SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
MarketSpan Corporation
(Exact Name of Registrant as Specified in Its Charter)
New York [11-3431358]
(State of Incorporation or Organization) (I.R.S. Employer
Identification no.)
175 East Old Country Road, Hicksville, New York 11801
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A(c), please check the following box: [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A(d), please check the following box: [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
To be registered Class is to be registered
---------------- -------------------------
Common Stock Par Value $0.01 Per Share New York Stock Exchange
Preferred Stock, Series AA, Pacific Exchange
Par Value $25 Per Share
Securities to be registered pursuant to Section 12(g) of the Act: NONE
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The information required by Item 202 of Regulation S-K is contained in the
Registration Statement on Form S-4 (File No. 333-30353) of BL Holding Corp.,
which corporation is now known as MarketSpan Corporation (the "Corporation"),
filed with the Securities and Exchange Commission on June 30, 1997, as amended,
under the caption "Description of Capital Stock," which is incorporated herein
by reference.
Item 2. EXHIBITS
*1. Certificate of Incorporation dated April 15, 1998 and Amendment to
Certificate of Incorporation dated May 21, 1998 of the Corporation.
*2. By-Laws of the Corporation; and
*3. Specimen certificate representing shares of the Corporation's Common
Stock, par value $0.01 per share, which is being registered herewith.
- ----------------
*Filed Herewith
-1-
<PAGE>
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.
MarketSpan Corporation
By:/S/ Joseph E. Fontana
------------------------
Joseph E. Fontana
Vice President and Controller
Date: May 26, 1998
-2-
EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF
BL HOLDING CORP.
UNDER SECTION 402 OF THE
BUSINESS CORPORATION LAW OF THE STATE OF NEW YORK
I, Thomas D. Balliett, being a natural person over the age of 18
years, for the purpose of forming a corporation pursuant to Section 402 of the
New York Business Corporation Law (the "NYBCL"), do hereby certify as follows:
ARTICLE I
NAME
The name of the corporation (the "Corporation") is "BL Holding Corp."
ARTICLE II
PURPOSE
The purposes for which the Corporation is formed are to engage in
any lawful act or activity for which corporations may be organized under the
NYBCL, but the Corporation is not formed to engage in any act or activity
requiring the consent or approval of any state official, department, board,
agency or other body without such consent or approval first being obtained.
ARTICLE III
OFFICE
The office of the Corporation is to be located in the County of
Nassau, State of New York.
ARTICLE IV
CAPITAL STOCK
SECTION 1. The aggregate number of shares which the Corporation
shall have authority to issue shall be 450,000,000 shares of Common Stock, par
value $.01 per share and 100,000,000 shares of Preferred Stock, par value $.01
per share.
- 1 -
KL2:249558.1
<PAGE>
SECTION 2. The amount of capital stock of the Corporation shall be
$5,500,000.
SECTION 3. Shares of Preferred Stock may be issued from time to time
in one or more series as may be determined from time to time by the Board of
Directors. Except in respect of the particulars to be fixed by the Board of
Directors as provided below, all shares of Preferred Stock shall be of equal
rank. All shares in any one series of Preferred Stock shall be alike in every
particular except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall be cumulative. The
voting rights, if any, of each such series and the preferences and relative,
participating, optional and other special rights of each series and the
qualifications, limitations and restrictions thereof, if any, may differ from
those of any and all other series. The Board of Directors shall have the
authority to fix by resolution duly adopted prior to the issuance of any shares
of a particular series of Preferred Stock designated by the Board of Directors,
the voting rights, if any, of the holders of shares of such series and the
designations, preferences and relative, participating, optional and other
special rights of each series and the qualifications, limitations and
restrictions thereof (the "Preferred Stock Designation").
Without limiting the generality of the foregoing authority of the Board of
Directors, the Board of Directors from time to time may:
a. establish and designate a series of Preferred Stock, which may be
distinguished by number, letter or title from other Preferred Stock of the
Corporation or any series thereof;
b. fix and thereafter increase or decrease (but not below the number of
shares thereof then outstanding) the number of shares that shall constitute
such series;
c. provide for dividends on shares of such series and if provision is made
for dividends, determine the dividend rate and the dates on which
dividends, if declared, shall be payable, whether the dividends shall be
cumulative and, if cumulative, for what date or dates dividends shall
accrue, and the other conditions, if any, including rights of priority, if
any, upon which the dividends shall be paid;
d. provide as to whether the shares of such series shall be redeemable,
and if redeemable, the terms, limitations and restrictions with respect to
such redemption, including without limitation, the manner of selecting
shares for redemption if less than all shares are to be redeemed, the time
or times and the price or prices at which the shares of such series shall
be subject to redemption, in whole or in part, and the amount, if any, in
addition to any accrued dividends thereon which the holders of shares of
any series shall be entitled to receive upon the redemption thereof, which
amount may vary at different redemption dates and may be different with
respect to shares redeemed through the operation of any purchase,
retirement or sinking fund and with respect to shares otherwise redeemed;
- 2 -
KL2:249558.1
<PAGE>
e. fix the amount, in addition to any accrued dividends thereon, which the
holders of shares of such series shall be entitled to receive upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, which amount may vary at different dates and may vary
depending on whether such liquidation, dissolution or winding up is
voluntary or involuntary, and to determine any other rights, if any, to
which holders of the shares of such series shall be entitled in the event
of any liquidation, dissolution or winding up of the Corporation;
f. establish whether the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund and if so, the terms,
limitations and restrictions with respect thereto, including without
limitation, whether such purchase, retirement or sinking fund shall be
cumulative or noncumulative, the extent to and the manner in which such
funds shall be applied to the purchase, retirement or redemption of the
shares of such series for retirement or to other corporate purposes and
the terms and provisions relative to the operation thereof;
g. determine the extent of the voting rights, if any, of the shares of such
series and determine whether the shares of such series having voting rights
shall have multiple votes per share;
h. provide whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or classes of capital
stock of the Corporation, including Common Stock, Preferred Stock or of
any series thereof, and if convertible or exchangeable, establish the
conversion or exchange price or rate, the adjustments thereof, and the
other terms and conditions, if any, on which such shares shall be
convertible or exchangeable; and
i. provide for any other preferences, any relative participating,
optional or other special rights, any qualifications, limitations or
restrictions thereof, or any other term or provision of shares of such
series as the Board of Directors may deem appropriate or desirable.
Shares of Preferred Stock may be issued by the Corporation for such
consideration as is determined by the Board of Directors.
SECTION 4. The Common Stock shall be subject to the express terms of
the Preferred Stock and any series thereof. The holders of shares of Common
Stock shall be entitled to one vote for each such share upon all proposals
presented to the shareholders on which the holders of Common Stock are entitled
to vote. Except as otherwise provided by law or by the resolution or resolutions
adopted by the Board of Directors designating the rights, powers and preferences
of any series of Preferred Stock, the Common Stock shall have the exclusive
right to vote for the election of Directors and for all other purposes, and
holders of Preferred Stock shall
- 3 -
KL2:249558.1
<PAGE>
not be entitled to receive notice of any meeting of shareholders at which they
are not entitled to vote. The number of authorized shares of Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the
outstanding shares of Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to any Preferred Stock Designation.
The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
ARTICLE V
SHAREHOLDER ACTION
Any action required or permitted to be taken by the shareholders of
the Corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such holders.
Except as otherwise required by law and subject to the rights of the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of shareholders of the
Corporation for any purpose or purposes may be called only by the Board of
Directors pursuant to a resolution stating the purpose or purposes thereof
approved by a majority of the total number of Directors which the Corporation
would have if there were no vacancies (the "Whole Board") and any power of
shareholders to call a special meeting is specifically denied. No business other
than that stated in the notice shall be transacted at any special meeting.
ARTICLE VI
ELECTION OF DIRECTORS
Unless and except to the extent that the By-Laws of the Corporation
shall so require, the election of Directors of the Corporation need not be by
written ballot.
ARTICLE VII
BOARD OF DIRECTORS
SECTION 1. NUMBER, ELECTION AND TERMS. Except as otherwise fixed by
or pursuant to the provisions of Article IV hereof relating to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional Directors under
specified circumstances, the number of the Directors of the Corporation shall be
fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the Whole Board. No decrease in the number of Directors, however,
shall shorten the term of any incumbent Director. Directors shall be elected by
the shareholders of the Corporation
- 4 -
KL2:249558.1
<PAGE>
at their annual meeting except as herein otherwise provided for newly created
directorships and vacancies, to serve for one year or until their successors are
elected or chosen and qualified.
SECTION 2. SHAREHOLDER NOMINATION OF DIRECTOR CANDIDATES;
SHAREHOLDER PROPOSAL OF BUSINESS. Advance notice of shareholder nominations for
the election of Directors and of the proposal of business by shareholders shall
be given in the manner provided in the ByLaws of the Corporation, as amended and
in effect from time to time.
SECTION 3. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as
otherwise provided for or fixed by or pursuant to the provisions of Article IV
hereof relating to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect Directors under specified circumstances, newly created directorships
resulting from any increase in the number of Directors and any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal
or other cause shall be filled by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum of the Board
of Directors, and not by the shareholders. Any Director elected in accordance
with the preceding sentence shall hold office for the remainder of such
unexpired term or until such Director's successor shall have been duly elected
and qualified. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of any incumbent Director.
SECTION 4. REMOVAL. Subject to the rights of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect Directors under specified circumstances, any Director may
be removed from office only for cause by the affirmative vote of the holders of
at least a majority of the voting power of all shares of the Corporation
entitled to vote generally in the election of Directors (the "Voting Stock")
then outstanding, voting together as a single class.
SECTION 5. AMENDMENT, REPEAL, ETC. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the voting power of all Voting Stock then
outstanding, voting together as a single class, shall be required to alter,
amend, adopt any provision inconsistent with or repeal this Article VII.
ARTICLE VIII
BY-LAWS
The By-Laws may be altered or repealed and new By-Laws may be
adopted (1) at any annual or special meeting of shareholders, by the affirmative
vote of the holders of a majority of the voting power of the stock issued and
outstanding and entitled to vote thereat, provided, however, that any proposed
alteration or repeal of, or the adoption of any By-Law inconsistent with,
Section 2.2, 2.7 or 2.10 of Article II of the By-Laws or with Section 3.9 or
3.11 of Article III of the By-Laws, by the shareholders shall require the
affirmative vote of the holders of at least
- 5 -
KL2:249558.1
<PAGE>
80% of the voting power of all Voting Stock then outstanding, voting together as
a single class; and provided, further, however, that in the case of any such
shareholder action at a special meeting of shareholders, notice of the proposed
alteration, repeal or adoption of the new By-Law or By-Laws must be contained in
the notice of such special meeting, or (2) by the affirmative vote of a majority
of the Whole Board; provided that any proposed alteration or repeal of, or the
adoption of any By-Law inconsistent with, Section 4.9 or 4.11 of the Article IV
of the By-Laws by the Board of Directors shall require the vote of two-thirds of
the Whole Board.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time from time to time to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
New York at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and, except as set forth in Articles XIV and XV,
all rights, preferences and privileges of whatsoever nature conferred upon
shareholders, Directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the Voting Stock then outstanding, voting
together as a single class, shall be required to alter, amend, adopt any
provision inconsistent with or repeal Article V, VII, VIII or this sentence.
ARTICLE X
AGENT FOR SERVICE OF PROCESS
The Secretary of State of the State of New York is designated as
agent of the Corporation upon whom process against the Corporation may be
served. The post office address to which the Secretary of State shall mail a
copy of any process against the Corporation served upon him is: c/o C T
Corporation System, 1633 Broadway, New York, New York 10019.
ARTICLE XI
REGISTERED AGENT
The name and address of the registered agent which is to be the
agent of the corporation upon whom process against it may be served, is CT
Corporation System, 1633 Broadway, New York, New York 10019.
- 6 -
KL2:249558.1
<PAGE>
ARTICLE XII
DURATION
The duration of the Corporation shall be perpetual.
ARTICLE XIII
NO PREEMPTIVE RIGHTS
The holders of equity shares and the holders of voting shares (as
each term is defined in Section 622 of the NYBCL) of the Corporation shall not
have any preemptive rights.
ARTICLE XIV
LIMITED LIABILITY; INDEMNIFICATION
SECTION 1. Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, or
appeal thereof, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a Director or officer
of the Corporation or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a Director, officer, employee or agent or in any
other capacity while serving as a Director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the NYBCL, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including, but not limited to, all attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a Director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; PROVIDED, HOWEVER, that, except
as provided in Section 2 of this Article XIV, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 1 shall be a contract right and shall
include the right to be paid by the Corporation the expenses (including, without
limitation, attorneys' fees) incurred in defending any such proceeding in
advance of its final disposition; PROVIDED, HOWEVER, that, if the NYBCL
requires, the payment of such expenses incurred by a Director or officer in his
or her capacity as a Director or officer (and not in any other capacity in which
service was or is rendered by such person while a Director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery
- 7 -
KL2:249558.1
<PAGE>
to the Corporation of an undertaking, by or on behalf of such Director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such Director or officer is not entitled to be indemnified under this
Article XIV or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of Directors and
officers, or on such other terms and conditions as the Board of Directors may
deem necessary or desirable.
SECTION 2. If a claim under Section 1 of this Article XIV is not
paid in full by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense (including, without limitation, attorneys' fees) of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the NYBCL for the Corporation to in
demnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, or any part thereof, independent legal
counsel, or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the NYBCL, nor an actual determination by the Corporation
(including its Board of Directors, or any part thereof, independent legal
counsel, or its shareholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
SECTION 3. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article XIV shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Law, agreement, vote of shareholders or disinterested
Directors or otherwise.
SECTION 4. The Corporation may maintain insurance, at its expense,
to protect itself and any Director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, to the fullest extent allowed
by law, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the NYBCL.
ARTICLE XV DIRECTOR LIABILITY
A Director of the Corporation shall not be personally liable to the
Corporation or
- 8 -
KL2:249558.1
<PAGE>
its shareholders for damages for any breach of duty in such capacity except that
the liability of a Director shall not be so limited if (1) a judgment or other
final adjudication adverse to him estab lishes that his acts or omissions were
in bad faith or involved intentional misconduct or a knowing violation of law or
that he personally gained in fact a financial profit or other advantage to which
he was not legally entitled or that his acts violated Section 719 of the NYBCL,
or (2) his acts or omissions occurred prior to the adoption of this provision.
No amendment to or repeal of this Article XV shall apply to or have any effect
on the liability or alleged liability of any Director of the Corporation for or
with respect to any acts or omissions of such Director occurring prior to such
amendment or repeal. If the NYBCL is amended hereafter to expand or limit the
liability of a director, then the liability of a Director of the Corporation
shall be expanded to the extent required or limited to the extent permitted by
the NYBCL, as so amended.
IN WITNESS WHEREOF, I have executed this Certificate of
Incorporation this 15th day of April, 1998.
/S/ THOMAS D. BALLIETT
----------------------
Thomas D. Balliett, Esq.
Incorporator
919 Third Avenue
New York, NY 10022
- 9 -
KL2:249558.1
<PAGE>
ACKNOWLEDGEMENT
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this 15 day of April, 1998, personally came before me Thomas D.
Balliett, a person known to me to be the person who executed the foregoing
Certificate of Incorporation, and he acknowledged that he signed said
Certificate of Incorporation and acknowledged the same as his free act and deed.
Given under my hand and seal the day and year first above written.
/s/ Judi Wasserman
------------------
Notary Public
[seal]
- 10 -
KL2:249558.1
<PAGE>
EXHIBIT 1
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BL HOLDING CORP.
Under Section 805 of the Business Corporation Law
of the State of New York
-----------
BL Holding Corp., a corporation organized and existing under the laws of
the State of New York (the "Corporation"), does hereby certify as follows:
FIRST: The name of the Corporation is BL Holding Corp.
SECOND: The certificate of incorporation of the Corporation was filed
by the New York Department of State on April 16, 1998.
THIRD: The certificate of incorporation is hereby amended to change
the name of the Corporation and to change the par value of the Preferred Stock
of the Corporation, each as authorized by the New York Business Corporation Law,
to wit:
Article I relating to the name of the Corporation is amended to read
in its entirety as follows:
"ARTICLE I
NAME
"The name of the corporation shall be: MarketSpan Corporation."
<PAGE>
Sections 1 and 2 of Article IV relating to the capital stock of the
Corporation are amended to read in their entirety as follows:
"SECTION 1. The aggregate number of shares which the
Corporation shall have the authority to issue shall be (i)
450,000,000 shares of Common Stock, par value $.01 per share, (ii)
16,000,000 shares of Preferred Stock, par value $25 per share, (iii)
1,000,000 shares of Preferred Stock, par value $100 per share and
(iv) 83,000,000 shares of Preferred Stock, par value $.01 per share.
SECTION 2. The amount of capital stock of the Corporation
shall be $505,330,000."
FOURTH: The foregoing amendments to the certificate of incorporation
were duly adopted by a Unanimous Written Consent of the Board of Directors of
the Corporation and by a Unanimous Written Consent of the shareholders of the
Corporation, in accordance with Section 803 of the New York Business Corporation
Law.
<PAGE>
IN WITNESS WHEREOF, the undersigned officers of the Corporation have
signed this Certificate of Amendment and each affirms that the statements made
herein are true under the penalties of perjury.
Dated: May 21, 1998
BL HOLDING CORP.
By: /s/ William J. Catacosinos
------------------------------
Name: Dr. William J. Catacosinos
Title: Chief Executive Officer
By: /s/ Kathleen Marion
-----------------------
Name: Kathleen Marion
Title: Secretary
EXHIBIT 2
BY-LAWS
OF
MARKETSPAN CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1. NEW YORK OFFICE. The office of the Corporation in the State of
New York shall be located in the County of Nassau.
SECTION 1.2. OTHER OFFICES. The Corporation may have such other
offices, either within or without the State of New York, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3. BOOKS AND RECORDS. The books and records of the
Corporation may be kept outside the State of New York at such place or places as
may from time to time be designated by the Board of Directors.
ARTICLE II
SHAREHOLDERS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the shareholders of the
Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors.
SECTION 2.2. SPECIAL MEETING. Except as otherwise required by law
and subject to the rights of the holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation, special
meetings of shareholders of the Corporation for any purpose or purposes may be
called only by the Board of Directors pursuant to a resolution stating the
purpose or purposes thereof approved by a majority of the total number of
Directors which the Corporation would have if there were no vacancies (the
"Whole Board").
SECTION 2.3. PLACE OF MEETING. The Board of Directors may designate
the place of meeting for any annual meeting or for any special meeting of the
shareholders. If no designation is so made, the place of meeting shall be the
principal office of the Corporation.
KL2:249556.1
<PAGE>
SECTION 2.4. NOTICE OF MEETING. Written or printed notice, stating
the place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than 10
calendar days nor more than 50 calendar days before the date of the meeting,
either personally or by mail, to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, addressed to
the shareholder at such person's address as it appears on the stock transfer
books of the Corporation. Such further notice shall be given as may be required
by law. Only such business shall be conducted at a special meeting of
shareholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Meetings may be held without notice if all
shareholders entitled to vote are present, or if notice is waived by those not
present in accordance with Section 6.4 of these By-Laws. Any previously
scheduled meeting of the shareholders may be postponed, and any special meeting
of the shareholders may be canceled, by resolution of the Board of Directors
upon public notice given prior to the date previously scheduled for such meeting
of shareholders.
SECTION 2.5. QUORUM AND ADJOURNMENT; VOTING. Except as otherwise
provided by law or by the Certificate of Incorporation, the holders of a
majority of the voting power of all outstanding shares of the Corporation
entitled to vote generally in the election of Directors (the "Voting Stock"),
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders, except that when specified business is to be voted on by a class
or series of stock voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum of such class or series for the
transaction of such business. The Chairman of the meeting may adjourn the
meeting from time to time, whether or not there is such a quorum. No notice of
the time and place of adjourned meetings need be given except as required by
law. The shareholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
SECTION 2.6. PROXIES. At all meetings of shareholders, a shareholder
may vote by proxy executed in writing (or in such manner prescribed by the New
York Business Corporation Law (the "NYBCL")) by the shareholder, or by such
person's duly authorized attorney in fact.
SECTION 2.7. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF SHAREHOLDERS. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the shareholders may be made at an annual meeting
of shareholders (a) pursuant to the Corporation's notice of meeting pursuant to
Section 2.4 of these By-Laws, (b) by or at the direction of the Board of
Directors or (c) by any shareholder of the Corporation who was a shareholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law.
KL2:249556.1
<PAGE>
(2) For nominations or other business to be properly brought before
an annual meeting by a shareholder pursuant to clause (c) of paragraph (A)(1) of
this By-Law, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must otherwise be a
proper matter for shareholder action. To be timely, a shareholder's notice shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th calendar day nor
earlier than the close of business on the 90th calendar day prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is more than 30 calendar days
before or more than 60 calendar days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the close of
business on the 90th calendar day prior to such annual meeting and not later
than the close of business on the later of the 60th calendar day prior to such
annual meeting or the 10th calendar day following the calendar day on which
public announcement of the date of such meeting is first made by the
Corporation. For purposes of determining whether a shareholder's notice shall
have been delivered in a timely manner for the annual meeting of shareholders in
199 , the first anniversary of the previous year's meeting shall be deemed to be
, 199 . In no event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a shareholder's notice as
described above. Such shareholder's notice shall set forth (a) as to each person
whom the shareholder proposes to nominate for election or reelection as a
Director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a Director if elected); (b) as to
any other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the shareholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law 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
70 calendar days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this By-Law 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 10th
calendar day following the day on which such public announcement is first made
by the Corporation.
KL2:249556.1
<PAGE>
(B) SPECIAL MEETINGS OF SHAREHOLDERS. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
shareholders at which Directors are to be elected pursuant to the Corporation's
notice of meeting (a) by or at the direction of the Board of Directors or (b)
provided that the Board of Directors has determined that Directors shall be
elected at such meeting, by any shareholder of the Corporation who is a
shareholder of record at the time of giving of notice provided for in this
By-Law, who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this By-Law. In the event the Corporation calls a
special meeting of shareholders for the purpose of electing one or more
Directors to the Board of Directors, any shareholder may nominate a person or
persons (as the case may be), for election to such position(s) as specified in
the Corporation's notice of meeting pursuant to clause (b) of the preceding
sentence, if the shareholder's notice complying with the requirements of clauses
(a) and (c) of paragraph (A)(2) of this By-Law shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than
the close of business on the 90th calendar day prior to such special meeting and
not later than the close of business on the later of the 60th calendar day prior
to such special meeting or the 10th calendar day following the day on which
public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareholder's notice as described
above.
(C) GENERAL. (1) Only such persons who are nominated in accordance
with the procedures set forth in this By-Law shall be eligible to serve as
Directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-Law and, if any proposed
nomination or business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights (i) of shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect Directors under an
applicable Preferred Stock Designation (as defined in the Certificate of
Incorporation).
KL2:249556.1
<PAGE>
SECTION 2.8. PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED VOTE.
Election of Directors at all meetings of the shareholders at which Directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any series of Preferred Stock to elect Directors under an applicable Preferred
Stock Designation, a plurality of the votes cast thereat shall elect Directors.
Except as otherwise provided by law, the Certificate of Incorporation, Preferred
Stock Designation, or these By-Laws, in all matters other than the election of
Directors, the affirmative vote of a majority of the voting power of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the matter shall be the act of the shareholders.
SECTION 2.9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS.
The Board of Directors by resolution shall appoint, or shall authorize an
officer of the Corporation to appoint, one or more inspectors, which inspector
or inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of shareholders and make a written
report thereof. One or more persons may be designated as alternate inspector(s)
to replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of shareholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging such person's duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such person's ability. The inspector(s) shall have the
duties prescribed by law. The Chairman of the meeting shall fix and announce at
the meeting the date and time of the opening and the closing of the polls for
each matter upon which the shareholders will vote at a meeting.
SECTION 2.10. NO SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action
required or permitted to be taken by the shareholders of the Corporation must be
effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors 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 By-Laws required to be exercised or done by the
shareholders. A Director of this Corporation need not be a shareholder therein.
SECTION 3.2. NUMBER AND TENURE. Except as otherwise fixed by or
pursuant to the provisions of Article IV of the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional Directors under specified circumstances, the
KL2:249556.1
<PAGE>
number of the Directors of the Corporation shall be fixed from time to time
exclusively pursuant to a resolution adopted by a majority of the Whole Board.
No decrease in the number of Directors, however, shall shorten the term of any
incumbent Director. Directors shall be elected by the shareholders of the
Corporation at their annual meeting, except as herein otherwise provided for
vacancies and newly created directorships, in the manner provided in Article II
hereof, to serve for one year or until their successors are elected or chosen
and qualified.
SECTION 3.3. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law immediately after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board, the
President or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.5. NOTICE. Notice of any special meeting of Directors
shall be given to each Director at such person's business or residence in
writing by hand delivery, first-class or overnight mail or courier service,
telegram or facsimile transmission, or orally by telephone. If mailed by
first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least 5 calendar days before such meeting. If by telegram, overnight mail or
courier service, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least 24 hours before such meeting.
If by facsimile transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least 12 hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least 12 hours prior
to the time set for the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these By-Laws.
A meeting may be held at any time without notice if all the Directors are
present or if those not present waive notice of the meeting either before or
after such meeting.
SECTION 3.6. ACTION BY CONSENT OF BOARD OF DIRECTORS. 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 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 3.7. CONFERENCE TELEPHONE MEETINGS. Members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such 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
KL2:249556.1
<PAGE>
participation in a meeting shall constitute presence in person at such meeting.
SECTION 3.8. QUORUM. Subject to Section 3.9, a whole number of
Directors equal to at least a majority of the Whole Board shall constitute a
quorum for the transaction of business, but if at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of the Directors
present may adjourn the meeting from time to time without further notice. The
act of the majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. The Directors present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Directors to leave less than a quorum.
SECTION 3.9. VACANCIES. Except as otherwise provided for or fixed by
or pursuant to the provisions of Article IV of the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
Directors under specified circumstances, newly created directorships resulting
from any increase in the number of Directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled by the affirmative vote of a majority of the remaining
Directors then in office, even though less than a quorum of the Board of
Directors. Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of such unexpired term or until such Director's
successor shall have been duly elected or chosen and qualified. No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
SECTION 3.10. COMMITTEES. (a) The Board of Directors may, by
resolution adopted by a majority of the Whole Board, designate committees to
exercise, subject to applicable provisions of law, any or all the powers of the
Board in the management of the business and affairs of the Corporation when the
Board is not in session, including without limitation the power to declare
dividends and to authorize the issuance of the Corporation's capital stock. Each
such committee shall consist of two or more Directors of the Corporation. The
Board may designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee may to the extent permitted by law exercise such
powers and shall have such responsibilities as shall be specified in the
designating resolution. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Each committee shall keep
written minutes of its proceedings and shall report such proceedings to the
Board when required.
(b) A majority of any committee may determine its action and fix the
time and place of its meetings, unless the Board shall otherwise provide. Notice
of such meetings shall be given to each member of the committee in the manner
provided for in Section 3.5 of these
KL2:249556.1
<PAGE>
By-Laws. The Board shall have power at any time to fill vacancies in, to change
the membership of, or to dissolve any such committee. Nothing herein shall be
deemed to prevent the Board from appointing one or more committees consisting in
whole or in part of persons who are not Directors of the Corporation; provided,
however, that no such committee shall have or may exercise any authority of the
Board.
SECTION 3.11. REMOVAL. Subject to the rights of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation to elect Directors under specified circumstances, any Director may
be removed from office only for cause by the affirmative vote of the holders of
at least a majority of the voting power of all Voting Stock then outstanding,
voting together as a single class.
SECTION 3.12. RECORDS. The Board of Directors shall cause to be kept
a record containing the minutes of the proceedings of the meetings of the Board
and of the shareholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
ARTICLE IV
OFFICERS
SECTION 4.1. ELECTED OFFICERS. The elected officers of the
Corporation shall be a Chairman of the Board of Directors, a Chief Executive
Officer, a President, a Secretary, a Treasurer, and such other officers
(including, without limitation, Senior Vice Presidents and Executive Vice
Presidents and Vice Presidents) as the Board of Directors from time to time may
deem proper. The Chairman of the Board shall be chosen from among the Directors.
All officers elected by the Board of Directors shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific
provisions of this Article IV. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board of Directors or by any
committee thereof. The Board or any committee thereof may from time to time
elect such other officers (including one or more Vice Presidents, Controllers,
Assistant Secretaries and Assistant Treasurers), as may be necessary or
desirable for the conduct of the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their offices for such
terms as shall be provided in these By-Laws or as may be prescribed by the Board
or such committee, as the case may be.
SECTION 4.2. ELECTION AND TERM OF OFFICE. Except as provided in
Section 4.11, the elected officers of the Corporation shall be elected annually
by the Board of Directors at the regular meeting of the Board of Directors held
after the annual meeting of the shareholders. If the election of officers shall
not be held at such meeting, such election shall be held as soon thereafter as
convenient. Each officer shall hold office until such person's successor shall
have been duly elected and shall have qualified or until such person's death or
until he shall resign or be removed pursuant to Section 4.9.
KL2:249556.1
<PAGE>
SECTION 4.3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders and of the Board of Directors. The
Chairman of the Board shall perform all such other duties as are properly
required of him by the Board of Directors. The Chairman of the Board may also
serve as President, if so elected by the Board. The Directors also may elect a
Vice-Chairman to act in the place of the Chairman upon his or her absence or
inability to act.
SECTION 4.4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of
the Corporation shall be responsible for the general management of the affairs
of the Corporation and shall make reports to the Board of Directors and the
shareholders, and shall see that all orders and resolutions of the Board of
Directors and of any committee thereof are carried into effect.
SECTION 4.5. PRESIDENT. The President shall act in a general
executive capacity and shall assist the Chief Executive Officer in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. The President, if he or she is also a
Director, shall, in the absence of or because of the inability to act of the
Chairman of the Board, perform all duties of the Chairman of the Board and
preside at all meetings of shareholders and of the Board of Directors.
SECTION 4.6. VICE PRESIDENTS. Each Senior Vice President and
Executive Vice President and any Vice President shall have such powers and shall
perform such duties as shall be assigned to him by the Board of Directors.
SECTION 4.7. TREASURER. The Treasurer shall exercise general
supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Corporation to be deposited in such banks
as may be authorized by the Board of Directors, or in such banks as may be
designated as depositories in the manner provided by resolution of the Board of
Directors. The Treasurer shall have such further powers and duties and shall be
subject to such directions as may be granted or imposed from time to time by the
Board of Directors.
SECTION 4.8. SECRETARY. (a) The Secretary shall keep or cause to be
kept in one or more books provided for that purpose, the minutes of all meetings
of the Board, the committees of the Board and the shareholders; the Secretary
shall see that all notices are duly given in accordance with the provisions of
these By-Laws and as required by law; shall be custodian of the records and the
seal of the Corporation and affix and attest the seal to all stock certificates
of the Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and attest the seal to
all other documents to be executed on behalf of the Corporation under its seal;
and shall see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and in general, shall perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to the
Secretary by the Board.
KL2:249556.1
<PAGE>
(b) Assistant Secretaries shall have such of the authority and
perform such of the duties of the Secretary as may be provided in these By-Laws
or assigned to them by the Board of Directors or by the Secretary. During the
Secretary's absence or inability, the Secretary's authority and duties shall be
possessed by such Assistant Secretary or Assistant Secretaries as the Board of
Directors may designate.
SECTION 4.9. REMOVAL. Any officer elected, or agent appointed, by
the Board of Directors may be removed by the affirmative vote of a majority of
the Whole Board whenever, in their judgment, the best interests of the
Corporation would be served thereby, except that the officers elected as
contemplated by Section 4.11 may be removed from the offices specified therein
during the terms specified therein only by the vote of two-thirds of the Whole
Board. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of such person's successor, such person's death, such person's
resignation or such person's removal, whichever event shall first occur, except
as otherwise provided in an employment contract or under an employee deferred
compensation plan.
SECTION 4.10. VACANCIES. A newly created elected office and a
vacancy in any elected office because of death, resignation, or removal may be
filled by the Board of Directors for the unexpired portion of the term at any
meeting of the Board of Directors.
SECTION 4.11. CERTAIN OFFICERS. Notwithstanding any provision herein
to the contrary, effective as of [the first anniversary of the Effective Time],
Dr. William J. Catacosinos shall be elected Chairman of the Board of Directors
and Chairman of the Executive Committee of the Board of Directors and Mr. Robert
B. Catell shall be elected Chief Executive Officer of the Corporation, in each
case, for a term ending at the regular meeting of the Board of Directors held
after the [next] annual meeting of shareholders. This Section 4.11 may be
modified only by the affirmative vote of two-thirds of the Whole Board.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1. STOCK CERTIFICATES AND TRANSFERS. The interest of each
shareholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by such person's attorney, upon surrender for cancellation of certificates for
at least the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. The certificates of stock shall be signed, countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to be in
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile
KL2:249556.1
<PAGE>
signature has been placed upon a certificate has 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 5.2. LOST, STOLEN OR DESTROYED CERTIFICATES. No certificate
for shares of stock in the Corporation shall be issued in place of any
certificate alleged to have been lost, destroyed or stolen, except on production
of such evidence of such loss, destruction or theft and on delivery to the
Corporation of a bond of indemnity in such amount, upon such terms and secured
by such surety, as the Board of Directors or any financial officer may in its or
such person's discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. FISCAL YEAR. [The fiscal year of the Corporation shall begin
on the first day of January and end on the thirty-first day of December of each
year.]
SECTION 6.2. DIVIDENDS. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
SECTION 6.3. SEAL. The corporate seal shall have inscribed thereon the
words "Corporate Seal," the year of incorporation and around the margin thereof
the words "New York."
SECTION 6.4. WAIVER OF NOTICE. Whenever any notice is required to be
given to any shareholder or Director of the Corporation under the provisions of
the NYBCL or these ByLaws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Neither the
business to be transacted at, nor the purpose of, any annual or special meeting
of the shareholders or the Board of Directors or committee thereof need be
specified in any waiver of notice of such meeting.
SECTION 6.5. AUDITS. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be done
annually.
SECTION 6.6. RESIGNATIONS. Any Director or any officer, whether
elected or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board, the Chief Executive Officer, the
President or the Secretary, and such resignation shall be deemed to be effective
as of the close of business on the date said notice is received by the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary, or at
KL2:249556.1
<PAGE>
such later time as is specified therein. No formal action shall be required of
the Board of Directors or the shareholders to make any such resignation
effective.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
SECTION 7.1. CONTRACTS. Except as otherwise required by law, the
Certificate of Incorporation, a Preferred Stock Designation, or these By-Laws,
any contracts or other instruments may be executed and delivered in the name and
on the behalf of the Corporation by such officer or officers of the Corporation
as the Board of Directors may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. The
Chairman of the Board, the Chief Executive Officer, the President or any Senior
Vice President, Executive Vice President or Vice President may execute bonds,
contracts, deeds, leases and other instruments to be made or executed for or on
behalf of the Corporation. Subject to any restrictions imposed by the Board of
Directors, the Chief Executive Officer, the President or any Senior Vice
President, Executive Vice President or Vice President of the Corporation may
delegate contractual powers to others under such person's jurisdiction, it being
understood, however, that any such delegation of power shall not relieve such
officer of responsibility with respect to the exercise of such delegated power.
SECTION 7.2. PROXIES. Unless otherwise provided by resolution
adopted by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer, the President or any Senior Vice President, Executive Vice
President or Vice President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation, any of
whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal or otherwise, all such written proxies or other instruments
as he may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. AMENDMENTS. Except as otherwise specified herein, the
By-Laws may be altered or repealed and new By-Laws may be adopted (1) at any
annual or special meeting of shareholders by the affirmative vote of the holders
of a majority of the voting power of the stock issued and outstanding and
entitled to vote thereat, provided, however, that any proposed alteration or
repeal of, or the adoption of any By-Law inconsistent with, Section 2.2,
KL2:249556.1
<PAGE>
2.7 or 2.10 of Article II or Section 3.9 or 3.11 of Article III of the By-Laws
by the shareholders shall require the affirmative vote of the holders of at
least 80% of the voting power of all Voting Stock then outstanding, voting
together as a single class, and provided, further, however, that, in the case of
any such shareholder action at a special meeting of shareholders, notice of the
proposed alteration, repeal or adoption of the new By-Law or By-Laws must be
contained in the notice of such special meeting, or (2) by the affirmative vote
of a majority of the Whole Board.
<TABLE>
<CAPTION>
<S> <C> <C>
Temporary Certificate - Exchangeable for
Definitive Engraved Certificate When Ready for
Delivery
Number MARKETSPAN LOGO Shares
Common Stock Incorporated Under The Laws Of the State See Reverse
Of New York for Certain
Definitions
Cusip
THIS CERTIFIES
THAT
IS THE OWNER
OF
FULLY PAID AND NON-ASSESSABLE SHARES
OF COMMON STOCK, PAR VALUE PER SHARE,
OF
transferable only on the books of the
Corporation by the holder hereof in person
or by duly authorized attorney upon
the surrender of this certificate properly
endorsed. This certificate and the shares
represented hereby are issued and shall be
held subject to all the provisions of
the Certificate of Incorporation of the
Corporation and any amendments thereto,
to all of which the holder of this
certificate by acceptance hereof assets. This
certificate is not valid unless countersigned
and registered by the Transfer Agent
and Registrar.
Witness the facsimile seal of the
Corporation and the facsimile signatures
of its duly authorized officers.
Dated
Secretary President
COUNTERSIGNED
AND REGISTERED:
By Transfer
Agent and
Registrar
Authorized Signature
</TABLE>
-3-
<PAGE>
The Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each authorized class of series hereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list
For value received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including zip code, of assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------- shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint Attorney to transfer the said stock on the
books of the within named corporation with full power of substitution in the
premises.
Dated
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the certificate in every particular without alteration
or enlargement or any change whatever.
Signature(s) Guaranteed
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO
S.E.C. RULE 17Ad-15.
-4-
