<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1997
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO
SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
UNIVERSAL BRIDGE FUND, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 54-1844639
(STATE OR OTHER JURISDICTION OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
C/O WALNUT FINANCIAL SERVICES, INC.
8000 TOWERS CRESCENT DRIVE
SUITE 1070
VIENNA, VIRGINIA 22182
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (Zip Code)
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
------------------- ------------------------------
NONE NONE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(TITLE OF CLASS)
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Universal Bridge Fund, Inc. (the "Corporation") was incorporated under the laws
of the State of Delaware on January 30, 1996. The Corporation intends to elect
to be regulated as a business development company pursuant to Section 54(a) of
the Investment Company Act of 1940, as amended.
The Corporation is a wholly owned subsidiary of Walnut Financial Services, Inc.
which is currently registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended, and intends to elect to be regulated as a business
development company pursuant to Section 54(a) of the Investment Company Act of
1940, as amended.
The total number of shares of stock of all classes which the Corporation has
authority to issue is One Thousand (1,000) shares of capital stock, with a par
value of $0.01 per share, amounting in aggregate par value to Ten Dollars
($10.00). All of such shares are classified as "Common Stock." The Corporation
does not intend to list the Common Stock on any exchange or otherwise seek a
public market for the trading of these shares.
All Common Stock issued to date by the Corporation has been duly authorized,
fully paid and nonassessable. Holders of Common Stock are entitled to receive
dividends if, as and when authorized and declared by the Board of Directors of
the Corporation out of assets legally available therefor and to share ratably
in the assets of the Corporation legally available for distribution to its
stockholders in the event of its liquidation, dissolution or winding up after
payment of, or adequate provision for, all known debts and liabilities of the
Corporation.
Each outstanding share of Common Stock entitles the holder to one vote on all
matters submitted to a vote of shareholders, including the election of
directors. There is no cumulative voting in the election of directors, which
means that the holders of a majority of the outstanding Common Stock can elect
all of the directors then standing for election.
Holders of Common Stock have no conversion, sinking fund, redemption, or
preferential rights to subscribe for any securities of the Corporation. Shares
of Common Stock have equal dividend, distribution, liquidation and other
rights, and have no preference, exchange or, except as expressly required by
Delaware law, appraisal rights.
Pursuant to Delaware law, a corporation generally cannot dissolve, amend its
certificate of incorporation or merge, unless approved by the affirmative vote
of stockholders holding at least a majority of the shares entitled to vote on
the matter unless a greater percentage is set forth in the Corporation's
certificate of incorporation. The Corporation's Certificate of Incorporation do
not provide for a greater percentage in such situations.
The Corporation's Certificate of Incorporation and Bylaws are attached hereto
as Exhibit 3.1 and 3.2.
<PAGE> 3
ITEM 2. EXHIBITS
3.1. Certificate of Incorporation of the Registrant, as amended on June 18,
1996.
3.2. Amended and Restated Bylaws of the Registrant, dated October 8, 1997.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
UNIVERSAL BRIDGE FUND, INC.
/s/ Joel S. Kanter
Joel S. Kanter, President Date October 8, 1997
<PAGE> 1
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
UNIVERSAL BRIDGE FUND, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
Universal Bridge Fund, Inc.
2. The Certificate of Incorporation of the Corporation is hereby amended by
striking out Article Ninth and Article Tenth thereof and by substituting in
lieu of said Articles the following new Article Ninth and Article Tenth.
"INDEMNIFICATION
NINTH: Each person who is or was a director or officer of the Corporation
and each person who serves or served at the request of the Corporation as a
director, officer, or partner of another enterprise shall be indemnified by the
Corporation in accordance with, and to the fullest extent authorized by, the
General Corporation Law of the State of Delaware, as the same now exists or may
be hereafter amended (as limited by the Investment Company Act of 1940, as
amended, or any valid rule, regulation or order of the Securities and Exchange
Commission thereunder, in each case as now or hereafter in force (the "1940
Act"). No amendment to or repeal of this Article Ninth shall apply to or have
any effect on the rights of any individual referred to in this Article Ninth
for or with respect to acts omissions of such individual occurring prior to
such amendment or repeal."
"PERSONAL LIABILITY OF DIRECTORS
TENTH: To the fullest extent permitted by the General Corporation Law of
Delaware, as the same now exists or may be hereafter amended (as limited by the
1940 Act), a director of the Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director. 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 the effect date of such amendment or repeal."
3. This amendment of the Certificate of Incorporation herein certified has
been duly adopted in accordance with the provisions of Sections 228 and 242 of
the General Corporation Law of the State of Delaware, as the same now exists or
may be hereafter amended.
Dated as of the 8th day of October, 1997.
/s/ Joel S. Kanter
--------------------------------------------
Joel S. Kanter, President of the Corporation
<PAGE> 2
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
UNIVERSAL ACQUISITION CORP.
Universal Acquisition Corp., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That the name of the Corporation is:
Universal Acquisition Corp.
SECOND: That the Board of Directors of said corporation, pursuant to
resolutions adopted by said Board, adopted a resolution proposing and declaring
the following Amendment to the Certificate of Incorporation of said
corporation:
RESOLVED, that the Certificate of Incorporation of the Corporation be, and
hereby is, amended by changing the First Article thereof so that, as amended,
said Article shall read as follows:
FIRST: The name of the corporation is Universal Bridge Fund, Inc.
(hereinafter called the "Corporation").
THIRD: That in lieu of a meeting and vote of the stockholders of the
Corporation (the "Stockholders"), the Stockholders have given their written
consent to said amendment in accordance with the provisions of Section 228 of
the General Corporation Law of the State of Delaware.
FOURTH: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, Universal Acquisition Corp. has caused this
Certificate of Amendment to be signed by Joel S. Kanter, its President and
attested by Joshua S. Kanter, its Secretary this 17th day of June, 1996.
Universal Acquisition Corp.
By: /s/ Joel S. Kanter
Joel S. Kanter, President
ATTEST:
By: /s/ Joshua S. Kanter
Joshua S. Kanter, Secretary
<PAGE> 3
CERTIFICATE OF INCORPORATION
OF
UNIVERSAL ACQUISITION CORP.
NAME
FIRST: The name of the corporation is:
UNIVERSAL ACQUISITION CORP.
REGISTERED OFFICE AND AGENT
SECOND: The address of the corporation's registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle.
The name of the corporation's registered agent at such address is The
Prentice-Hall Corporation System, Inc.
PURPOSE
THIRD: The nature of the business or purposes to be conducted or promoted by
the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware, as amended from time to time, or any successor thereto.
AUTHORIZED STOCK
FOURTH: The total number of shares of stock which the corporation shall have
authority to issue is One Thousand (1,000) shares of Common Stock, par value of
$.01 per share.
INCORPORATOR
FIFTH: The name and mailing address of the incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
- ---- ---------------
<S> <C>
Dana L. Redburg Barack Ferrazzano Kirschbaum
Perlman & Nagelberg
333 West Wacker Drive
Suite 2700
Chicago, Illinois 60606
</TABLE>
BYLAWS
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter, amend
or repeal the bylaws of the corporation.
2
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WRITTEN BALLOTS
SEVENTH: Election of directors need not be by written ballot unless the bylaws
of the corporation so provide.
AMENDMENTS
EIGHTH: The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
INDEMNIFICATION
NINTH: Each person who is or was a director or officer of the corporation and
each person who serves or served at the request of the corporation as a
director, officer, or partner of another enterprise shall be indemnified by the
corporation in accordance with, and to the fullest extent authorized by, the
General Corporation Law of the State of Delaware, as the same now exists or may
be hereafter amended. No amendment to or repeal of this Article Ninth shall
apply to or have any effect on the rights of any individual referred to in this
Article Ninth for or with respect to acts or omissions of such individual
occurring prior to such amendment or repeal.
PERSONAL LIABILITY OF DIRECTORS
TENTH: To the fullest extent permitted by the General Corporation Law of
Delaware, as the same now exists or may be hereafter amended, a director of the
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. 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 the effect date of
such amendment or repeal.
CERTAIN ARRANGEMENTS BETWEEN THE
CORPORATION AND ITS CREDITORS
ELEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provision of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provision of Section 279 of Title 8 of
the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors of
class of creditors, and/or of the
3
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stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
Dated as of the 30th day of January, 1996
/s/ Dana L. Redburg
Dana L. Redburg
Being the sole incorporator of the
corporation.
4
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
UNIVERSAL BRIDGE FUND, INC.
October 8, 1997
Prepared by:
Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 W. Wacker Drive, Suite 2700
Chicago, Illinois 60606
<PAGE> 2
UNIVERSAL BRIDGE FUND, INC. BYLAWS
Table of Contents
<TABLE>
<S> <C>
ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 PRINCIPAL OFFICES. . . . . . . . . . . . . . . . 1
SECTION 1.2 OTHER OFFICES. . . . . . . . . . . . . . . . . . 1
ARTICLE II MEETING OF STOCKHOLDERS . . . . . . . . . . . . . . . 1
SECTION 2.1 ANNUAL MEETING . . . . . . . . . . . . . . . . . 1
SECTION 2.2 SPECIAL MEETINGS . . . . . . . . . . . . . . . . 1
SECTION 2.3 NOTICE . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.4 STOCKHOLDER LIST . . . . . . . . . . . . . . . . 1
SECTION 2.5 QUORUM . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.6 VOTING . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.7 WRITTEN CONSENT. . . . . . . . . . . . . . . . . 2
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3.1 NUMBER . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3.2 VACANCIES. . . . . . . . . . . . . . . . . . . . 3
SECTION 3.3 DUTIES OF DIRECTORS. . . . . . . . . . . . . . . 3
SECTION 3.4 MEETINGS . . . . . . . . . . . . . . . . . . . . 3
SECTION 3.5 REGULAR MEETINGS . . . . . . . . . . . . . . . . 3
SECTION 3.6 SPECIAL MEETINGS . . . . . . . . . . . . . . . . 3
SECTION 3.7 NOTICE . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3.8 QUORUM . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.9 VOTING . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.10 UNANIMOUS WRITTEN CONSENT. . . . . . . . . . . . 4
SECTION 3.11 COMMITTEES OF DIRECTORS. . . . . . . . . . . . . 4
SECTION 3.12 RECORDS OF COMMITTEES. . . . . . . . . . . . . . 4
SECTION 3.13 COMPENSATION OF DIRECTORS. . . . . . . . . . . . 4
ARTICLE IV OFFICERS. . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.1 NUMBER . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.2 ELECTION . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.3 COMPENSATION . . . . . . . . . . . . . . . . . . 5
SECTION 4.4 TERM . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.5 DUTIES OF OFFICERS . . . . . . . . . . . . . . . 5
</TABLE>
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<TABLE>
<S> <C>
ARTICLE V CERTIFICATES OF STOCK. . . . . . . . . . . . . . . . . 8
SECTION 5.1 DESCRIPTION . . . . . . . . . . . . . . . . . . . 8
SECTION 5.2 FACSIMILE OF SIGNATURE. . . . . . . . . . . . . . 8
SECTION 5.3 TRANSFER OF STOCK . . . . . . . . . . . . . . . . 8
SECTION 5.4 REGISTERED STOCKHOLDERS . . . . . . . . . . . . . 9
ARTICLE VI GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . 9
SECTION 6.1 DIVIDENDS . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.2 STATEMENTS AND REPORTS. . . . . . . . . . . . . . 9
SECTION 6.3 CHECKS AND NOTES. . . . . . . . . . . . . . . . . 9
ARTICLE VII FISCAL YEAR. . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VIII INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . 10
SECTION 8.1 GENERAL . . . . . . . . . . . . . . . . . . . . . 10
SECTION 8.2 PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION. . . . . . . . . . . . . 10
SECTION 8.3 PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION 10
SECTION 8.4 INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS
WHOLLY OR PARTLY SUCCESSFUL . . . . . . . . . . . 10
SECTION 8.5 INDEMNIFICATION FOR EXPENSES OF A WITNESS . . . . 11
SECTION 8.6 ADVANCEMENT OF EXPENSES . . . . . . . . . . . . . 11
SECTION 8.7 PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO . .
INDEMNIFICATION . . . . . . . . . . . . . . . . . 11
SECTION 8.8 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. . 12
SECTION 8.9 REMEDIES OF INDEMNITEE. . . . . . . . . . . . . . 13
SECTION 8.10 NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; .
SUBROGATION . . . . . . . . . . . . . . . . . . . 14
SECTION 8.11 SEVERABILITY. . . . . . . . . . . . . . . . . . . 15
SECTION 8.12 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES . . . . . . . . . . . . . 15
SECTION 8.13 LIMITATION FOR DISABLING CONDUCT . . . . . . . . 15
SECTION 8.14 DEFINITIONS . . . . . . . . . . . . . . . . . . . 17
SECTION 8.15 NOTICES . . . . . . . . . . . . . . . . . . . . . 18
SECTION 8.16 MISCELLANEOUS . . . . . . . . . . . . . . . . . . 18
ARTICLE IX AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE X NOTICE . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 10.1 NOTICE . . . . . . . . . . . . . . . . . . . . . 18
SECTION 10.2 WAIVER OF NOTICE . . . . . . . . . . . . . . . . 19
</TABLE>
ii
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BYLAWS
OF
UNIVERSAL BRIDGE FUND, INC.
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICES. The principal offices of the Corporation
shall be in the City of Dover, State of Delaware.
SECTION 1.2 OTHER OFFICES. The Corporation may also have offices at such
other place both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETING OF STOCKHOLDERS
SECTION 2.1 ANNUAL MEETING. The annual meeting of stockholders of the
Corporation shall be held on the 15th day in January, of each year if not a
legal holiday, or if a legal holiday, then on the next day that is not a legal
holiday, at 10:00 a.m., or at such other date and time as may be fixed by the
Board of Directors. Such meeting shall be within or without the State of
Delaware, at which meeting the stockholders shall elect by a plurality vote a
Board of Directors, and transact such other business as may properly be brought
before the meeting. If the election of directors shall not be held on the day
designated herein for any annual meeting, or any adjournment thereof, the Board
of Directors shall cause the election to be held at a meeting of the
stockholders as soon thereafter as may be convenient.
SECTION 2.2 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 President and shall be
called by the President or Secretary at the request in writing of a majority of
the Board of Directors or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice.
SECTION 2.3 NOTICE. Written notice of the annual or special meeting shall
be given to each stockholder entitled to vote thereat, in person or by mailing
to him at his last known address, not less than 10 nor more than 60 days before
the date of meeting, unless such notice is waived in writing by each
stockholder entitled thereto.
SECTION 2.4 STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the Corporation shall, not less than 10 nor more than 60 days prior
to any election of directors, prepare a list of all stockholders of record (the
date of such list being hereafter referred to as the ("record
<PAGE> 5
date"), which list shall be in alphabetical order and shall show the address
and number of shares registered in the name of each such stockholder. At such
election, each stockholder of record on the record date shall be entitled to
vote the shares owned by him, as disclosed by such list, irrespective of any
transfers thereof subsequent to the record date. Such list shall also govern
the voting of shares; provided, however, that the Board of Directors may, but
shall not be required to, fix a new record date for any adjourned meeting.
Such list shall be open to the examination of any stockholder or his duly
authorized legal representative, during ordinary business hours, for a period
of at least 10 days prior to the election, either at a place within the city,
town or village where the election is to be held, and which place shall be
specified in the notice of the meeting, or, if not specified, at the place
where said meeting is to be held, and the list shall be produced and kept at
the time and place of election during the whole time thereof, and shall be
subject to the inspection of any stockholder who may be present.
SECTION 2.5 QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be presented or represented,
at which time any business may be transacted which might have been transacted
at the meeting as originally notified. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express statutory
provision or by express provision of the certificate of incorporation, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
SECTION 2.6 VOTING. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from the date of such proxy, unless the proxy provides for a
longer period.
SECTION 2.7 WRITTEN CONSENT. Whenever the vote of stockholders at a
meeting thereof is required or permitted to be taken in connection with any
corporate action by any statutory provision or by any provision of the
certificate of incorporation or of these bylaws, such meeting and vote of
stockholders may be dispensed with if a majority of the stockholders who would
have been entitled to vote upon the action if such meeting were held shall
consent in writing to such corporate action being taken. Prompt notice of the
taking of any corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing,
as required by statutory provision.
2
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ARTICLE III
DIRECTORS
SECTION 3.1 NUMBER. The number of directors of the Corporation shall be
not less than 3, nor more than 9, as set forth by resolution of the
Board of Directors. The directors shall be elected at the annual or special
meeting of the stockholders (except as provided in Section 2 of this Article),
and each director elected shall hold office until his successor is elected and
qualified or until his or her earlier resignation or removal, in accordance
with Delaware General Corporation Law Section 141(k). The election shall be
decided by a majority vote. Directors need not be stockholders.
SECTION 3.2 VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced.
SECTION 3.3 DUTIES OF DIRECTORS. The business of the Corporation shall be
managed by or under the direction of its Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not by statute or by the certificate of incorporation or by these bylaws
directed or required to be exercised or done by the stockholders.
SECTION 3.4 MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
SECTION 3.5 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held immediately following the annual meeting of the stockholders. In
the event such meeting is not held immediately following the annual meeting of
the stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors.
SECTION 3.6 SPECIAL MEETINGS. Special meetings of the board may be called
by the President with notice to each of the directors as provided in Section 7
of Article III hereof; special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of two
directors.
SECTION 3.7 NOTICE. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time
be determined by the Board. Notice of meetings other than regular meetings
shall be given to each director, in person or by mailing or by telegram. Any
such notice shall be given to a director at his last known address not less
than 10 nor more than 60 days prior to the date designated therein for such
meeting, including the date of mailing, unless said notice is waived in
writing by such director. Said notice shall be written, specifying the time
and place of such meeting.
3
<PAGE> 7
SECTION 3.8 QUORUM. At all meetings of the Board of Directors, a majority
of the directors 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 statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
SECTION 3.9 VOTING. At all meetings of the Board of Directors, each
director is to have one vote, irrespective of the number of shares of stock
that he may hold.
SECTION 3.10 UNANIMOUS WRITTEN CONSENT. Unless otherwise restricted by the
certificate of incorporation or by these bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or any
committee thereof, may be taken without a meeting if all members of the board
or committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of the proceedings of the board or
committee.
SECTION 3.11 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, except as
otherwise provided by statute, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, including the power and authority to declare
dividends, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors.
SECTION 3.12 RECORDS OF COMMITTEES. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
SECTION 3.13 COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
certificate of incorporation or by these bylaws, the Board of Directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and, subject to the above, may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
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ARTICLE IV
OFFICERS
SECTION 4.1 NUMBER. The officers of the Corporation shall be chosen by
the Board of Directors and may be a President, a Vice-President, a Secretary
and a Treasurer. The Board of Directors may also choose one or more
Vice-Presidents, one or more Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person. The Board of Directors
may appoint such other officers and agents as it shall deem necessary, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board.
SECTION 4.2 ELECTION. The Board of Directors at its first meeting after
each annual meeting of stockholders shall elect a President, a Secretary and a
Treasurer.
SECTION 4.3 COMPENSATION. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors. Any payments made to or
on behalf of any officer of the Corporation (including but not limited to
salary, bonus, rent or reimbursement for expenses) shall be determined by the
Board of Directors in its sole discretion. In the event, however, that any
such payment, whether it shall be in the form of cash, kind or services, which,
subsequent to such payment, is finally determined either by any governmental
taxing authority (with the consent of the Corporation) or any court of
competent jurisdiction as not being a deductible expense by the Corporation for
purposes of computing such taxes, shall be repaid by such officer to the
Corporation to the extent disallowed. The Board of Directors and officers of
the Corporation shall take whatever action is necessary to enforce such
repayment. Each officer of the Corporation shall, upon his entering into
office, be formally notified of this bylaw by the Board of Directors of the
Corporation.
SECTION 4.4 TERM. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Anything to the contrary herein
notwithstanding, any officer elected or appointed by the Board of Directors may
be removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors.
SECTION 4.5 DUTIES OF OFFICERS. The duties and powers of the officers
shall be as follows:
Chairman of the Board
The Chairman of the Board of the Corporation shall be responsible for
formulating general policies and programs for the Corporation for submission to
the Board of Directors. The Chairman of the Board shall cause to be called
regular and special meetings of the stockholders and Board of Directors in
accordance with these bylaws and he shall preside at all such meetings. The
Chairman of the Board shall also have such other powers and duties as shall be
assigned to him by the Board of Directors.
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President
In the absence or disability of the Chairman of the Board, or in the event
for any reason it is impracticable for the Chairman of the Board to act
personally, the President shall have the powers and duties of the Chairman of
the Board. The President shall be the chief executive officer and the general
manager of the Corporation and shall, in general, be responsible for the
administration and operation of all of the business and affairs of the
Corporation and for carrying out the programs and policies approved by the
Board of Directors.
He shall present annually to the stockholders and directors a report of
the condition of the business of the Corporation.
He shall appoint and remove, employ and discharge, and fix the
compensation of all agents, employees, and clerks of the Corporation, within
the scope of his authority as general manager.
He shall sign and make all contracts and agreements in the name of the
Corporation, within the scope of his authority as general manager.
He shall see that the books, reports, statements and certificates required
by the statutes are properly kept, made and filed according to law.
He shall sign all certificates of stock, notes, drafts or bills of
exchange, warrants or other orders for the payments of money duly drawn by the
Treasurer.
He shall enforce these bylaws and perform all the duties incident to the
position and office, and which are required by law and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Vice-President
The Vice-President, if there shall be one, or if there shall be more than
one, the Vice-Presidents in the order determined by the Board of Directors (or
if there be no such determination, then in the order of their election), shall,
in the absence or disability of the Chairman of the Board and the President,
perform the duties and exercise all the powers of the Chairman of the Board, or
the President, and be subject to all the restrictions upon the Chairman of the
Board or the President. The Vice-Presidents shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
Secretary
The Secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and record all the proceedings of the meetings of
the Corporation and of the Board of Directors in a book to be kept for that
purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or President,
under whose supervision he shall be. He shall have custody of the corporate
seal of the Corporation and he, or an Assistant Secretary, shall
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have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
Assistant Secretary. He shall also perform such other duties and have such
other powers as the Board ofDirectors may from time to time prescribe. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature.
Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there be
no such determination, then in the order of their election), shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
Treasurer
The Treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all monies and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors.
He 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 President and the Board of Directors at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer and the financial condition of the Corporation.
If required by the Board of Directors, he shall give the Corporation and
maintain a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
In the event there are no Vice-Presidents of the Corporation, the
Treasurer shall, in the absence of the Chairman of the Board and the President
or in the event of their inability to act, perform the duties of the Chairman
of the Board and the President, and when so acting shall have all the powers of
and be subject to all the restrictions upon the Chairman of the Board and the
President. In addition, the Treasurer shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe.
Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there shall
be no such determination, then in the order of their election), shall, in the
absence or disability of the Treasurer, perform the duties and
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exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
ARTICLE V
CERTIFICATES OF STOCK
SECTION 5.1 DESCRIPTION. Every holder of stock in the Corporation shall
be entitled to have a certificate, signed by, or in the name of the Corporation
by, the President or a Vice-President, and countersigned by the Treasurer or
Assistant Treasurer, Secretary or Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation, and sealed
with the seal of the Corporation. If the Corporation shall be authorized to
issue more than one class of stock, or more than one series of any class, the
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 shall be set
forth in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class of stock; provided, however,
that except as otherwise provided in Section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who so requests, the 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.
SECTION 5.2 FACSIMILE OF SIGNATURE. Where a certificate is signed (1)
by a transfer agent, or (2) by a transfer clerk, acting on behalf of the
Corporation and a registrar, the signature of any such President,
Vice-President, Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary may be facsimile. In case any officer or officers who have signed,
or whose facsimile signature or signatures have been used on any such
certificate or certificates, shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
Corporation.
SECTION 5.3 TRANSFER OF STOCK. The stock of the Corporation, irrespective
of class, shall be assignable and transferable on the books of the Corporation
only by the person in whose name it appears on said books, or his legal
representatives. In case of transfer by attorney, the power of attorney, duly
executed and acknowledged shall be deposited with the Secretary. In all cases
of transfer, the former certificate must be surrendered up and canceled before
a new certificate be issued; however, in the event of loss, mutilation or
destruction of a certificate, a duplicate certificate may be issued upon such
terms as the Board of Directors shall prescribe. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the Corporation
to issue a new certificate to the person entitled thereto, cancel
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the old certificate and record the transaction upon its books, subject,
however, to any restrictions or limitations on the transfer thereof which may
be set forth in the certificate of incorporation or referred to on the
certificate so surrendered or which may be imposed by law or by any agreement
to which the holder of such shares is subject.
SECTION 5.4 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote or take other action as such owner,
and to hold liable for calls and assessments a person registered on its books
as the owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum as the directors
from time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation, or for such other purpose as
the directors shall think conducive to the interest of the Corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
SECTION 6.2 STATEMENTS AND REPORTS. The Board of Directors shall
present at each annual meeting, and at any special meeting of the
stockholders when called for by vote of the stockholders, a full and clear
statement of the business and condition of the Corporation.
SECTION 6.3 CHECKS AND NOTES. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
persons as the Board of Directors may from time to time designate.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 GENERAL. The Corporation shall indemnify, and advance
Expenses (as hereinafter defined) to, any Indemnitee (as hereinafter
defined) as provided in this Article and to the fullest extent permitted by
applicable law.
SECTION 8.2 PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 8.2 if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to any
threatened, pending, or completed Proceeding (as hereinafter defined), other
than a Proceeding by or in the right of the Corporation. Pursuant to this
Section 8.2, Indemnitee shall be indemnified against Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
SECTION 8.3 PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. Indemnitee
shall be entitled to the rights of indemnification provided in this Section 8.3
if, by reason of his Corporate Status, he is, or is threatened to be made, a
party to any threatened, pending or completed Proceeding brought by or in the
right of the Corporation to procure a judgment in its favor. Pursuant to this
Section, Indemnitee shall be indemnified against Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation. Notwithstanding the
foregoing, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which Indemnitee shall have
been adjudged to be liable to the Corporation if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Corporation
in such event if and only to the extent that the Court of Chancery of the State
of Delaware, or the court in which such Proceeding shall have been brought or
is pending, shall determine.
SECTION 8.4 INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this Article, to
the extent that Indemnitee is, by reason of his Corporate Status, a party to
and is successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
Corporation shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
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SECTION 8.5 INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Article, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
SECTION 8.6 ADVANCEMENT OF EXPENSES. The Corporation shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within 20 days after the receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the
Expenses incurred by Indemnitee and shall include or be preceded or accompanied
by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses.
SECTION 8.7 PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To obtain indemnification under this Article, Indemnitee shall submit
to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the
first sentence of Section 8.7(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made
in the specific case: (i) if a Change in Control (as hereinafter defined)
shall have occurred by Independent Counsel (as hereinafter defined) (unless
Indemnitee shall request that such determination be made by the Board of
Directors or the stockholders, in which case by the person or persons or in the
manner provided for in clauses (ii) or (iii) of this Section 8.7(b)) in a
written opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the
Board of Directors by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter defined), or (B) if such a quorum of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee or
(C) by the stockholders of the Corporation; or (iii) as provided in Section
8.8(b); and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days after
such determination.
Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee's entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or expenses (including
attorneys' fees and disbursements) incurred by Indemnitee in so cooperating
with the person, persons or entity making
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such determination shall be borne by the Corporation (irrespective of the
determination as to Indemnitee's entitlement to indemnification) and the
Corporation hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(c) In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 8.7(b), the Independent
Counsel shall be selected as provided in this Section 7(c). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board of Directors, and the Corporation shall give written
notice to Indemnitee advising him of the identity of the Independent Counsel,
so selected. If a Change in Control shall have occurred, the Independent
Counsel shall be selected by Indemnitee (unless Indemnitee shall request that
such selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the
Corporation advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Corporation, as the case may be, may,
within 7 days after such written notice of selection shall have been given,
deliver to the Corporation or to Indemnitee, as the case may be, a written
objection to such selection. Such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 8.13, and the objection shall
set forth with particularity the factual basis of such assertion. If such
written objection is made, the Independent Counsel so selected may not serve
as Independent Counsel unless and until a court has determined that such
objection is without merit. If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section 8.7(a)
hereof, no Independent Counsel shall have been selected and not objected to,
either the Corporation or Indemnitee may petition the Court of Chancery of the
State of Delaware or other court of competent jurisdiction for resolution of
any objection which shall have been made by the Corporation or Indemnitee to
the other's selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the Court or by such other person
as the Court shall designate, and the person with respect to whom an objection
is so resolved or the person so appointed shall act as Independent Counsel
under Section 8.7(b) hereof. The Corporation shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent Counsel
in connection with acting pursuant to Section 8.7(b) hereof, and the
Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 8.7(c), regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 8.9(a)(iii),
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
SECTION 8.8 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) If a Change of Control shall have occurred, in making a determination
with respect to entitlement to indemnification hereunder, the person, persons
or entity making such determination shall presume that Indemnitee is entitled
to indemnification under this Article if Indemnitee has submitted a request for
indemnification in accordance with Section 8.7(a), and the Corporation shall
have the burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination contrary to that
presumption.
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(b) If the person, persons or entity empowered or selected under Section
8.7 to determine whether Indemnitee is entitled to indemnification
shall not have made such determination within 60 days after receipt by the
Corporation of the request therefor, the requisite determination of entitlement
to indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable
law; provided, however, that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if the person, persons or
entity making the determination with respect to entitlement to indemnification
in good faith requires such additional time for the obtaining or evaluation of
documentation and/or information relating thereto; and provided, further, that
the foregoing provisions of this Section 8.8(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 8.7(b) and if (A) within 15 days
after receipt by the Corporation of the request for such determination the
Board of Directors has resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be held
within 75 days after such receipt and such determination is made thereat, or
(B) a special meeting of stockholders is called within 15 days after such
receipt for the purpose of making such determination, such meeting is held for
such purpose within 60 days after having been so called and such determination
is made thereat, or (ii) if the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 8.7(b).
(c) The termination of any Proceeding or of any claim, issue or matter
therein by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Article) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner in which he reasonably believed to be in or not opposed
to the best interests of the Corporation or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful.
SECTION 8.9 REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to Section
8.7 that Indemnitee is not entitled to indemnification under this Article,
(ii) advancement of Expenses is not timely made pursuant to Section 8.6, (iii)
the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8.7(b) and such determination shall not
have been made and delivered in a written opinion within 90 days after receipt
by the Corporation of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 8.5 within 10 days after
receipt by the Corporation of a written request therefor, or (v) payment of
indemnification is not made within 10 days after a determination has been made
that Indemnitee is entitled to indemnification or such determination is deemed
to have been made pursuant to Section 8.8, Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of his entitlement to such indemnification or
advancement of Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator
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pursuant to the rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section 8.9(a). The
Corporation shall not oppose Indemnitee's right to seek any such adjudication
or award in arbitration.
(b) In the event that a determination shall have been made pursuant to
Section 8.7 that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 8.9 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination. If
a Change of Control shall have occurred, in any judicial proceeding or
arbitration commenced pursuant to this Section 8.9 the Corporation shall have
the burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been made
pursuant to Section 8.7 or 8.8 that Indemnitee is entitled to indemnification,
the Corporation shall be bound by such determination in any judicial proceeding
or arbitration commenced pursuant to this Section 8.9, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee's statement not materially misleading, or
(ii) a prohibition of such indemnification under applicable law.
(d) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 8.9 that the
procedure and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Article.
(e) In the event that Indemnitee, pursuant to this Section 8.9, seeks a
judicial adjudication of or an award in arbitration to enforce his rights under
or to recover damages for breach of, this Article, Indemnitee shall be entitled
to recover from the Corporation, and shall be indemnified by the Corporation
against, any and all expenses (of the types described in the definition of
Expenses in Section 8.13) actually and reasonably incurred by him in such
judicial adjudication or arbitration, but only if he prevails therein.
If it shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be
appropriately prorated.
SECTION 8.10 NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive advancement of Expenses
as provided by this Article shall not be deemed exclusive of any other rights
to which Indemnitee may at any time be entitled under applicable law, the
certificate of incorporation, these bylaws, any agreement between the
Corporation and any of its directors, officers, employees or agents, or
otherwise, a vote of stockholders or a resolution of directors or otherwise.
No amendment, alteration or repeal of this Article or of any provision hereof
shall be effective as to any Indemnitee with respect to any action taken or
omitted by such Indemnitee in his Corporate Status prior to such amendment,
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alteration or repeal. The provisions of this Article shall continue as to an
Indemnitee whose Corporate Status has ceased and shall inure to the benefit of
his heirs, executors and administrators.
(b) To the extent that the Corporation maintains an insurance policy or
policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies.
(c) In the event of any payment under this Article, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary
to enable the Corporation to bring suit to enforce such rights.
(d) The Corporation shall not be liable under this Article to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 8.11 SEVERABILITY. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each portion of any
Section of this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (b) to the fullest
extent possible, the provisions of this Article (including, without limitation,
each portion of any Section of this Article containing any such provision held
to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
SECTION 8.12 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT
OF EXPENSES. Notwithstanding any other provision of this Article, no person
shall be entitled to indemnification or advancement of Expenses under this
Article with respect to any Proceeding, or any claim therein, brought or made
by him against the Corporation.
SECTION 8.13 LIMITATION FOR DISABLING CONDUCT.
(a) Notwithstanding anything to the contrary in Article VIII hereof, the
Corporation may not indemnify any director or officer of the Corporation
against any liability, nor shall any director or officer of the Corporation by
exculpated from any liability, to the Corporation or its stockholders to which
such director or officer might otherwise be subject by reason of "disabling
conduct," as hereinafter defined. Accordingly, each determination with respect
to the permissibility of indemnification of a director or officer of the
Corporation because such director or officer has met the applicable standard of
conduct shall include a determination that the liability for which such
indemnification is sought did not arise by reason of such person's disabling
conduct. The determination required by this section 8.13(a) may be based on:
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(i) a final decision on the merits by a court or other body before whom
the action, suit or proceeding was brought that the person to be indemnified
was not liable by reason of disabling conduct; or
(ii) in the absence of such a decision, a reasonable determination,
based on a review of the facts, that the person to be indemnified was not
liable by reason of such person's disabling conduct, by (A) the vote of a
majority of a quorum of "disinterested, non-party directors," as hereinafter
defined, or (B) an independent legal counsel in a written opinion. In making
such determination, such disinterested, non-party directors or independent legal
counsel, as the case may be, may deem the dismissal of either a court action or
an administrative proceeding against the person to be indemnified, for
insufficiency of evidence of any disabling conduct with which he has been
charged, to provide reasonable assurance that such person was not liable by
reason of disabling conduct.
(b) For purposes of this S[ubs]ection:
(i) "disabling conduct" of a director or officer shall mean such
person's willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office, or any other
conduct prohibited by Section 17(h) of the Investment Company Act of 1940, as
amended (the "1940 Act") or any other applicable securities laws;
(ii) "disinterested, non-party director" shall mean a director of the
Corporation who is neither an "interested person" of the Corporation as defined
in Section 2(a)(19) of the 1940 Act nor a party to the action, suit or
proceeding in connection with which indemnification is sought; and
(iii) "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents.
(c) The Corporation may purchase insurance to cover the payment of costs
incurred in performing the Corporation's obligations under Section(s) 8.13
hereof, but no insurance may be obtained for the purpose of indemnifying any
disabling conduct.
(d) The Corporation may advance legal fees and other expenses pursuant to
the indemnification rights set forth in Section(s) 8.13 hereof, upon both the
undertaking by or on behalf of the person to be indemnified to repay the
advance unless it is ultimately determined that he is entitled to
indemnification and the occurrence of one of the following additional
conditions:
(i) the person to be indemnified shall provide a security for his
undertaking;
(ii) the Corporation shall be insured against losses arising by reason
of any lawful advances; or
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(iii) a majority of a quorum of the disinterested, non-party directors of
the Corporation, or an independent legal counsel in a written opinion, shall
determine, based on a review of the readily available facts (as opposed to a
full trial-type inquiry), that there is reason to believe that the person to be
indemnified ultimately will be found entitled to indemnification.
SECTION 14 DEFINITIONS. For purposes of this Article:
(a) "Change in Control" means a change in control of the Corporation
occurring after the Effective Date (as hereinafter defined) of a nature that
would be required to be reported in response to Item 5(f) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar schedule or
form) promulgated under the Securities Exchange Act of 1934 (the "Act"),
whether or not the Corporation is then subject to such reporting requirement;
provided, however, that, without limitation, such a Change in Control shall be
deemed to have occurred if after the Effective Date (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities without
the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining such percentage
interest; (ii) the Corporation is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a consequence of which
members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter; or (iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or nomination for
election by the Corporation's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Corporation or of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the request of the
Company.
(c) "Disinterested Director" means a director of the Corporation who is
not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(d) "Effective Date" means January 1, 1997.
(e) "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being or preparing to be a witness in
a Proceeding.
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(f) "Indemnitee" includes any person who is, or is threatened to be made,
a witness in or a party to any Proceeding as described in Sections 8.2, 8.3,
8.4 or 8.5 by reason of his Corporate Status.
(g) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Corporation or
Indemnitee in any matter material to either such party, or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine Indemnitee's rights under
this Article.
(h) "Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 8.9 to enforce his rights under
this Article.
SECTION 8.15 NOTICES. Any notice, request or other communication required
or permitted to be given to the Corporation under this Article shall be in
writing and either delivered in person or sent by telex, telegram or certified
or registered mail, postage prepaid, return receipt requested, to the Secretary
of the Corporation and shall be effective only upon receipt by the Secretary.
SECTION 8.16 MISCELLANEOUS. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
ARTICLE IX
AMENDMENTS
These bylaws may be altered, amended or repealed, or new bylaws may be
adopted, at any regular meeting of the Board of Directors or at any special
meeting of the Board of Directors if notice of such alteration, amendment,
repeal, or adoption of new bylaws be contained in the notice of such special
meeting, without the necessity of a vote of the stockholders.
ARTICLE X
NOTICE
SECTION 10.1 NOTICE. Whenever, under any statutory provision or under the
provisions of the certificate of incorporation or these bylaws, notice is
required to be given to any director or
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stockholder, it shall not be construed to mean personal notice, but such notice
may also be given in writing, by first class United States mail, postage
prepaid, or by prepaid telegram and mail, addressed to such director or
stockholder at his address as it appears on the records of the Corporation, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail or, in the case of telegrams, when
transmitted.
SECTION 10.2 WAIVER OF NOTICE. Whenever any notice is required to be given
under any statutory provision or under the provisions of the certificate of
incorporation or these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
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