<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
AUGUST 13, 1996
DATE OF REPORT (DATE OF EARLIEST EVENT
REPORTED)
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WMX TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS
CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION)
1-7327 36-2660763
(COMMISSION FILE NUMBER) (IRS EMPLOYER
IDENTIFICATION NO.)
3003 BUTTERFIELD ROAD, OAK BROOK, ILLINOIS 60521
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(630) 572-8800
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
<PAGE>
Item 5. Other Events.
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On September 16, 1996 the registrant's 66%-owned Wheelabrator Technologies Inc.
subsidiary ("Wheelabrator") issued a news release announcing two transactions
between it and U.S. Filter Corporation ("U.S. Filter"). Wheelabrator and U.S.
Filter announced that they had reached an agreement in principle to establish an
equally-owned joint venture company to pursue opportunities in municipal and
industrial water and wastewater treatment operations, privatization and
outsourcing marketplace, and a definitive agreement for Wheelabrator to sell to
U.S. Filter for $385 million in cash all of Wheelabrator's industrial water
process, manufacturing and custom-engineered systems businesses. Revenues for
the businesses being sold to U.S. Filter are expected to be approximately $465
million for 1996. Wheelabrator reported that the cash generated by the asset
sale will be used for strategic core business investment, debt reduction and
share repurchases. The transactions are expected to be completed in the fourth
quarter of 1996.
On August 13, 1996 the registrant's Board of Directors amended the registrant's
By-laws to change certain time periods applicable to stockholder nominations for
directors and proposals and otherwise to clarify certain related matters with
respect to stockholder meetings. In order for a stockholder to nominate a
candidate for director, timely notice of the nomination must be received by the
registrant in advance of the meeting. Ordinarily, such notice must be received
not less than 90 nor more than 120 days before the anniversary date of the
immediately preceding annual meeting, but if the registrant calls for the annual
meeting to be held on a date that is not within 30 days before or after such
anniversary date, then such notice must be received not later than 10 days after
notice of the meeting is mailed or other public disclosure of the meeting is
made. The stockholder filing the notice of nomination must describe various
matters regarding the nominee and the stockholder giving the notice, including
such information that is required to be disclosed pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended, and the regulations thereunder. In
order for a stockholder to bring other business before a stockholder meeting,
timely notice must be received by the registrant within the time limits
described above. Such notice must include a description of the proposed
business, the reasons therefor, and other specific matters, and various matters
regarding the stockholder giving the notice.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
-------------------------------------------------------------------
The exhibit filed as part of this report is listed in the Exhibit Index
hereto.
-2-
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WMX TECHNOLOGIES, INC.
By: /s/ Thomas A. Witt
----------------------
Thomas A. Witt
Vice President
Dated: September 19, 1996
-3-
<PAGE>
WMX TECHNOLOGIES, INC.
EXHIBIT INDEX
Number and Description of Exhibit*
----------------------------------
1. None
2. None
3. By-laws of registrant, as amended and restated as of August 13, 1996.
4. None
16. None
17. None
20. None
23. None
24. None
27. None
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* Exhibits not listed are inapplicable.
<PAGE>
WMX TECHNOLOGIES, INC.
--------------------------
BY-LAWS
--------------------------
AMENDED AND RESTATED AS OF: August 13, 1996
<PAGE>
ARTICLE I
OFFICES
SECTION 1. DELAWARE OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER 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 the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders for the
election of directors shall be held in the Village of Oak Brook, State of
Illinois, at such place as may be fixed from time to time by the board of
directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the board of directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
SECTION 2. ANNUAL MEETINGS. Annual meetings of stockholders shall be
held on the second Friday in May if not a legal holiday, and if a legal holiday,
then on the next business day following, at 10:00 a.m., or at such other date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which the stockholders shall elect
directors as provided in the restated certificate of incorporation, and transact
such other business as may properly be brought before the annual meeting (a) in
accordance with applicable statutes, (b) by or at the direction of the board of
directors or (c) by any stockholder (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 2 and on the
record date for the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the procedures set forth in this
Section 2. For business properly to be brought before an annual meeting of
stockholders by a
<PAGE>
stockholder pursuant to this Section 2, the stockholder must have given timely
notice thereof in proper written form to the secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than ninety (90)
days nor more than one hundred twenty (120) days prior to the anniversary date
of the immediately preceding annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public announcement of the
date of the annual meeting was made, whichever first occurs. In no event shall
the public announcement of an adjournment or postponement of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. To be in proper written form, a stockholder's notice to the secretary
shall set forth in writing as to each matter the stockholder proposes to bring
before the annual meeting: (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting; (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business; (iii) the class
and number of shares of capital stock of the Corporation which are owned by the
stockholder as of the record date for the annual meeting; (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of the stockholder in
such business; and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting. The chairman of the annual meeting shall have the sole authority to
determine whether business was properly brought before the annual meeting in
accordance with the provisions of this Section 2 and, if the chairman should
determine that such business was not so properly brought, he or she shall so
declare to the annual meeting, and any such business not properly brought before
the annual meeting shall not be transacted. For purposes of this Section 2,
"public announcement" shall mean disclosure in a press release issued to one or
more national financial or general news services, including without limitation
the Dow Jones News Service or Associated Press, or in a document publicly filed
by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
<PAGE>
SECTION 3. ANNUAL MEETING NOTICE. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than 60
days before the date of the meeting.
SECTION 4. STOCKHOLDER MEETING LIST. The secretary of the Corporation
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present for any purpose
germane to the meeting.
SECTION 5. INSPECTORS. The board of directors shall, in advance of any
meeting of stockholders, appoint one or more inspectors of election and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If any inspector or alternate so appointed shall be unwilling
or unable to serve, the chairman of the meeting shall appoint the necessary
inspector or inspectors. The inspectors so appointed, before entering upon the
discharge of their duties, shall be sworn faithfully to execute the duties of
inspectors with strict impartiality and according to the best of their ability,
and the oath so taken shall be subscribed by them. Such inspectors shall: (a)
determine the number of shares of capital stock of the Corporation outstanding
and the voting power of each; (b) determine the shares represented at the
meeting, the existence of a quorum, and the validity of proxies and ballots; (c)
count and tabulate all votes and ballots; (d) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors; (e) certify their determination of the number
of shares represented at the meeting and their count of all votes and ballots;
and (f) do such acts as are proper to conduct the election or vote with fairness
to all stockholders. The date and time of the opening and closing of the polls
for each matter upon which stockholders will vote at a meeting shall be
announced at the meeting, and no ballots, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls. No director or
<PAGE>
candidate for the office of director shall act as an inspector of election of
directors. Inspectors need not be stockholders.
SECTION 6. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
restated certificate of incorporation, may be called by the chairman of the
board, the president or the secretary or by resolution of the board of
directors, subject to the provisions of Article Sixth of the restated
certificate of incorporation, and shall be called by the chairman of the board,
president or secretary at the request in writing of a majority of the board of
directors, subject to the provisions of Article Sixth of the restated
certificate of incorporation.
SECTION 7. SPECIAL MEETING NOTICE. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten nor more than 60
days before the date of the meeting to each stockholder entitled to vote at such
meeting.
SECTION 8. SPECIAL MEETING PURPOSE. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
SECTION 9. 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
restated 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
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
<PAGE>
SECTION 10. VOTING. (a) 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 (other than the
election of directors) brought before such meeting, unless the question is one
upon which by express provision of the General Corporation Law of the State of
Delaware or of the restated certificate of incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
(b) Each share of common stock shall entitle the holder thereof to one
vote, in person or by proxy, at any and all meetings of the stockholders of the
Corporation, on all propositions before the meeting. No proxy shall be voted or
acted upon after three years from its date unless the proxy provides for a
longer period.
SECTION 11. MEETING PROCEDURE. The chairman of any meeting of
stockholders shall have full and complete authority over matters of procedure
and there shall be no appeal from the ruling of the chairman. If disorder or any
other event should arise which prevents continuation of the legitimate business
of the meeting, the chairman may announce the adjournment of the meeting; and
upon his or her doing so, the meeting is immediately adjourned. The chairman may
ask or require anyone who is not a bona fide stockholder or holder of a valid
proxy, or who is disrupting or inhibiting the orderly conduct of the meeting, to
leave the meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. NUMBER. The number of directors which shall constitute the
whole board shall be twelve. Only directorships with terms expiring in any year
(as provided in Article Fifth of the restated certificate of incorporation)
shall be filled at the annual meeting of stockholders in that year. Directors
shall be at least 21 years of age and need not be stockholders.
SECTION 2. ELECTION, TERM AND VACANCIES. At each meeting of
stockholders for the election of directors at which a quorum is present, the
persons receiving a plurality of the votes cast shall be elected directors. Each
director shall serve until the annual meeting of stockholders for the year in
which his
<PAGE>
term expires and until his successor is duly elected and qualified, subject,
however, to his prior death, retirement, resignation or removal for cause.
Should a vacancy occur or be created, whether arising through death, retirement,
resignation or removal of a director for cause, or through an increase in the
number of directors of any class, such vacancy shall be filled by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director. A director so elected to fill a vacancy shall serve for the
then present term of office of the class of directors to which he was elected.
Subject to the provisions of Article IX of these by-laws, if there are no
directors in office, then an election may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
SECTION 3. NOMINATIONS. Nominations for any election of a director may
be made by the board of directors, a committee appointed by the board or by any
stockholder entitled to vote generally in the election of directors (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 3 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the
procedures set forth in this Section 3. All nominations by stockholders must be
made pursuant to timely notice in proper written form to the secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
ninety (90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on which
such notice of the date of the annual meeting was mailed or such public
announcement of the date of the annual meeting was made, whichever first occurs.
In no event shall the public announcement of an adjournment or postponement of
an annual meeting commence a new time period for the giving of a stockholder's
notice as described above. To be in proper written form, such stockholder's
notice
<PAGE>
shall set forth in writing (a) as to each person whom the stockholder proposes
to nominate for election or reelection as a director, all information relating
to such person that is or would be required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder and such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected; and (b) as
to the stockholder giving the notice (i) the name and address, as they appear on
the Corporation's books, of such stockholder, (ii) the class and number of
shares of the Corporation which are beneficially owned by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such stockholder that is or would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Notwithstanding anything in this Section 3 to the
contrary, in the event that the number of directors to be elected to the board
of directors of the Corporation is increased and there is no public announcement
by the Corporation naming all of the nominees for director or specifying the
size of the increased board of directors at least seventy (70) days prior to the
first anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 3 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation. At the request of the board of directors, any person nominated by
the board, or a committee appointed by the board, for election as a director
shall furnish to the secretary of the Corporation the information required to be
set forth in a stockholder's notice of nomination which pertains to the nominee.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the procedures
prescribed by this Section 3, and the defective nomination shall thereupon be
disregarded. For purposes of this Section 3, "public announcement" shall mean
disclosure in a press release issued to one or more national financial or
general news services, including without limitation the Dow Jones News Service
or Associated Press,
<PAGE>
or in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
SECTION 4. POWERS. The business of the Corporation shall be managed by
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 restated
certificate of incorporation or by these by-laws directed or required to be
exercised or done by the stockholders.
SECTION 5. PLACE OF MEETINGS. The board of directors of the
Corporation and committees thereof may hold meetings, both regular and special,
either within or without the State of Delaware.
SECTION 6. REGULAR MEETINGS. Regular meetings of the board of
directors or any committee thereof may be held without notice at such time and
at such place as shall from time to time be determined by the board or such
committee.
SECTION 7. SPECIAL MEETINGS. Special meetings of the board or
committees thereof may be called by the chairman of the board or, in the case of
a committee meeting, by the committee chairman on one day's notice to each
director, either personally or by mail, telegram, telex, or facsimile
transmission; special meetings of the board shall be called by the chairman of
the board or secretary in like manner and on one day's notice on the written
request of two directors.
SECTION 8. QUORUM. At all meetings of the board 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 restated 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 9. WRITTEN CONSENT. Unless otherwise restricted by the
restated certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the board or
<PAGE>
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board or committee.
SECTION 10. TELEPHONIC MEETINGS. Unless otherwise restricted by the
restated certificate of incorporation, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
SECTION 11. COMMITTEES. 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 two or more of the directors of the Corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee, provided, however, that in the event of the absence or
disqualification of any member and alternate member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member or alternate
member. Any such committee, to the extent provided in the resolution designating
such committee and not limited by the General Corporation Law of the State of
Delaware, 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,
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. A resolution passed by a majority of the whole board which designates
a committee or committees as provided above may be amended or repealed only by a
majority of the whole board. Unless its authorizing resolution otherwise
specifies, two members of a committee shall be required to constitute a quorum,
except that only one member shall be required in the case of any committee
having only one member.
SECTION 12. COMMITTEE MINUTES. Each committee shall keep regular
minutes of its meetings and report the same to the board of directors when
required.
<PAGE>
SECTION 13. COMPENSATION. The directors may be paid their expenses if
any, of attendance at each meeting of the board of directors and may be paid a
fixed sum for attendance at each meeting of the board of directors, a stated
salary as director, or any combination thereof. 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 expenses and compensation for attending committee meetings.
SECTION 14. RESIGNATION. A resignation of a director shall be
effective upon receipt by the chairman of the board of a signed written notice
of such resignation, or, should such notice contain a specified date of
resignation, at such specified date. No acceptance by the board of directors is
required for such resignation to be effective.
ARTICLE IV
NOTICES
SECTION 1. FORM AND TIMING. Whenever any notice is required to be
given to any director or stockholder pursuant to the provisions of the General
Corporation Law of the State of Delaware, the restated certificate of
incorporation, these by-laws or the resolutions or other governing provisions of
a committee of the board of directors, it shall not be construed to mean
personal notice, 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, and such notice shall be deemed to be
given on the second business day next following the day when the same shall be
deposited in the United States mail. Notice to a director may also be given by
telegram addressed to such director at such address, and such notice shall be
deemed to be given on the business day next following the day of the delivery of
such notice for transmission to such director. Notice to a director may also be
given by telex or facsimile transmission to such number as shall appear on the
records of the Corporation as the number of such director and shall be deemed to
be given on the day of transmission.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the General Corporation Law of the State of
Delaware, the restated certificate of incorporation, these by-laws or the
resolutions or other governing provisions of a committee of the board of
directors, a
<PAGE>
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. Attendance by a person at a meeting shall constitute a
waiver of the required notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
<PAGE>
ARTICLE V
OFFICERS
SECTION 1. NUMBER AND QUALIFICATIONS. The officers of the Corporation
shall be chosen by the board of directors and shall be a chairman of the board,
a president, one or more vice presidents (the number and designation thereof to
be determined by the board of directors), a secretary, a treasurer, a
controller, a general counsel, and such assistant secretaries, assistant
treasurers or other officers, including, without limitation, one or more vice
chairmen of the board, as may be elected or appointed by the board of directors.
Any number of offices may be held by the same person, unless the restated
certificate of incorporation or these by-laws otherwise provide.
SECTION 2. ANNUAL ELECTION. The board of directors, at its meeting
held in conjunction with or after each annual meeting of stockholders, shall
choose a chairman of the board, a president, one or more vice presidents, a
secretary, a treasurer, a controller, a general counsel and may choose one or
more vice chairmen of the board, assistant officers or other officers as it may
deem advisable.
SECTION 3. APPOINTMENT OF OTHER OFFICERS. 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. COMPENSATION. The salaries and other compensation of all
officers (other than assistant officers, unless the board otherwise determines)
and agents of the Corporation elected by the board shall be as fixed by the
board of directors.
SECTION 5. TERM, REMOVAL AND VACANCIES. The officers of the
Corporation shall hold office until their successors are chosen and qualify. Any
officer or agent elected or appointed by the board of directors may be removed
at any time by the affirmative vote of a majority of the whole board. Any
vacancy occurring in any office of the Corporation shall be filled by the board
of directors.
SECTION 6. CHAIRMAN OF THE BOARD. The chairman of the board shall
preside at all meetings of the stockholders and the board of directors. He or
she may sign certificates for shares of the Corporation
<PAGE>
and any deeds, mortgages, bonds, contracts or other instruments which the board
of directors has authorized to be executed, whether or not under the seal of the
Corporation, except in cases where the signing and execution thereof shall be
expressly delegated by the board of directors or by these by-laws to some other
officer or agent of the Corporation. The chairman of the board shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
SECTION 7. VICE CHAIRMAN (OR VICE CHAIRMEN) OF THE BOARD. In the
absence of the chairman of the board or in the event of his or her inability or
refusal to act, the vice chairman of the board, if any (or in the event there
may be more than one vice chairman of the board, the vice chairman of the board,
in the order designated, or in the absence of any designation, then in the order
of their election), shall perform the duties of the chairman of the board, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the chairman of the board. He or she may sign certificates for
shares of the Corporation and any deeds, mortgages, bonds, contracts, or other
instruments which the board of directors has authorized to be executed, whether
or not under the seal of the Corporation, except in cases where the signing and
execution thereof shall be expressly delegated by the board of directors or by
these by-laws to some other officer or agent of the Corporation. The vice
chairmen of the board shall perform such other duties and have such other powers
as the board of directors or the chairman of the board may from time to time
prescribe.
SECTION 8. PRESIDENT. The president shall be the chief executive
officer of the Corporation. He or she shall have responsibility for the general
and active management of the business of the Corporation and shall see that all
orders and resolutions of the board of directors are carried into effect. He or
she may sign certificates for shares of the Corporation and any deeds,
mortgages, bonds, contracts or other instruments which the board of directors
has authorized to be executed, whether or not under the seal of the Corporation,
except in cases where the signing and execution thereof shall be expressly
delegated by the board of directors or by these by-laws to some other officer or
agent of the Corporation. In the absence of the chairman of the board and the
vice chairman (or, if there be more than one, the vice chairmen) of the board,
or in the event of their inability or refusal to act, the president shall
perform the duties of the chairman of the board, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the chairman of
the board. The president shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
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SECTION 9. VICE PRESIDENTS. In the absence of the president or in the
event of his or her inability or refusal to act, the vice president (or in the
event there be more than one vice president, the vice presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. A vice president who is appointed as such with respect to a
particular area of responsibility or function of the Corporation shall, subject
to the authority of the chairman and the president, perform all duties and have
all authority pertaining to the general and active management of such area or
function and shall see that all orders and resolutions of the board of directors
pertaining to such area or function are carried into effect. The vice presidents
shall perform such other duties and have such other powers as the board of
directors, the chairman of the board or the president may from time to time
prescribe.
SECTION 10. SECRETARY. The secretary shall: (a) keep the minutes of
stockholders, board of directors and board of directors committee meetings in
one or more books provided for the purpose; (b) see that all notices are duly
given in accordance with the provisions of these by-laws or as required by law;
(c) be custodian of the corporate records and of the seal of the Corporation and
see that the seal of the Corporation is affixed to all documents, the execution
of which on behalf of the Corporation under its seal is necessary or desirable;
(d) keep or cause to be kept a register of the mailing address of each
stockholder which shall be furnished to the secretary or any transfer agent of
the Corporation by such stockholder; (e) have authority to sign with the
chairman of the board, a vice chairman of the board, the president, or a vice
president, certificates for shares of the Corporation, the issue of which shall
have been authorized by resolution of the board of directors; (f) have general
charge of the stock transfer books of the Corporation; (g) attest to the
genuineness of the signature on behalf of the Corporation of any officer or
agent of the Corporation on any deeds, mortgages, bonds, contracts or other
instruments; (h) certify the authenticity of any instrument or record of the
Corporation; and (i) in general perform all duties incident to the office of
secretary and such other duties as the board of directors, the chairman of the
board or the president may from time to time prescribe.
SECTION 11. TREASURER. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the board of directors shall
determine. He or she shall: (a) have charge and custody of and be responsible
for all
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funds and securities of the Corporation, and the deposit of all moneys in the
name of the Corporation in such banks, trust companies or other depositaries as
shall be selected in accordance with resolutions of the board of directors; (b)
have authority to sign with the chairman of the board, a vice chairman of the
board, the president or a vice president, certificates for shares of the
Corporation, the issue of which shall have been authorized by resolution of the
board of directors; and (c) in general perform all the duties incident to the
office of treasurer and such other duties as the board of directors, the
chairman of the board or the president may from time to time prescribe.
SECTION 12. CONTROLLER. The controller shall be the principal
accounting officer of the Corporation and shall supervise the preparation and
maintenance, on a current basis, of such accounting books, records and reports
as may be necessary for directors, officers and employees of the Corporation to
discharge their duties or as may be required by law. In general he or she shall
perform all duties incident to the office of controller and other duties as the
board of directors, the chairman of the board or the president may from time to
time prescribe.
SECTION 13. GENERAL COUNSEL. The general counsel shall be the chief
legal adviser of the Corporation as to all matters affecting the Corporation or
its business. In general he or she shall perform all the duties incident to the
office of general counsel and such other duties as the board of directors, the
chairman of the board or the president may from time to time prescribe.
Section 14. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries as thereunto authorized by the board of directors may sign
with the chairman of the board, a vice chairman of the board, the president, or
a vice president certificates for shares of the Corporation, the issue of which
shall have been authorized by a resolution of the board of directors, may attest
to the genuineness of the signature on behalf of the Corporation of any officer
or agent of the Corporation on any deeds, mortgages, bonds, contracts or other
instruments and may certify the authenticity of any instrument or record of the
Corporation. The assistant treasurers may sign with the chairman of the board, a
vice chairman of the board, the president or a vice president, certificates for
shares of the Corporation, the issue of which shall have been authorized by
resolution of the board of directors. The assistant treasurers shall
respectively, if required by the board of directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the board of
directors shall determine. The
<PAGE>
assistant secretaries and assistant treasurers in general shall perform such
duties as from time to time may be prescribed by the secretary or the treasurer,
respectively, or by the board of directors, the chairman of the board or the
president.
ARTICLE VI
CAPITAL STOCK
SECTION 1. CERTIFICATES. 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 chairman or a vice chairman of the board, the president or a
vice president, and by the treasurer or an assistant treasurer, or the secretary
or an assistant secretary of the Corporation, representing the number of shares
owned by him or her in the Corporation. The board of directors may by
resolution, subject to applicable provisions of the General Corporation Law of
the State of Delaware, determine that some or all of any or all classes or
series of stock shall be uncertificated shares.
SECTION 2. FACSIMILE SIGNATURES. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 3. LOST CERTIFICATES. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificates to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his or
her legal representative, to advertise the same in such manner as it shall
require and/or to give the Corporation bond in such sum as it may direct as
indemnity or otherwise indemnify the Corporation against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
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SECTION 4. TRANSFERS OF STOCK. 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, assignment or authority to
transfer, and upon delivery to the Corporation or the transfer agent of the
Corporation of proper evidence of succession, assignment or authority to
transfer any uncertificated shares of the Corporation, it shall be the duty of
the Corporation to issue a new certificate to the person entitled thereto and
cancel the old certificate, if the shares are represented by a certificate, and
record the transaction upon its books.
SECTION 5. RECORD DATES. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
SECTION 6. 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, to vote as such owner and to receive
notices in respect of meetings of stockholders and other matters, 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 General Corporation
Law of the State of Delaware.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the restated certificate of
incorporation, if any, may be declared by the board of directors
<PAGE>
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 restated certificate of incorporation.
SECTION 2. RESERVES. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums 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 3. CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate or as may be
designated pursuant to procedures approved by the board of directors.
SECTION 4. FISCAL YEAR. The fiscal year of the Corporation begins on
the first day of January and ends on the last day of December in each calendar
year.
SECTION 5. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed, affixed or otherwise reproduced.
SECTION 6. INDEMNIFICATION. Each person who at any time is or shall
have been a director, officer or employee of the Corporation, or is or shall
have been serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
enterprise, and his or her heirs, executors and administrators, shall be
indemnified by the Corporation in accordance with and to the full extent
authorized by the General Corporation Law of the State of Delaware, as may be
amended from time to time. The foregoing right of indemnification shall not be
deemed exclusive of other rights to which any director, officer, employee, agent
or other person may be entitled in any capacity as a matter of law or under any
by-law, agreement, vote of stockholders or directors, or otherwise. The
Corporation shall have power to purchase and maintain insurance on behalf
<PAGE>
of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation, as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against or
incurred by him or her in any such capacity, or arising out of his or her status
as such, whether or not the Corporation would have the power to indemnify him or
her against such liability under the provisions of this by-law or the General
Corporation Law of the State of Delaware.
ARTICLE VIII
AMENDMENTS
SECTION 1. These by-laws may be altered, amended or repealed, or new
by-laws may be adopted, by the stockholders or by the board of directors if such
business is properly brought before any regular meeting of the stockholders or
of the board of directors or at any special meeting of the stockholders or of
the board of directors if, in the case of a special meeting, notice of such
alteration, amendment, repeal or adoption of new by-laws is contained in the
notice of such special meeting.
ARTICLE IX
EMERGENCY BY-LAWS
SECTION 1. EMERGENCY MANAGEMENT COMMITTEE. The board of directors, by
resolution, may provide for an Emergency Management Committee and appoint or
designate the manner in which membership of the Committee shall be determined.
To the extent provided in said resolution, such Committee shall have and may
exercise the powers of the board of directors in the management of the business
and affairs of the Corporation, and shall thereby be deemed to constitute the
board of directors of the Corporation, only during any interval commencing when
the board of directors shall be unable to function by reason of vacancies
occurring due to death, incapacity or catastrophe or other similar emergency
condition and there shall be no member or members of the board remaining and
able to fill such vacancies pursuant to Section 2 of Article III hereof and
terminating when a board of directors has been elected by the stockholders of
the Corporation and shall have been duly qualified. Notwithstanding the
foregoing, such Committee shall, during the time it is authorized to function as
provided herein, have
<PAGE>
the power to appoint such temporary officers to fill existing vacancies as the
circumstances may require and to authorize the seal of the Corporation to be
affixed to all papers which may require it.
SECTION 2. MEETINGS, QUORUM AND VACANCIES. The Emergency Management
Committee shall meet as promptly as possible after the occurrence of the event
herein described which would activate the Committee and at such subsequent time
or times as it may designate until a board of directors has been duly elected by
the stockholders and qualified. Such Committee shall make its own rules of
procedure except to the extent otherwise provided by resolution of the board. A
majority of the Committee shall constitute a quorum. Any vacancy occurring in
said Committee caused by resignation, death or other incapacity shall be filled
by a majority of the remaining members of the Committee and any member so chosen
shall serve until a board of directors has been duly elected by the stockholders
and qualified.
SECTION 3. POWERS OF CHAIRMAN. During such times as the Emergency
Management Committee shall be required to function pursuant to the provisions
hereof, the chairman of said Committee shall function as and have the powers of
the chief executive officer of the Corporation and shall preside at all meetings
of the stockholders and the Emergency Management Committee. The chairman of the
Emergency Management Committee shall have and exercise, subject to the direction
of the Emergency Management Committee, general charge and supervision over the
business and affairs of the Corporation.
SECTION 4. OTHER BY-LAW PROVISIONS. To the extent not inconsistent
with the provisions of this Article IX, all other provisions of these by-laws
shall remain in effect during the interval in which the Emergency Management
Committee shall be required to function pursuant to the provisions hereof.
