiscal Year 21
56. Corporate Seal 21
57. Severability 21
AMENDMENTS
58. Amendments 22
<PAGE> 4
FOURTH
AMENDED AND RESTATED
BYLAWS
OF
UNITOG COMPANY
(A Delaware Corporation)
OFFICES AND RECORDS
1. Registered Office and Registered Agent. The registered office of
Unitog Company (the Corporation) shall be established and maintained at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, in
the County of New Castle, in the State of Delaware, and The Corporation Trust
Company shall be the registered agent of this Corporation in charge thereof.
2. Corporate Offices. The Corporation may also have such corporate
offices, anywhere within and without the State of Delaware as the Board of
Directors from time to time may appoint, or the business of the Corporation
may require.
STOCKHOLDERS' MEETINGS
3. Place of Meetings. All meetings of the stockholders shall be held
at the principal business office of the Corporation in Delaware, except such
meetings as the Board of Directors to the extent permissible by law expressly
determines shall be held elsewhere, in which case such meetings may be held,
upon notice thereof as hereinafter provided, at such other place or places,
within or without the State of Delaware, as said Board of Directors shall have
determined, and as shall be stated in such notice; and, unless specifically
prohibited by law, any meeting may be held at any place and time, and for any
purpose, if consented to in writing by all of the stockholders entitled to
vote thereat.
4. Annual Meetings. An annual meeting of stockholders shall be held
each year on the fourth Thursday in May at 10:00 a.m., Kansas City time, when
they shall elect a Board of Directors and transact such other business as may
properly be brought before the meeting.
5. Special Meetings. Special meetings of the stockholders may be held
for any purpose or purposes. They may be called by resolution of the
directors or by stockholders holding ten percent (10%) or more of the
outstanding shares of all classes of stock of the Corporation then entitled to
vote at an election of directors voting as one class.
The call and the notice of any such meeting shall be deemed to be
synonymous.
<PAGE> 5
6. Action by Consent in Lieu of Meeting. Any action required or
permitted by law or the Certificate of Incorporation to be taken at any
meeting of stockholders may be taken without a meeting, without prior notice
and without a vote, if a written consent setting forth the action so taken is
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 or
represented by proxy and voted, unless otherwise provided in the Certificate
of Incorporation. Written consents of stockholders shall bear the date of
each stockholder's signature, and no written consent will be effective unless
written consents, signed by a sufficient number of holders to take action, are
delivered to the Corporation within 60 days of the date of the earliest
consent delivered to the Corporation. Such written consent shall be filed
with the minutes of meetings of stockholders. 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
thereto.
7. Notice of Meetings.
(a) Written or printed notice of each meeting of the stockholders,
whether annual or special, stating the place, date and hour of the meeting,
and, in case of a special meeting, the purpose or purposes thereof, shall be
delivered or given to each stockholder entitled to vote thereat, not less than
10 days nor more than 60 days prior to the meeting, unless, as to a particular
matter, other or further notice is required by law, in which case such other
or further notice shall be given. In addition to such written notice,
published notice shall be given in the manner then required by law.
Any notice of a stockholders meeting sent by mail shall be
deemed to be delivered when deposited in the United States mail with postage
thereon prepaid addressed to the stockholder at his address as it appears on
the records of the Corporation.
(b) Whenever any notice is required to be given under the
provisions of these Bylaws, or the Certificate of Incorporation of the
Corporation or any law, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed the equivalent to the giving of such notice.
To the extent provided by law, attendance at any meeting shall
constitute a waiver of notice of such meeting, except when the person attends
a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business the meeting is not lawfully called
or convened.
8. Notice of Stockholder Business at Meetings. At any meeting of
stockholders, annual or special, only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been properly brought
before the meeting as hereinafter provided. For a proposal to be properly
brought before a meeting, each item of business must either (a) be specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors or the persons calling the meeting as
herein provided, (b) be otherwise properly brought before the meeting by or at
<PAGE> 6
the direction of the Board of Directors, or (c) be otherwise properly brought
before the meeting by a stockholder of record entitled to vote at such meeting
as hereinafter provided. For a proposal to be properly brought before a
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation, in the case of an annual
meeting, not less than sixty (60) days nor more than ninety (90) days prior to
the meeting of stockholders and, in the case of a special meeting, not later
than the close of business on the tenth (10th) day following the day on which
notice of the date of the meeting of stockholders was mailed; provided,
however, if a stockholder gives notice to the Secretary of the Corporation of a
proposal to be brought before an annual meeting of stockholders not less than
one hundred twenty (120) calendar days in advance of the date of the
Corporation's proxy statement released to stockholders in connection with the
previous year's annual meeting of stockholders in order to have such matter
included in the proxy statement and form of proxy for such meeting, such notice
shall be considered timely. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the meeting
(a) a brief description of the proposal desired to be brought before the
meeting and the reasons for conducting such business at the meeting, (b) the
name and address of record of the stockholder proposing the business and any
other stockholders known by such stockholder to be supporting the proposal, (c)
the class or classes of stock and number of shares of such class or classes of
stock which are beneficially owned by the proposing stockholder or stockholders
on the date of the stockholder notice, and (d) any material interest of the
proposing stockholder or stockholders in the proposal.
Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at a meeting of stockholders except in accordance
with the procedures set forth in this Section 8. The Board of Directors shall
reject any stockholder proposal submitted for consideration at a meeting of
stockholders which is not made in accordance with the terms of this Section 8
or which in their judgment is not a proper subject for stockholder action, in
accordance with provisions of applicable law. Alternatively, if the Board of
Directors fails to consider the validity of any such stockholder proposal, the
presiding officer of the meeting of stockholders shall reject any stockholder
proposal submitted for consideration at a meeting of stockholders which is not
made in accordance with Section 8 or which in his judgment is not a proper
subject for stockholder action and shall, if the facts warrant, determine and
declare to the persons attending the meeting that the business was not
properly brought before the meeting in accordance with the provisions of this
Section 8, and he shall further declare that any such business not properly
brought before such meeting shall not be transacted. The Board of Directors
or, as the case may be, the presiding officer of the meeting shall have
absolute authority to decide questions of compliance with the foregoing
procedures and the Board of Directors or, as the case may be, the presiding
officer's ruling thereon shall be final and conclusive. This provision shall
not prevent the consideration and approval or disapproval at the annual
meeting of stockholders of reports of officers, directors and committees of
the Board of Directors, but, in connection with such reports, no new business
shall be acted upon at such meeting unless stated, filed and received as
herein provided.
9. Nomination of Director Candidates. To be qualified for election as
a director, persons must be nominated in accordance with the procedures set
<PAGE> 7
forth in this Section 9. Nominations of candidates for election to the Board
of Directors of the Corporation may be made only by or at the direction of the
Board of Directors or by a stockholder of record entitled to vote at such
meeting of stockholders. All such nominations, except those made by or at the
direction of the Board of Directors, 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 by the Secretary not less
than sixty (60) days nor more than ninety (90) days prior to the meeting of
stockholders; provided, however, that in the event that less than seventy (70)
days' notice or prior public disclosure of the date of the meeting of
stockholders is given or made to stockholders, to be timely, notice of a
nomination delivered by such stockholder must be received by the Secretary not
later than the close of business on the tenth day following the day on which
notice of the date of the meeting of stockholders was mailed or such public
disclosure was made to the stockholders. Such stockholder's notice shall set
forth (a) the name, age, business address and residence address, and the
principal occupation or employment of any nominee proposed in such notice, (b)
the name and address of the stockholder or stockholders giving the notice as
the same appears in the Corporation's stock ledger, (c) the number of shares
of capital stock of the Corporation which are beneficially owned by any such
nominee and by such nominating stockholder or stockholders, and (d) such other
information concerning any such nominee as would be required, under the rules
of the Securities and Exchange Commission, in a proxy statement soliciting
proxies for the election of such nominee.
At the request of the Board of Directors, any person nominated for
election as a director shall furnish to the Secretary the information required
by this Section 9 to be set forth in a stockholder's notice of nomination
which pertains to the nominee. The Chairman of a meeting of stockholders
shall, if the facts warrant, determine and declare at such meeting of
stockholders that such nomination was not made in accordance with the
procedures prescribed by this Section 9, and he shall further declare that the
defective nomination shall be disregarded. The Chairman of a meeting of
stockholders shall have absolute authority to decide questions of compliance
with the foregoing procedures and his ruling thereon shall be final and
conclusive.
10. Quorum, Adjournments. Except as otherwise may be provided by law or
by the Certificate of Incorporation or the Bylaws, the holders of a majority
of the voting shares issued and outstanding, and entitled to vote thereat,
present in person or by proxy, shall be requisite for and shall constitute a
quorum, at all meetings of the stockholders, for the transaction of business.
The affirmative vote of the majority in amount of shares of such quorum
entitled to vote on the subject matter shall be the act of the stockholders
and valid as a corporate act, except in those specific instances in which a
larger vote is required by law or by the Certificate of Incorporation or the
Bylaws; provided, however, the election of directors shall be by a plurality
of the vote of shares present in person or represented by proxy at the meeting
and entitled to vote. If, however, such quorum should not be present at any
meeting, the stockholders present and entitled to vote shall have power
successively to adjourn the meeting without notice other than announcement at
the meeting of the time and place of the adjourned meeting. At such adjourned
meeting at which a quorum is present, any business may be transacted which
might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
<PAGE> 8
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.
11. Voting.
(a) Except as otherwise provided by law, the Certificate of
Incorporation, or, with respect to the preferred stock, a Certificate of
Designations adopted by the Board of Directors and filed with the State of
Delaware, each stockholder shall have one vote for each share of stock
entitled to vote under the provisions of the Certificate of Incorporation
which is registered in his name on the books of the Corporation.
(b) Each stockholder entitled to vote at a meeting of stockholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize any person or persons to act for him by proxy, but no
such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period.
(c) All elections shall be determined by a plurality vote, and,
except as otherwise provided by law or the Certificate of Incorporation, all
other matters shall be determined by a vote of a majority of the shares
present in person or represented by proxy and voting in such matters.
(d) No person shall be admitted to vote on any shares belonging or
hypothecated to the Corporation.
12. Stockholders Lists. A complete list of the stockholders entitled to
vote at each meeting of the stockholders, arranged in alphabetical order, with
the address of, and the number of voting shares registered in the name of each
stockholder, shall be prepared at least 10 days before every meeting of the
stockholders by the officer of the Corporation having charge of the stock
transfer books of the Corporation. Such list shall be open for examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of 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 whole time thereof, and may be
inspected by any stockholder who is present.
13. Presiding Officer Order of Business.
(a) Meetings of stockholders shall be presided over by the Chairman
of the Board (if any), or if he is not present (or, if there is none) by the
Vice Chairman of the Board, or if he is not present (or, if there is none) by
the President, or if he is not present by the Vice President, or if he is not
present by such person who may have been chosen by the Board of Directors, or
if none of such persons is present by a chairman to be chosen by the
stockholders owning a majority of the shares of stock of the Corporation issued
and outstanding and entitled to vote at the meeting and who are present in
person or represented by proxy. The Secretary of the Corporation, or, if he is
not present, the Assistant Secretary, or, if he is not present, such persons
may be chosen by the Board of Directors, shall act as secretary of stockholder
meetings or, if none of such persons is present, the stockholders
<PAGE> 9
owning a majority of the shares of stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person
or represented by proxy shall choose any person present to act as secretary of
the meeting.
(b) The following order of business shall be observed as far as
practicable and consistent with the purposes of the meeting, unless otherwise
ordered at the meeting:
1. Call of the meeting to order.
2. Presentation of proof of mailing of the notice of the
meeting, the call thereof.
3. Presentation of proxies.
4. Announcement that a quorum is present.
5. Reading and approval of the minutes of the previous
meeting.
6. Reports of officers, if any.
7. Election of directors, if the meeting is an annual meeting
or a meeting called for that purpose.
8. Consideration of the specific purpose or purposes for
which the meeting has been called, other than the
election of directors, if the meeting is a special
meeting.
9. Transaction of such other business as may properly come
before the meeting.
10. Adjournment.
DIRECTORS
14. Number and Tenure. The number of directors which shall constitute
the whole Board of Directors of the Corporation shall be no less than three (3)
or more than twelve (12). Within the above specified limit, the number of
directors shall be determined by resolution of the Board of Directors. The
size of the Board shall remain constant unless changed by the Board pursuant to
this Section. The Board of Directors shall be divided into three categories,
Class A, Class B and Class C, with each category as nearly equal in number as
possible. Directors of the first category (Class A) shall hold office for a
term expiring at the annual meeting of stockholders in 1990; directors of the
second category (Class B) shall hold office for a term expiring at the first
succeeding annual meeting of stockholders after 1990; and directors of the
third category (Class C) shall hold office for a term expiring at the second
succeeding annual meeting of stockholders after 1990 and, in each case, until
his successor is elected and qualified or until his earlier resignation or
removal. At each annual meeting of the stockholders of the Corporation, the
successors to the category of directors whose term shall then expire shall be
elected to hold office for terms expiring at the third
<PAGE> 10
succeeding annual meeting after such election.
There shall be no prerequisites or special qualifications for
election as director of the Corporation. Each director shall hold office for
the term for which he is elected and until his successor is elected and
qualified, or until his earlier resignation or removal. Any increase or
decrease in the authorized number of directors shall be apportioned by the
Board of Directors among the categories so as to make all categories as nearly
equal in number as possible. No decrease in the authorized number of
directors shall shorten the term of any incumbent director.
15. Powers of the Board. The property and business of the Corporation
shall be managed by the directors, acting as a Board. The Board shall have
and is vested with all and unlimited powers and authorities, except as may be
expressly limited by law, the Certificate of Incorporation or by these Bylaws,
to do or cause to be done any and all lawful things for and in behalf of the
Corporation, to exercise or cause to be exercised any or all of its powers,
privileges and franchises, and to seek the effectuation of its objects and
purposes.
16. Meetings of the Newly-Elected Board, Notice. the members of each
newly elected Board shall meet: (a) at such time and place, either within or
without the State of Delaware, as shall be suggested or provided for by
resolution of the stockholders at the annual meeting and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting; provided, a quorum shall be present; or (b) if not so
suggested or provided for by resolution of the stockholders or if a quorum
shall not be present, the members of such Board may meet at such time and
place as shall be consented to in writing by a majority of the newly-elected
directors; provided that written or printed notice of such meeting shall be
mailed, sent by telegram or delivered to each of the other directors in the
same manner as provided in Section 18 of these Bylaws with respect to the
giving of notice for special meetings of the Board except that it shall not be
necessary to state the purpose of the meeting in such notice; or (c)
regardless of whether or not the time and place of such meeting shall be
suggested or provided for by resolution of the stockholders at the annual
meeting, the members of such Board may meet at such time and place as shall be
consented to in writing by all of the newly-elected directors. Each director,
upon his election, shall qualify by accepting the office of director, and his
attendance at, or his written approval of the minutes of, any meeting of the
newly-elected directors shall constitute his acceptance of such office, or he
may execute such acceptance by a separate writing, which shall be placed in
the minute book.
17. Regular Meetings, Notice. Regular meetings of the Board may be held
without notice at such times and places either within or without the State of
Delaware as shall from time to time e fixed by resolution adopted by the Board
of Directors. Any business may be transacted at a regular meeting.
18. Special Meetings, Notice. Special meetings of the Board may be
called at any time by the Chairman of the Board, the President, any Vice
President or the Secretary. The place may be within or without the State of
Delaware as designated in the notice.
Written or printed notice of each special meeting of the Board,
<PAGE> 11
stating the place, day and hour of the meeting and the purpose or purposes
thereof, shall be mailed to each director at least three days before the day
on which the meeting is to be held, or shall be sent to him by telegram, or be
delivered, at least two days before the day on which the meeting is to be
held. If mailed, such notice shall be deemed to be delivered when deposited
in the United Stated mail with postage thereon addressed to the director at
his residence or usual place of business. If notice be given by telegraph,
such notice shall be deemed to be delivered when the same is delivered to the
telegraph company. The notice may be given by any officer having authority to
call the meeting or by any director.
Notice and call with respect to such meeting shall be deemed to be
synonymous.
19. Action in Lieu of Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws or by law, any action required to
be taken at a meeting of the Board of Directors or any other action which may
be taken at a meeting of the Board of Directors or of any committee thereof,
may be taken without a meeting if a consent in writing setting forth the
action so taken shall be signed by all members of the Board or committee
entitled to vote with respect to the subject matter thereof, and the consent
in writing is filed with the minutes of the proceedings of the Board of
Directors. Any such consent signed by all the directors shall have the same
effect as a unanimous vote and may be stated as such in any document
describing the action taken by the Board of Directors.
20. Meetings by Telephone or Similar Communication Equipment. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws or by
law, members of the Board of Directors of the Corporation, or any committee
designated by such Board, may participate in a meeting of such Board or
committee by means of conference telephone or similar communications
equipment, whereby all persons participating in the meeting can hear each
other, and participation in a meeting in such manner shall constitute presence
in person at such meeting.
21. Quorum, Adjournments. At all meetings of the Board of Directors, a
majority of the full Board of Directors shall, unless a greater number as to
any particular matter is required by statute, the Certificate of Incorporation
or these Bylaws, constitute a quorum for the transaction of business, and the
act of a majority of the directors present at any meeting at which there is a
quorum, except as may be otherwise specifically provided by statute, by the
Certificate of Incorporation, or by these Bylaws, shall be the act of the
Board of Directors.
If a quorum is not present at any meeting of the Board of Directors,
the directors present may adjourn the meeting successively until a quorum is
present, and no notice of adjournment shall be required other than
announcement at the meeting.
22. Waiver. Any notice provided or required to be given to the
directors may be waived in writing by any of them, whether before, at, or
after the time stated therein.
Attendance of a director at any meeting shall constitute a waiver of
notice of such meeting except where he attends for the express purpose, and so
<PAGE> 12
states at the opening of the meeting, of objecting to the transaction of any
business because the meeting is not lawfully called or convened.
23. Vacancies. Unless otherwise provided by the Certificate of
Incorporation these Bylaws or by law, vacancies and newly-created
directorships resulting from any increase in the number of authorized
directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. Any directors
so chosen to fill such vacancies or newly created directorships shall hold
office until the next election of directors of the category for which such
directors shall have been chosen and until their successors are duly elected
and qualified or until their earlier death, resignation or removal. If there
are no directors in office, any officer, stockholder or an executor,
administrator, trustee, guardian or similarly situated fiduciary of the
stockholder may call a special meeting of stockholders in accordance with the
provisions of the Certificate of Incorporation or these Bylaws, at which
meeting such vacancies shall be filled. If, at the time of filling any
vacancies 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 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, which election shall be governed by the
applicable provisions of the several corporation laws of Delaware.
24. Removal, Resignation.
(a) Except as otherwise provided by law or the Certificate of
Incorporation or these Bylaws, any director, directors or the entire Board of
Directors may be removed for cause by the holders of a majority of the
outstanding shares of all classes of stock of the Corporation then entitled to
vote at an election of directors voting as one class and may be removed
without cause by the holders of two-thirds (2/3) of the outstanding shares of
all classes of stock of the Corporation then entitled to vote at an election
of directors voting as one class. As used in these Bylaws, the term for cause
is hereby exclusively defined and limited to mean conviction of a felony by a
court of competent jurisdiction where such conviction is no longer subject to
direct appeal or adjudication by a court of competent jurisdiction of
liability for negligence or misconduct in the performance of the directors'
duty to the corporation in a matter of substantial importance to the
Corporation where such adjudication is no longer subject to direct appeal.
(b) Any director may resign at any time by giving written notice to
the Board of Directors, the Chairman of the Board, the President, or the
Secretary of the Corporation. Unless otherwise specified in such written
notice, a resignation shall take effect upon delivery thereof to the Board of
Directors or the designated officer. It shall not be necessary for a
resignation to be accepted before it becomes effective.
(c) Unless otherwise provided in the Certificate of Incorporation
or these Bylaws or by law, when one or more directors shall resign from the
Board, effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
<PAGE> 13
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 in this section in the filling of other vacancies.
25. Compensation. Directors shall be entitled to such compensation for
their services as directors and to such reimbursement for any reasonable
expenses incurred in attending directors meetings as may from time to time be
fixed by the Board of Directors. Any director may waive compensation for any
meeting. Any director receiving compensation under these provisions shall not
be barred from serving the Corporation in any other capacity and receiving
compensation and reimbursement for reasonable expenses for such other
services.
COMMITTEES
26. Executive Committee. The Board of Directors, by resolution adopted
by a majority of the whole Board, may appoint an Executive Committee
consisting of such members of the Board as designated, one of whom shall be
designated as Chairman of the Executive Committee. Each member of the
Executive Committee shall continue as a member thereof until the expiration of
his term as a director, or his earlier resignation, unless sooner removed as a
member or as a director.
27. Powers. The Executive Committee shall have and may exercise those
rights, powers and authority of the Board of Directors as may from time to
time be granted to it by the Board of Directors and may authorize the seal of
the Corporation to be affixed to all papers which may require it.
28. Procedure, Meetings. The Executive Committee shall fix its own
rules of procedure and shall meet at such times and at such place or places as
may be provided by such rules or as the members of the Executive Committee
shall provide. The Executive Committee shall keep regular minutes of its
meetings and deliver such minutes to the Board of Directors.
The Chairman of the Executive Committee, or, in his absence, a
member of the Executive Committee chosen by a majority of the members present,
shall preside at meetings of the Executive Committee, and another member
thereof chosen by the Executive Committee.
29. Quorum. A majority of the Executive Committee shall constitute a
quorum for the transaction of business, and the affirmative vote of a majority
of the members thereof shall be required for any action of the Executive
Committee; provided, however, that when an Executive Committee of one member
is authorized under the provisions of Section 26, such one member shall
constitute a quorum.
30. Other Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate such other committees in addition
to the executive committee, any such other committee to consist of one or more
directors of the Corporation. Such other committees, to the extent provided in
said resolution or resolutions, shall have and may exercise all of the
authority of the Board of Directors in the management of the Corporation.
Each such committee shall keep regular minutes of its proceedings
and the same shall be recorded in the minute book of the corporation. The
<PAGE> 14
Secretary or an Assistant Secretary of the Corporation may act as secretary
for a committee if the committee so requests.
31. Vacancies, Changes, Discharge. The Board of Directors shall have
the power at any time to fill vacancies in, to change the membership of, and
to discharge any committee.
32. Compensation. Members of any committee shall be entitled to such
compensation for their services as members of such committee and to such
reimbursement for any reasonable expenses incurred in attending committee
meetings as may from time to time be fixed by the Board of Directors. Any
member receiving compensation under these provisions shall not be barred from
serving the Corporation in any other capacity and from receiving compensation
and reimbursement of reasonable expenses for such other services.
33. Action by Consent in Lieu of Meeting. Any action required or
permitted to be taken at any meeting of any committee of the Board of
Directors may be taken without a meeting if a written consent to such action
is signed by all members of the committee and such written consent is filed
with the minutes of its proceedings.
34. Meetings by Telephone or Similar Communication Equipment. The
members of any committee designated by the Board of Directors may participate
in a meeting of such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in such
meeting can hear each other and participation in such meeting shall constitute
presence in person at such meeting.
NOTICES
35. Form, Delivery. Whenever, under the provisions of law, the
Certificate of Incorporation or these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice unless otherwise specifically provided, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the Corporation, with postage thereon prepaid.
Such notices shall be deemed to be given at the time they are deposited in the
United States mail. Notice to a director may also be given personally or by
telegram sent to his address as it appears on the records of the Corporation.
36. Waiver. Whenever any notice is required to be given under the
provisions of law, the Certificate of Incorporation or these Bylaws, a written
waiver thereof, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed to be
equivalent to such notice. In addition, any stockholder who attends a meeting
of stockholders in person, or is represented at such meeting by proxy, without
protesting at the commencement of the meeting the lack of notice thereof to him
or any director who attends a meeting of the Board of Directors without
protesting, at the commencement of the meeting, such lack of notice, shall be
conclusively deemed to have waived notice of such meeting. 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 unless so required by the Certificate
of Incorporation, the Bylaws or by law.
<PAGE> 15
OFFICERS
37. Designations. The officers of the Corporation shall be chosen by
the Board of Directors. The Board of Directors may choose a Chairman of the
Board, a Vice Chairman of the Board, a President, one or more Vice Presidents,
a Secretary, a Treasurer, one or more Assistant Secretaries and one or more
Assistant Treasurers.
The Board from time to time may also appoint such other officers and
agents for the Corporation as it shall deem necessary or advisable. All
appointed officers and agents shall exercise such powers and perform such
duties as shall be determined from time to time by the Board, or by an elected
officer empowered by the Board to make such determination.
38. Term of Office. The Board shall elect or appoint a Chairman of the
Board or President and Secretary at its first meeting after each annual
meeting of the stockholders. The Board then or from time to time, may also
elect or appoint one or more of the other prescribed officers as it shall deem
advisable, but need not elect or appoint any officers other than a Chairman of
the Board or President and a Secretary. All officers of the Corporation shall
hold their offices at the pleasure of the Board or for such terms as the Board
may specify, for the term for which he was elected and until his successor is
elected and shall qualify, or until he resigns or is removed by the Board,
whichever first occurs. An officer shall be deemed qualified when he enters
upon the duties of the office to which he has been elected or appointed and
furnishes any bond required by the Board; but the Board may also require of
such person his written acceptance and promise faithfully to discharge the
duties of such office.
39. Removal. Any officer or agent elected or appointed by the Board of
Directors, and any employee, may be removed or discharged by the Board, with
or without cause, at any time by the affirmative vote of a majority of the
directors then in office. Such removal shall not prejudice the contract
rights, if any, of the person so removed. Any vacancy occurring in any office
of the Corporation may be filled for the unexpired portion of the term of the
Board of Directors.
40. Compensation. The salaries of all officers of the Corporation shall
be fixed from time to time by the Board of Directors. No officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the Corporation.
41. The Chairman of the Board. The Chairman of the Board, if any,
subject to the direction of the Board of Directors, shall perform such
executive, supervisory and management functions and duties as may be assigned
to him from time to time by the Board of Directors, and shall co-extensively
have those powers and that authority of the President, as set forth in Section
41 hereof. He shall, if present, preside at all meetings of stockholders and
of the Board of Directors.
42. The Vice Chairman of the Board. The Vice Chairman of the Board, if
any, shall, in the absence of the Chairman of the Board or in the event of his
disability, perform the duties and exercise the powers of the Chairman of the
Board and shall generally assist the Chairman of the Board and perform such
other duties and have such other powers as may from time to time be prescribed
by the Board of Directors.
43. The President. The President shall be the chief executive officer
of the Corporation unless otherwise designated by the Board of Directors, and
<PAGE> 16
subject to the direction of the Board of Directors, shall have general charge
of the business, affairs, and property of the Corporation and general
supervision over its other duties incident to the office of President. As
provided for in Section 13 of these Bylaws, the President shall preside at all
meetings of the stockholders and directors in the absence of the Chairman of
the Board and the Vice-Chairman. The President shall have general and active
management of the business of the Corporation and shall carry into effect all
directions and resolutions of the Board.
He may execute all bonds, notes, debentures, mortgages, and other
contracts requiring a seal, under the seal of the Corporation, and may cause
the seal to be affixed thereto, and all other instruments for and in the name
of the Corporation.
He, when authorized so to do by the Board, may execute powers of
attorney from, for and in the name of the Corporation, to such proper person
or persons as he may deem fit, in order that thereby the business of the
Corporation may be furthered or action taken as may be deemed by him necessary
or advisable in furtherance of the interests of the Corporation.
Unless otherwise prescribed by the Board of Directors, the President
shall have full power and authority on behalf of the Corporation to attend,
act and vote at any meeting of security holders of other corporations in which
the Corporation may hold securities. At such meeting the President shall
possess and may exercise any and all rights and powers incident to the
ownership of such securities which the Corporation might have possessed and
exercised if it had been present. The Board of Directors may from time to
time confer like powers upon other person or persons.
The President, shall, unless the Board otherwise provides, be an ex
officio member of all standing committees. He shall have such general (and
concurrent) executive powers and duties of supervision and management as are
usually vested in the office of the President of a corporation.
He shall have such other or further duties and authority as may be
prescribed elsewhere in these Bylaws or from time to time by the Board of
Directors, and the Board may from time to time divide the responsibilities,
duties, and authority between them to such extent as it may deem advisable.
44. Vice Presidents. The Vice Presidents in the order of their
seniority, as determined by the Board, shall, in the absence, disability or
inability to act of the President, perform the duties and exercise the powers
of the President, and shall perform such other duties as the Board of Directors
shall from time to time prescribe.
45. The Secretary and Assistant Secretaries. The Secretary shall attend
all meetings of the Board and, except as otherwise provided for in Section 13
of these Bylaws, all meetings of the stockholders, and shall record or cause
to be recorded all votes taken and the minutes of all proceedings in a minute
book of the corporation to be kept for that purpose. He shall perform like
duties for the executive and other standing committees when requested by the
Board or such committee to do so.
His shall be the principal responsibility to give, or cause to be
given, notice of all meetings of the stockholders and of the Board of
Directors, but this shall not lessen the authority of others to give such
notice as is authorized elsewhere in these Bylaws.
He shall see that all books, records, lists and information, or
duplicates, required to be maintained at the registered or some office of the
<PAGE> 17
Corporation in Delaware, or elsewhere, are so maintained.
He shall keep in safe custody the seal of the Corporation, and when
duly authorized to do so, shall affix the same to any instrument requiring it,
and when so affixed, he shall attest the same by his signature.
He shall perform such other duties and have such other authority as
may be prescribed elsewhere in these Bylaws or from time to time by the Board
of Directors or the President, under whose direct supervision he shall be.
He shall have the general duties, powers and responsibilities of a
Secretary of a corporation.
The Assistant Secretaries, in the order of their seniority, in the
absence, disability or inability to act of the Secretary, shall perform the
duties and exercise the powers of the Secretary, and shall perform such other
duties as the Board may from time to time prescribe.
46. The Treasurer and Assistant Treasurers. The Treasurer shall have
responsibility for the safekeeping of the funds, and other valuable effects,
including securities, of the Corporation, and shall keep or cause to be kept
full and accurate accounts of receipts and disbursements in books belonging to
the Corporation. He shall keep, or cause to be kept, all other books of
account and accounting records of the Corporation, and shall deposit or cause
to be deposited all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board of Directors.
He shall disburse, or permit to be disbursed, the funds of the
Corporation as may be ordered, or authorized generally, by the Board and shall
render to the chief executive officers of the Corporation and the directors,
whenever they may require it, an account of all his transactions as Treasurer
and of those under his jurisdiction, and of the financial condition of the
corporation.
He shall perform such other duties and shall have such other
responsibility and authority as may be prescribed elsewhere in these Bylaws or
from time to time by the Board of Directors.
He shall have the general duties, powers and responsibility of a
Treasurer of a Corporation, and shall be the chief financial and accounting
officer of the Corporation.
If required by the Board, he shall give the corporation a bond in a
sum and with one or more sureties satisfactory to the Board for the faithful
performance of the duties of his office, and for the restoration to the
Corporation, in the 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 which belong to the Corporation.
The Assistant Treasurers in the order of their seniority shall, in
the absence, disability or inability to act of the Treasurer, perform the
duties and exercise the powers of the Treasurer, and shall perform such other
duties as the Board of Directors shall from time to time prescribe.
INDEMNIFICATION
47. Indemnification of Directors, Officers, Employees and Agents.
(a) Directors. The Corporation shall indemnify any person who was
<PAGE> 18
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, including an action by or in the right of the
Corporation, by reason of the fact that he is or was a director 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, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the defense or settlement of such action, suit or proceeding,
including attorneys fees, to the full extent permitted by Delaware General
Corporation Law, as amended, Section 145.
(b) Officers, Employees and Agents. The Corporation may, at the
discretion of the Board of Directors, 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, including an action by or in the right of the Corporation,
by reason of the fact that he is or was an 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, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the defense or settlement of such action, suit or proceeding,
including attorneys fees, to the full extent permitted by Delaware general
Corporation Law, as amended, Section 145.
(c) Expenses.
(i) The Corporation shall pay the director, or such person or
entity as the director may designate, on a continuing and
current basis, and in any event not later than 10 business
days following receipt by the Corporation of the director's
request for reimbursement, all expenses, including
attorneys fees, costs, settlements, fines and judgments
incurred by or levied upon the director in connection with
any action, suit or proceeding referred to in Section 47(a)
of these Bylaws.
(ii) To the extent that an 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 47(b) of these Bylaws or in defense of any
claim, issue or matter therein, he shall be indemnified
against expenses actually and reasonably incurred by such
person in connection therewith, including attorneys' fees.
(iii) Expenses incurred by a director or officer in defending a
civil or criminal action, suit, or proceeding may be paid
by the Corporation 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 is ultimately determined that the
director or officer is not entitled to be indemnified by
the Corporation as authorized in these Bylaws. Such
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.
(d) Board Authorization. Any indemnification of directors,
<PAGE> 19
officers, employees or agents pursuant to this Section 47, unless ordered by a
court, shall be made by the Corporation only as authorized in the specific
case upon a determination that such indemnification is proper in the
circumstances because such director, officer, employee or agent has met the
applicable standard of conduct set forth in Delaware General Corporation Law,
as amended, Section 145. Such determination shall be made by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to the action, suit, or proceeding, or 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, or by the
stockholders.
(e) Notification and Defense of Claim. Promptly after receipt by a
director, officer, employee or agent of notice of the commencement of any
action, suit or proceeding, the director, officer, employee or agent will, if a
claim in respect thereof is to be made against the Corporation, notify the
Corporation of the commencement thereof. The failure to promptly notify the
Corporation will not relieve the Corporation from any liability that it may
have to the director, officer, employee or agent hereunder, except to the
extent the Corporation is prejudiced in its defense of such claim as a result
of such failure. Unless otherwise requested by the Board of Directors, written
notification shall not be necessary if the director, officer, employee or agent
informs a majority of the Board of Directors of the commencement of any such
action, or, independent of such notification by the director, officer, employee
or agent, a majority of the Board of Directors has reason to believe such
action has been initiated or threatened. With respect to any such action, suit
or proceeding as to which the director, officer, employee or agent is notified,
or is deemed to have been notified, the Corporation of the commencement
thereof, the following shall apply:
(i) The Corporation will be entitled to participate therein at
its own expense;
(ii) Except as otherwise provided below, to the extent that it
may wish, the Corporation, jointly with any other
indemnifying party similarly notified, will be entitled
to assume the defense thereof with counsel reasonably
satisfactory to the director, officer, employee or agent.
After notice from the Corporation to the director,
officer, employee or agent of its election so to assume
the defense thereof, the Corporation will not be liable
to the director, officer, employee or agent for any legal
or other expenses subsequently incurred by the director,
officer, employee or agent in connection with the defense
thereof other than reasonable costs of investigation or
unless: (A) the employment of separate counsel by the
director, officer, employee or agent has been authorized
by the Corporation; (B) the director, officer, employee
or agent reasonably concludes that there may be a
conflict of interest between the Corporation and the
director, officer, employee or agent in the conduct of
the defense of such action and that such conflict may
lead to exposure for the director, officer, employee or
agent not otherwise indemnifiable and the director,
officer, employee or agent notifies the Corporation of
such conclusion and decision to employ separate counsel;
or (C) the Corporation fails to employ counsel to assume
the defense of such action. The Corporation shall not be
entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Corporation or
<PAGE> 20
as to which the director, officer, employee or agent
reasonably makes the conclusion provided for in (B)
above; and
(iii) The Corporation shall not be liable to indemnify the
director, officer, employee or agent for any amount paid
in settlement of any action or claim effected without its
written consent. The Corporation shall not settle any
action or claim in any manner which would impose any
penalty or limitation on the director, officer, employee
or agent without the written consent of the director,
officer, employee or agent. Neither the Corporation nor
the director, officer, employee or agent will
unreasonably withhold their consent to any proposed
settlement.
(f) Not exclusive. The indemnification and advancement of expenses
provided by this Section 47 shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under the Certificate of Incorporation, as amended from time to time,
or 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, and shall continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the heirs, executors
and administrators of such person.
(g) Further Indemnity. The Corporation shall have the power to
give any further indemnity, in addition to the indemnity authorized or
contemplated under this Section 47, to any person who is or was a director,
officer, employee or agent or to any person who 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;
provided, no such indemnity shall indemnify any person from or on account of
such person's conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct, or if it is
determined by a final judgment or other final adjudication by a court of
competent jurisdiction considering the question of indemnification that such
payment of indemnification is or would be in violation of applicable law. The
Corporation may enter into indemnification agreements with those directors and
officers of the Corporation whom the Board of Directors authorizes, by vote of
a majority of a quorum of disinterested directors. The form of such
indemnification agreement shall also be approved by a vote of a majority of a
quorum of disinterested directors.
(h) Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other 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 Section 47.
When, and if, the Corporation obtains such insurance coverage, the Corporation
shall not be required to maintain such insurance coverage in effect; provided,
however, that the Corporation notifies the covered person in writing within
five business days of the making of the decision to not renew or replace such
insurance policy. The maintenance of such insurance shall not diminish,
relieve or replace the Corporation's liability for indemnification under the
provisions hereof. A claim for reimbursement hereunder, shall not be denied
on the basis that such amount may or will be covered by such insurance policy,
<PAGE> 21
if such payments from the insurance company will not be made to the covered
person within 10 business days of the claim for reimbursement.
(i) Definitions.
(i) For the purpose of this Section 47, references to the
Corporation include all constituent corporations absorbed
in a consolidation or merger as well as the resulting or
surviving corporation, so that any person who is or was a
director or officer of such a constituent corporation or
is or was serving at the request of such constituent
corporation as a director or officer of another
corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the
provisions of this Section 47, with respect to the
resulting or surviving corporation as he would if he had
served the resulting or surviving corporation in the same
capacity.
(ii) For purposes of this Section 47, the following
definitions shall apply:
(A) The term other enterprise shall include employee
benefit plans.
(B) The term fines shall include any excise taxes
assessed on a person with respect to an employee
benefit plan.
(C) The term serving at the request of the Corporation
shall include any service as a director or officer
of the Corporation which imposes duties on, or
involves services by, such director or officer with
respect to an employee benefit plan, its
participants, or beneficiaries.
(D) 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.
(j) Rights to Indemnification. The rights granted or created
hereby shall be vested in each person entitled to indemnification hereunder as
a bargained-for, contractual condition of such person's acceptance of his
election or appointment as a director or officer of the corporation or serving
at the request of the corporation as a director or officer of any other
corporation or organization and while this Section 47 may be amended or
repealed, no such amendment or repeal shall release, terminate or adversely
affect the rights of such person under this Section 47 with respect to any act
taken or the failure to take any act by such person prior to such amendment or
repeal or with respect to any action, suit or proceeding with respect to such
act or failure to act filed after such amendment or repeal.
STOCK CERTIFICATES
48. Form, Signatures.
<PAGE> 22
(a) The certificates representing shares of stock of the Corporation
shall be numbered, shall be in such form as may be prescribed by the Board of
Directors in conformity with law, and shall be entered in the stock books of
the Corporation as they are issued, and such entries shall show the name and
address of the person, firm, partnership, corporation or association to whom
each certificate is issued. Each certificate shall have printed, typed or
written thereon the name of the person, firm, partnership, corporation or
association to whom it is issued, and number of shares represented thereby and
shall be signed by the Chairman of the Board, Vice Chairman of the Board,
President or a Vice President, and the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Corporation and sealed with the
seal of the Corporation, which seal may be facsimile, engraved or printed. If
the Corporation has a registrar, a transfer agent, or a transfer clerk who
actually signs such certificates, the signature of any of the other officers
above mentioned may be facsimile, engraved or printed. In case any such
officer who has signed or whose facsimile signature has been placed upon any
such certificate shall have ceased to be such officer before such certificate
is issued, such certificate may nevertheless be issued by the Corporation with
the same effect as if such officer were an officer at the date of its issue.
(b) All stock certificates representing shares of stock which are
subject to restrictions on transfer or to other restrictions may have
imprinted thereon such notation to such effect as may be determined by the
Board of Directors.
49. Lost, Stolen or Destroyed Certificates. The Board of Directors may
direct a new certificate of stock to be issued in place of any certificate
theretofore issued by the Corporation which is claimed to have been lost,
stolen or destroyed, upon the making of an affidavit of the fact by the person
claiming the certificate to be lost, stolen or destroyed. When authorizing
such issue of a new certificate, 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 his legal representative, to
advertise the same in such manner as it shall require or to give the
Corporation a bond in such sum, or other security in such form as it may
direct, as indemnity against any claim that may be made against the
Corporation with respect to the certificate claimed to have been lost, stolen
or destroyed.
50. Transfers of Shares, Transfer Agent, Registrar.
(a) Transfers of shares of stock shall be made on the stock record
or transfer books of the Corporation only by the person named in the stock
certificate, or by his attorney lawfully constituted in writing, and upon
surrender of the certificate therefor. The stock record book and other
transfer records shall be in the possession of the Secretary or of a transfer
agent or clerk for the Corporation. The Corporation, by resolution of the
Board, may from time to time appoint a transfer agent, and, if desired, a
registrar, under such arrangements and upon such terms and conditions as the
Board deems advisable; but until and unless the Board appoints some other
person, firm or Corporation as its transfer agent (and upon the revocation of
any such appointment, thereafter until a new appointment is similarly made)
the Secretary of the Corporation shall be the transfer agent or clerk of the
Corporation, without the necessity of any formal action of the Board, and the
Secretary shall perform all of the duties thereof.
(b) Upon surrender to the Corporation or any transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
<PAGE> 23
duty of the Corporation or its transfer agent to issue a new certificate to
the person entitled thereto, to cancel the old certificate and to record the
transaction upon its book.
(c) Except as otherwise provided by law, the Corporation shall be
entitled to recognize the exclusive right of a person who is registered on its
books as the owner of shares of its stock to receive dividends or other
distributions, to vote as such owner, and to hold liable for calls and
assessments a person who is registered on its books as the owner of shares of
its stock. The Corporation shall not be bound to recognize any equitable or
legal claim to or interest in such shares on the part of any other person.
(d) If a stockholder desires that notice and/or dividends shall be
sent to a name or address other than the name or address appearing on the
stock ledger maintained by the Corporation (or by the transfer agent or
registrar, if any), such stockholder shall have the duty to notify the
Corporation (or the transfer agent or registrar, if any) in writing, of such
desire. Such written notice shall specify the alternate name or address to be
used.
51. Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or 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 change, conversion or exchange of stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be less than 10 nor more than 60 days before the date of
such meeting, nor more than 60 days prior to any other action; provided,
however, any record date for determining stockholders entitled to consent to
corporate actions in writing without a meeting may not be more than 10 days
after the date upon which the resolution fixing the record date is adopted;
provided, further, any record date established by the Board of Directors may
not precede the date upon which the resolution fixing the record date is
adopted.
(b) If no record date is fixed:
(i) The 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 next preceding the day
on which notice is given or, if notice is waived, at the
close of business on the day next preceding the day on
which the meeting is held.
(ii) The record date for determining stockholders entitled to
express written consent to corporate action without a
meeting shall be: (A) if no prior action by the Board of
Directors is necessary, the first date on which a signed
written consent setting forth the action taken is
delivered to the Corporation; and (B) if prior action by
the Board of Directors is required, the close of business
on the day the Board of Directors adopts the resolution
taking the prior action.
(c) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
<PAGE> 24
date for the adjourned meeting.
GENERAL PROVISIONS
52. Dividends. Ordinary dividends upon the shares of the Corporation,
subject to the provisions of the Certificate of Incorporation, and of any
applicable law or statute, may be declared by the Board of Directors at any
regular or special meeting. Dividends may be paid in cash, in property, or in
shares of its stock, and to the extent and in the manner provided by law, out
of any available earned surplus or earnings of the Corporation.
If the dividend is to be paid in shares of the Corporation's
theretofore unissued capital stock, the Board of Directors shall, by
resolution, direct that there be transferred from surplus to the capital
account in respect of such shares, an amount which is not less than the par
value of the shares being declared as a dividend. No transfer from surplus to
capital shall be necessary if shares are being distributed by the Corporation
pursuant to a split-up or division of its stock, rather than as payment of a
dividend declared payable in stock of the Corporation.
Liquidating dividends or dividends representing a distribution of
paid-in surplus or a return of capital shall be made only when and in the
manner permitted by law.
53. Reserves. The Board of Directors shall have full power, subject to
the provisions of law and the Certificate of Incorporation, to determine
whether any, and if so, what part, of the funds legally available for the
payment of dividends shall be declared as dividends and paid to the
stockholders of the Corporation. The Board of Directors, in its sole
discretion, may fix a sum which may be set aside or reserved over and above
the paid in capital of the Corporation for working capital or as a reserve for
any proper purpose, and may from time to time increase, diminish or vary such
fund or funds.
54. Checks. All checks or instruments for the payment of money and all
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate. If no such designation is made, and unless and until the Board
otherwise provides, the Chairman of the Board or President and Secretary, or
the Chairman of the Board or President and Treasurer, shall have power to sign
all such instruments for, in behalf of and in the name of the Corporation,
which are executed or made in the ordinary course of the Corporation's
business.
55. Fiscal Year. The Board of Directors shall have the paramount power
to fix, and from time to time, to change the fiscal year of the Corporation.
56. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of incorporation and the words: Corporate
Seal Delaware. Said seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any manner reproduced.
57. Severability. Whenever possible, each provision of these Bylaws
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of these Bylaws shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective only to the
extent of such prohibition without invalidating the remainder of such
provision or the remaining provisions of these Bylaws.
<PAGE> 25
AMENDMENTS
58. Amendments. Except as otherwise provided herein, the Bylaws of the
Corporation may from time to time be repealed, amended or altered, or new
Bylaws may be adopted, in either of the following ways:
(a) By the affirmative vote of the holders of at lease sixty-six
and two-thirds percent of the outstanding shares of all classes of stock of
the Corporation entitled to vote in the election of directors voting as one
class at any annual or special meeting thereof; or
(b) By resolution adopted by a majority of the members of the Board
of Directors then in office; provided, however, that the power of the
directors to suspend, repeal, amend or otherwise alter the Bylaws or any
portion thereof may be denied as to any Bylaws or portion thereof enacted by
the stockholders pursuant to (a) above, if at the time of such enactment the
stockholders shall so expressly provide.
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