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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
U.S.A. Floral Products, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 52-2030697
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
3500 Whitehaven Parkway
Washington, D.C. 20007
(Address of Principal Executive Offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon securities and is to become effective
filing pursuant to General simultaneously with the effectiveness
Instruction A(c)(1) please check of a concurrent registration statement
the following box. [_] under the Securities Act of 1933
pursuant to General Instruction
A(c)(2) please check the following
box. [_]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
------------------- ------------------------------
- ----------------------------------- ------------------------------------
- ----------------------------------- ------------------------------------
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
(Title of Class)
- --------------------------------------------------------------------------------
(Title of Class)
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Item 1. Description of Securities to be Registered.
The information set forth under the caption "Description of Capital
Stock" on pages 72 and 73 of the registrant's Preliminary Prospectus dated
September 18, 1997 that forms a part of Amendment No. 1 to the registrant's
Registration Statement on Form S-1, File No. 333-33131, filed with the
Securities and Exchange Commission on September 18, 1997, is incorporated herein
by reference.
Item 2. Exhibits.
The following exhibits are filed as part of this registration
statement:
Exhibit Description
------- -----------
1.01 Specimen of Certificate of Common Stock, par value $.001 per
share.
2.01 Certificate of Incorporation of U.S.A. Floral Products,
Inc., as amended to date.
2.02 Amended and Restated Bylaws of U.S.A. Floral Products, Inc.
2
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
U.S.A. Floral Products, Inc.
Date: September 23, 1997 By: /s/ Robert J. Poirier
---------------------
Robert J. Poirier
Chairman of the Board, President
and Chief Executive Officer
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EXHIBIT INDEX
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
1.01 Specimen of Certificate of Common Stock, par value
per share $.001 per share. 5
2.01 Certificate of Incorporation of U.S.A. Floral
Products, Inc., as amended to date. 7
2.02 Amended and Restated Bylaws of U.S.A. Floral
Products, Inc. 13
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Exhibit 1.01
[U.S.A. FLORAL PRODUCTS, INC. LOGO]
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
Common Stock, Par Value $.001 Per Share
Number Shares
USA
CUSIP 90331T 10 7
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT
[ S P E C I M E N ]
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF U.S.A. FLORAL
PRODUCTS, INC. (the "Corporation"), transferable only on the books of the
Corporation by the holder hereof in person or by Attorney upon surrender of this
Certificate properly endorsed.
The Corporation will furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
IN WITNESS WHEREOF, U.S.A. Floral Products, Inc. has caused this
Certificate to be signed by its duly authorized officers and its Corporate Seal
to be hereunto affixed.
Dated:
[Corporate Seal of U.S.A. FLORAL PRODUCTS, INC., Delaware 1997]
/s/ Jonathan J. Ledecky /s/ Robert J. Poirier
SECRETARY PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN
Countersigned and Registered:
AMERICAN STOCK TRANSFER & TRUST COMPANY
Transfer Agent
and Registrar
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The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT - ________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though
not in the above list.
For value received, ________________________________________ hereby
sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------
I I
I I
- -----------------------------------------------------------------
- -----------------------------------------------------------------
Please print or typewrite name and address including
postal zip code of assignee
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- ---------------------------------------------------------- Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint -----------------------
- -----------------------------------------------------------------
Attorney to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated:-------------- ------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate in every particular, without alteration
or enlargement, or any change whatsoever.
<PAGE>
EXHIBIT 2.01
CERTIFICATE OF INCORPORATION
----------------------------
U.S. FLORAL PRODUCTS, INC.
--------------------------
FIRST: The name of the corporation (hereinafter referred to as the
"Corporation") is: U.S. Floral Products, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle 19805. The name of its registered agent at such address is Corporation
Service Company.
THIRD: The purposes of the Corporation are:
A. To acquire, own, develop, manage, manufacture, market, promote,
distribute and, if and when necessary and/or appropriate, sell or otherwise
dispose of the Corporation's assets, or any portion thereof, for the production
of a profit, including, without limitation, in connection with the operation of
a wholesale and/or retail flower business; to do every act and thing Incidental
to or connected with the aforesaid; and
B. To engage in, promote, conduct and carry on any lawful acts or
activities for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of authorized shares of capital stock of the
Corporation is one hundred thousand (100,000) shares of a par value of One Cent
($0.01) per share.
No holder of shares of the Corporation, now or hereafter authorized, shall
have any preferential or preemptive right to subscribe for, purchase or receive
(i) any shares of stock of the Corporation, now or hereafter authorized, (ii)
any options or warrants for such shares, (iii) any rights to subscribe to or
purchase such shares, or (iv) any securities convertible into or exchangeable
for such shares which may at any time or from time to time be issued, sold or
offered for sale by the Corporation.
FIFTH: The name and mailing address of the sole incorporator are: Marian
T. Lobl, 1615 L Street, N.W., Suite 400, Washington, D.C. 20036.
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SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The Private property or assets of the
stockholders of the Corporation shall not to any extent whatsoever be subject to
the payment of the debts of the Corporation.
EIGHTH: Elections of directors need not be by written ballot unless
otherwise provided in the Bylaws of the Corporation.
NINTH: The directors of the corporation shall be divided into three
classes, designated Class I, Class II and Class III. Each Class shall consist of
one-third of the directors or as close an approximation thereto as possible.
The initial term of office of the directors of Class I shall expire at the
annual meeting of stockholders of the Corporation to be held during calendar
year 1998. The Class 11 directors shall stand for election at the 1999 annual
meeting of stockholders and shall be elected for a two-year term. The Class III
directors shall stand for election at the 2000 annual meeting of stockholders
and shall be elected for a three-year term. At each annual meeting of the
Stockholders commencing with the annual meeting to be held during calendar year
1998, each of the successors to the directors of the class whose term shall have
expired at such annual meeting shall be elected for a term running until the
third annual meeting next succeeding his or her election and until his or her
successor shall have been duly elected and qualified. The number of directors
of each Class shall be fixed by, or in the manner provided in, the Bylaws of the
Corporation, other than the initial directors, who shall be chosen by the Sole
Incorporator. In the event that fewer than three (3) directors are elected, then
Class I will be eliminated and at least two (2) directors shall be elected, one
(1) of whom shall be designated a Class II director and one (1) of whom shall be
designated a Class III director. None of the directors need be a stockholder or
a resident of the State of Delaware.
TENTH: No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law (i) for breach of
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the director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article TENTH
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
ELEVENTH: In furtherance and not in limitation of the rights, powers,
privileges and discretionary authority granted or conferred by the General
Corporation Law of the State of Delaware or other statutes or laws of the State
of Delaware, the Board of Directors is expressly authorized:
A. To make, amend, alter or repeal the Bylaws of the Corporation;
B. To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation;
C. To set apart out of any funds of the Corporation available for
dividends, a reserve or reserves for any proper purpose and to reduce any such
reserve in the manner in which it was created; and
D. To adopt from time to time Bylaw provisions with respect to
indemnification of directors, officers, employees, agents and other persons as
it shall deem expedient and in the best interests of the Corporation and to the
extent permitted by law.
TWELFTH: The books of the Corporation may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of Directors or in
the Bylaws of the Corporation.
THIRTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions herein contained, in the manner now or hereafter
prescribed by statute, and all rights,
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powers, privileges and discretionary authority granted or conferred herein upon
stockholders or directors are granted subject to this reservation.
The undersigned, being the sole incorporator herein before named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate of Incorporation, hereby
declaring, affirming, acknowledging and certifying, under penalties of perjury,
that this is the act and deed of the undersigned and that the facts stated
herein are true, and accordingly has hereunto set her hand this 2nd day of
April, 1997.
SOLE INCORPORATOR
/s/ Marian T. Lobl
------------------
Marian T. Lobl
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CERTIFICATE OF AMENDMENT
------------------------
(BEFORE RECEIPT OF PAYMENT FOR ANY STOCK)
OF
--
CERTIFICATE OF INCORPORATION
----------------------------
OF
--
U.S. FLORAL PRODUCTS, INC.
--------------------------
The undersigned, being the Sole Incorporator of U.S. Floral Products, Inc.
(hereinafter referred to as the "Corporation"), a corporation organized under
the General Corporation Law of the State of Delaware, hereby certifies that:
I. The certificate of Incorporation of the Corporation is hereby amended
to change the corporate name by deleting therefrom ARTICLE FIRST, in its
entirety, and substituting in lieu thereof the following:
FIRST: The name of the corporation (herein referred to as the
"Corporation") is: U.S.A. Floral Products, Inc.
II. The Certificate of Incorporation of the Corporation is also hereby
amended to increase the capitalization by deleting therefrom ARTICLE FOURTH, in
its entirety, and substituting in lieu thereof the following:
FOURTH: The total number of authorized shares of capital stock
of the Corporation is one hundred million (100,000,000) shares of a par
value of One Tenth of One Cent ($0.001) per share.
No holder of shares of the Corporation, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe
for, purchase or receive (i) any shares of stock of the Corporation, now or
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hereafter authorized, (ii) any options or warrants for such shares, (iii)
any rights to subscribe to or purchase such shares, or (iv) any securities
convertible into or exchangeable for such shares, which may at any time or
from time to time be issued, sold or offered for sale by the Corporation.
III. No directors of the Corporation have as yet been elected or named in
the original Certificate of Incorporation of the Corporation.
IV. The Corporation has no outstanding shares of stock and
has not received any payment for any of its stock.
V. The above amendments have been duly adopted in accordance with the
provisions of Section 241 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, I have signed this Certificate of Amendment on this
22nd day of April, 1997.
SOLE INCORPORATOR
/s/ Marian T. Lobl
------------------
Marian T. Lobl
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EXHIBIT 2.02
U.S.A. FLORAL PRODUCTS. INC.
(a Delaware corporation)
---------------------------
AMENDED AND RESTATED BYLAWS
---------------------------
As adopted by the Board of Directors as of April 23, 1997.
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
U.S.A. FLORAL PRODUCTS, INC.
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the Corporation
shall be at Corporation Service Company, 1013 Centre Road, in the City of
Wilmington, County of New Castle, State of Delaware 19805.
Section 2. ADDITIONAL OFFICES. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. TIME AND PLACE. A meeting of stockholders for any purpose may
be held at such time and place, within or without the State of Delaware, as the
Board of Directors may fix from time to time and as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETING. Annual meetings of stockholders, commencing
with the year 1998, shall be held on April 15, if not a legal holiday, or, if a
legal holiday, then on the next secular day following, at 2 P.M., or at such
other date and time as shall, from time to time, be designated by the Board of
Directors and stated in the notice of the meeting. At such annual meeting, the
stockholders shall elect a Board of Directors and transact such other business
as may properly be brought before the meeting.
Section 3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting, stating the place, date and time thereof, shall be given to each
stockholder entitled to vote at such meeting not less than 10 (unless a longer
period is required by law) nor more than 60 days prior to the meeting.
Section 4. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board, if
any, or the President and shall be called by the President or Secretary at the
request in
<PAGE>
writing of a majority of the Board of Directors, or at the request in writing of
the stockholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 5. NOTICE OF SPECIAL MEETING. Written notice of a special
meeting, stating the place, date and time thereof and the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than 10 (unless a longer period is required by
law) nor more than 60 days prior to the meeting.
Section 6. LIST OF STOCKHOLDERS. The officer in charge of the stock
ledger of the Corporation or the transfer agent shall prepare and make, at least
10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least 10 days prior to the meeting,
at a place within the city where the meeting is to be held, which place, if
other than the place of the meeting, shall be specified in the notice of the
meeting. 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 in person thereat.
Section 7. 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
President, or, if he is not present, by a 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 capital 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, an Assistant Secretary, or, if he is not present, such person as
may be chosen by the Board of Directors, shall act as secretary of meetings of
stockholders, or, if none of such persons is present, the stockholders owning a
majority of the shares of capital 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.
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(b) The following order of business, unless otherwise ordered at the
meeting, shall be observed as far as practicable and consistent with the
purposes of the meeting:
1. Call of the meeting to order.
2. Presentation of proof of mailing of the notice of the meeting
and, if the meeting is a special 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, if any, of officers.
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.
Section 8. QUORUM; ADJOURNMENTS. The holders of a majority of the shares
of capital stock of the Corporation issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall be necessary to,
and shall constitute a quorum for, the transaction of business at all meetings
of the stockholders, except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, a quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time, without notice of the adjourned meeting
if the time and place thereof are announced at the meeting at which the
adjournment is taken, until a quorum shall be present or represented. Even if a
quorum shall be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the
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power to adjourn the meeting from time to time for good cause, without notice of
the adjourned meeting if the time and place thereof are announced at the meeting
at which the adjournment is taken, until a date which is not more than 30 days
after the date of the original meeting. At any such adjourned meeting, at which
a quorum shall be present in person or represented by proxy, any business may be
transacted which might have been transacted at the meeting as originally called.
If the adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote thereat.
Section 9. VOTING.
(a) At any meeting of stockholders, every stockholder having the right
to vote shall be entitled to vote in person or by proxy. Except as otherwise
provided by law or the Certificate of Incorporation, each stockholder of record
shall be entitled to one vote for each share of capital stock registered in his
name on the books of the Corporation.
(b) 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 on such other matters.
Section 10. ACTION BY CONSENT. 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, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present or represented by proxy and
voted. 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 so consented in writing thereto.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS; NUMBER; TENURE. The business of the
Corporation shall be managed by its Board of Directors, which may exercise all
powers of the Corporation and perform all lawful
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acts and things which are not by law, the Certificate of Incorporation or
these Bylaws directed or required to be exercised or performed by the
stockholders. Within the limits specified in this Section 1, the number of
directors within each Class (as defined in the Certificate of Incorporation)
shall be determined by the Board of Directors, except that if no such
determination is made, the number of directors in each Class shall, subject to
Section 2(b) of this Article, be one (1), but the total number of directors in
all Classes taken together may never be less than the number otherwise permitted
by law. The directors shall be elected at the annual meeting of the
stockholders in accordance with the provisions of the Certificate of
Incorporation, except as provided in Section 2 of this Article, and each
director elected shall hold office until his successor is elected and shall
qualify or as provided in the Certificate of Incorporation. Directors need not
be stockholders.
Section 2. VACANCIES.
(a) If any vacancies occur in the Board of Directors, or if any new
directorships are created, they may be filled by vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Each director so chosen shall hold office until the next annual
meeting of stockholders, or as provided in the Certificate of Incorporation and
until his successor is duly elected and shall qualify. If there are no
directors in office, any officer or 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.
(b) In the event that fewer than three (3) directors are elected, then
Class I will be eliminated and at least two (2) directors shall be elected, one
(1) of whom shall be designated a Class II director and one (1) of whom shall be
designated a Class III director.
Section 3. REMOVAL; RESIGNATION.
(a) Except as otherwise provided by law or the Certificate of
Incorporation, any director, directors or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
(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
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designated officer. It shall not be necessary for a resignation to be accepted
before it becomes effective.
Section 4. PLACE OF MEETINGS. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. ANNUAL MEETING. The annual meeting of each newly elected Board
of Directors shall be held immediately following the annual meeting of
stockholders, 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.
Section 6. REGULAR MEETINGS. Additional regular meetings of the Board of
Directors may be held without notice, at such time and place as may from time to
time be determined by the Board of Directors.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President or by 2 or more
directors on at least 2 days' notice to each director, if such notice is
delivered personally or sent by telegram, or on at least 3 days' notice if sent
by mail. Special meetings shall be called by the Chairman of the Board,
President, Secretary or 2 or more directors in like manner and on like notice on
the written request of one-half or more of the number of directors then in
office. Any such notice need not state the purpose or purposes of such meeting
except as provided in Article XI.
Section 8. QUORUM; ADJOURNMENTS. At all meetings of the Board of
Directors, a majority of the directors then in office shall 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 shall be the act of the Board
of Directors, except as may be otherwise specifically provided by law or the
Certificate of Incorporation. If a quorum is not present at any meeting of the
Board of Directors, the directors present may adjourn the meeting, from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. 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. The compensation of directors may be on such
basis as is determined 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
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Corporation in any other capacity and receiving compensation and reimbursement
for reasonable expenses for such other services.
Section 10. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting 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 Board of
Directors and such written consent is filed with the minutes of its proceedings.
Section 11. MEETINGS BY TELEPHONE OR SIMILAR COMMUNICATIONS. The Board of
Directors may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all directors participating
in the meeting can hear each other, and participation in such meeting shall
constitute presence in person by such director at such meeting.
ARTICLE IV
COMMITTEES
Section 1. EXECUTIVE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may appoint an Executive Committee
consisting of not more than 5 directors, 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.
Section 2. POWERS. Unless circumscribed by resolution of the Board
appointing the Executive Committee or except as otherwise provided by law, the
Executive Committee shall have and may exercise all of the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation including, without limitation, the power and authority to declare a
dividend in cash, property or its own shares and to authorize the issuance of
any shares of capital stock of the Corporation of any class now or hereafter
authorized, and any options or warrants for, and rights to subscribe to, such
shares, and any securities convertible into or exchangeable for such shares.
Section 3. 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.
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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 shall act as secretary of the Executive
Committee.
Section 4. 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 of the Executive Committee 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 1 of this Article, such
one member shall constitute a quorum.
Section 5. OTHER COMMITTEES. The Board of Directors, by resolutions
adopted by a majority of the whole Board, may appoint such other committee or
committees as it shall deem advisable and with such functions and duties as the
Board of Directors shall prescribe.
Section 6. 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.
Section 7. COMPENSATION. Members of any committee shall be entitled to
such compensation for their services as members of any 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 may waive compensation for any meeting. Any committee 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.
Section 8. ACTION BY CONSENT. 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.
Section 9. MEETINGS BY TELEPHONE OR SIMILAR COMMUNICATIONS. 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.
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ARTICLE V
NOTICES
Section 1. 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.
Section 2. 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 said 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.
ARTICLE VI
OFFICERS
Section 1. 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 Chief Executive Officer, a President, a Chief Operating Officer, a
Chief Financial Officer, a Vice President or Vice Presidents, a Secretary, a
Treasurer, one or more Assistant Secretaries and/or Assistant Treasurers and
other officers and agents as it shall deem necessary or appropriate. All
officers of the Corporation shall exercise such powers and perform such duties
as shall from time to time be determined by the Board of Directors. Any number
of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws otherwise provide.
Section 2. TERM OF OFFICE; REMOVAL. The Board of Directors at its annual
meeting after each annual meeting of stockholders
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shall choose a President, a Secretary and a Treasurer. The Board of Directors
may also choose a Chairman of the Board, a Chief Executive Officer, a Chief
Operating Officer, a Chief Financial Officer, a Vice President or Vice
Presidents, one or more Assistant Secretaries and/or Assistant Treasurers, and
such other officers and agents as it shall deem necessary or appropriate. Each
officer of the Corporation shall hold office until his successor is chosen and
shall qualify. Any officer elected or appointed by the Board of Directors may
be removed, 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 by
the Board of Directors.
Section 3. COMPENSATION. The salaries of all officers of the Corporation
shall be fixed from time to time by the Board of Directors and no officer shall
be prevented from receiving such salary by reason of the fact that he is also a
director of the Corporation.
Section 4. THE CHAIRMAN OF THE BOARD; NON-EXECUTIVE CHAIRMAN OF THE BOARD
(a) The Chairman of the Board, if any, shall be an officer of the
Corporation and, 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 or her from time to time by the Board of Directors. The
Chairman of the Board shall, if present and if no Non-Executive Chairman of the
Board is present, preside at all meetings of stockholders and of the Board of
Directors.
(b) The Board of Directors may, but need not, designate a Non-
Executive Chairman of the Board, who may serve in addition to, or in lieu of,
the Chairman of the Board, as the Board of Directors may determine in its
discretion. The Non-Executive Chairman of the Board, if any, shall not be an
officer of the Corporation, and shall not by virtue of his or her title as such
be entitled or authorized to perform any executive, supervisory or management
functions or duties separate and apart from his or her role as a director of the
Corporation. The Non-Executive Chairman of the Board shall, if present, preside
at all meetings of stockholders and of the Board of Directors.
Section 5. THE PRESIDENT.
(a) The President shall be the chief executive officer of the
Corporation and, subject to the direction of the Board of
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Directors, shall have general charge of the business, affairs and property of
the Corporation and general supervision over its other officers and agents. In
general, he shall perform all duties incident to the office of President and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. In addition to and not in limitation of the foregoing, the
President shall be empowered to authorize any change of the registered office or
registered agent (or both) of the Corporation in the State of Delaware.
(b) 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 any other person or persons.
Section 6. THE VICE PRESIDENTS. The Vice President, if any (or in the
event there be more than one, the Vice Presidents in the order designated, or in
the absence of any designation, in the order of their election), shall, in the
absence of the President or in the event of his disability, perform the duties
and exercise the powers of the President and shall generally assist the
President and perform such other duties and have such other powers as may from
time to time be prescribed by the Board of Directors.
Section 7. THE SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all votes and the
proceedings of the meetings in a book to be kept for that purpose and shall
perform like duties for the Executive Committee or other committees, if
required. He shall give, or cause to be given, notice of all meetings of
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board or the President, under whose supervision
he shall act. He shall have custody of the seal of the Corporation, and he, or
an Assistant Secretary, shall have authority to affix the same to any instrument
requiring it, and, when so affixed, the seal may be attested by his signature or
by the signature of such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing thereof by his signature.
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Section 8. THE ASSISTANT SECRETARY. The Assistant Secretary, if any (or
in the event there be more than one, the Assistant Secretaries in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of his
disability, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
Section 9. THE TREASURER. The Treasurer shall have the custody of the
corporate funds and other valuable effects, including securities, and shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may from time
to time be designated by the Board of Directors. He shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board,
the President and the Board of Directors, at regular meetings of the Board, or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation.
Section 10. THE ASSISTANT TREASURER. The Assistant Treasurer, if any (or
in the event there shall be more than one, the Assistant Treasurers in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Treasurer or in the event of his
disability, perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
ARTICLE VII
INDEMNIFICATION OF
DIRECTORS AND OFFICERS
Section 1. NATURE OF INDEMNITY. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a Director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
Director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may
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indemnify any person who was or is a party or is threatened to be made a party
to such an action, suit or proceeding by reason of the fact that he is or was or
has agreed to become an employee or agent of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as an employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; except that in the case of an action or suit by or in the
right of the Corporation to procure a judgment in its favor (a) such
indemnification shall be limited to expenses (including attorneys' fees)
actually and reasonably incurred by such person in the defense or settlement of
such action or suit, and (b) no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. SUCCESSFUL DEFENSE. To the extent that a Director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1
of this Article VII or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification of a Director or officer of the Corporation under Section 1 of
this Article VII (unless ordered by a court) shall be made by the Corporation
unless a determination is made that
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indemnification of the Director or officer is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Section
1. Any indemnification of an employee or agent of the Corporation under Section
1 (unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1. Any such determination shall be made (a) by the Board of Directors by
a majority vote of a quorum consisting of Directors who were not parties to such
action, suit or proceeding, or (b) 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 (c) by the stockholders.
Section 4. ADVANCE PAYMENT OF EXPENSES. Unless the Board of Directors
otherwise determines in a specific case, expenses incurred by a Director or
officer in defending a civil or criminal action, suit or proceeding shall 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 shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article VII.
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. The
Board of Directors may authorize the Corporation's legal counsel to represent
such Director, officer, employee or agent in any action, suit or proceeding,
whether or not the corporation is a party to such action, suit or proceeding.
Section 5. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any action,
suit, or proceeding previously or thereafter brought or threatened based in
whole or in part upon any such state of facts. Such a contract right may not be
modified retroactively without the consent of such Director, officer, employee
or agent.
The indemnification provided by this Article VII shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while
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holding such office, and shall continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The corporation may enter
into an agreement with any of its Directors, officers, employees or agents
providing for indemnification and advancement of expenses, including attorneys'
fees, that my change, enhance, qualify or limit any right to indemnification or
advancement of expenses created by this Article VII.
Section 6. SEVERABILITY. If this Article VII or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgment, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article VII that shall not have been invalidated and to the
fullest extent permitted by applicable law.
Section 7. SUBROGATION. In the event of payment of indemnification to a
person described in Section 1 of this Article VII, the Corporation shall be
subrogated to the extent of such payment to any right of recovery such person
may have and such person, as a condition of receiving indemnification from the
Corporation, shall execute all documents and do all things that the Corporation
may deem necessary or desirable to perfect such right of recovery, including the
execution of such documents necessary to enable the Corporation effectively to
enforce any such recovery.
Section 8. NO DUPLICATION OF PAYMENTS. The Corporation shall not be
liable under this Article VII to make any payment in connection with any claim
made against a person described in Section 1 of this Article VII to the extent
such person has otherwise received payment (under any insurance policy, bylaw or
otherwise) of the amounts otherwise indemnifiable hereunder.
ARTICLE VIII
AFFILIATED TRANSACTIONS AND INTERESTED DIRECTORS
Section 1. AFFILIATED TRANSACTIONS. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in
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which one or more of its directors or officers are directors or officers, or
have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction or solely because his or their votes are counted for
such purpose, if:
(a) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or
(b) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders.
Section 2. DETERMINING QUORUM. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee thereof which authorizes the contract or
transaction.
ARTICLE IX
STOCK CERTIFICATES
Section 1. FORM; SIGNATURES.
(a) Every holder of stock in the Corporation shall be entitled to have
a certificate, signed by the Chairman of the Board or the President and the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation, exhibiting the number and class (and series, if any) of
shares owned by him. Such signatures may be facsimile. A certificate may be
manually signed by a transfer agent or registrar other than the Corporation or
its employee but may be a facsimile. In case any officer who has signed, or
whose facsimile signature was placed on, a certificate shall have ceased to be
such officer before such
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certificate is issued, it may nevertheless be issued by the Corporation with the
same effect as if he were such officer at the date of its issue.
(b) All stock certificates representing shares of capital 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.
Section 2. REGISTRATION OF TRANSFER. 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 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 books.
Section 3. REGISTERED STOCKHOLDERS.
(a) 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 capital stock to receive dividends or other
distributions, to vote as such owner, and to hold liable for calls and
assessments any person who is registered on its books as the owner of shares of
its capital 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.
(b) If a stockholder desires that notices 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.
Section 4. RECORD DATE. In order that the Corporation may determine the
stockholders of record who are entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution, or to make a determination of the
stockholders of record for any other proper purpose, the Board of Directors may,
in advance, fix a date as the record date for any such determination. Such date
shall not be more than 60 nor less than 10 days before the date of such meeting,
nor more than 60 days prior to the date of any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall
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apply to any adjournment of the meeting taken pursuant to Section 8 of Article
II; provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 5. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors
may direct a new certificate 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 that fact by the person
claiming the certificate of stock 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 and/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.
ARTICLE X
GENERAL PROVISIONS
Section 1. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, dividends upon the outstanding capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law, and may be paid in cash, in property or in shares of the
Corporation's capital stock.
Section 2. 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.
Section 3. FISCAL YEAR. The fiscal year of the Corporation shall be as
determined from time to time by the Board of Directors.
Section 4. SEAL. The corporate seal shall have inscribed thereon the name
of the Corporation, the year of its incorporation and the words "Corporate Seal"
and "Delaware".
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ARTICLE XI
AMENDMENTS
The Board of Directors shall have the power to make, alter and repeal these
Bylaws, and to adopt new bylaws, by an affirmative vote of a majority of the
whole Board, provided that notice of the proposal to make, alter or repeal these
Bylaws, or to adopt new bylaws, must be included in the notice of the meeting of
the Board of Directors at which such action takes place.
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