As filed with the Securities and Exchange Commission on June 21, 1999
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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IPC COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-4060937
(State or other jurisdiction of (I.R.S. Employer
incorporation or Identification No.)
organization)
WALL STREET PLAZA
88 PINE STREET
NEW YORK, NEW YORK 10005
(212) 858-7900
(Address, including Zip Code, of principal executive offices)
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IPC COMMUNICATIONS, INC.
1999 STOCK INCENTIVE PLAN
(Full title of the Plan)
---------------
MR. GERALD E. STARR
PRESIDENT AND CHIEF EXECUTIVE OFFICER
IPC COMMUNICATIONS, INC.
WALL STREET PLAZA
88 PINE STREET
NEW YORK, NEW YORK 10005
(212) 825-9060
Copy to:
THOMAS N. TALLEY, ESQ.
THACHER PROFFITT & WOOD
TWO WORLD TRADE CENTER
NEW YORK, NEW YORK 10048
(212) 912-7400
(Name and address, including Zip Code, telephone number and area code,
of agent for service)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of
Title of Securities to be Registered Price Per Share (2) Aggregate Offering Price Registration Fee
(2)
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 1,538,322 shares -- $16,152,381 $4,491
====================================================================================================================================
</TABLE>
(1) Based on the number of shares of common stock of IPC Communications,
Inc. (the "Company") reserved for issuance upon exercise of options
granted pursuant to the IPC Communications, Inc. 1999 Stock Incentive
Plan and its predecessor, the IPC Information Systems, Inc. 1998 Stock
Incentive Plan (together with the IPC Communications, Inc. 1999 Stock
Incentive Plan, the "Plan"). In addition to such shares, this
registration statement also covers an undetermined number of shares of
common stock of the Company that, by reason of certain events specified
in the Plan, may become issuable upon exercise of options through the
use of certain anti-dilution provisions.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to
which 1,538,322 shares subject to outstanding options are deemed to be
offered at $10.50 per share, the price at which such options may be
exercised, and restricted shares and shares that may be acquired upon
exercise of options granted in the future are deemed to be offered at
$59.25 per share, the average of the high and low sales prices of
common stock of the Company on the American Stock Exchange at the close
of trading on June 14, 1999.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in
this Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
IPC Communications, Inc. is treated as a successor to IPC
Information Systems, Inc. for purposes of the Securities Exchange Act of 1934,
as amended. The following documents and information heretofore filed with the
Commission by the IPC Information Systems, Inc. (File No. 0-25492) are
incorporated by reference in this registration statement:
(1) the description of the IPC Information Systems, Inc.'s common
stock (the "Common Stock") contained in the IPC Information
Systems, Inc.'s Registration Statement on Form 8-A, which was
filed with the Commission pursuant to the Securities Exchange
Act of 1934, as amended ("Exchange Act") on July 6, 1998,
including any amendments or reports filed for the purpose of
updating such description;
(2) IPC Information Systems, Inc.'s Annual Report on Form 10-K for
the fiscal year ended September 30, 1998, as amended;
(3) IPC Information Systems, Inc.'s Quarterly Reports on Form 10-Q
for the quarters ended December 31, 1998, and March 31, 1999;
and
<PAGE>
(4) IPC Information Systems, Inc.'s Current Reports on Form 8-K,
dated January 4, 1999 (amended on February 11, 1999), April
23, 1999 (as amended on May 20, 1999) and May 21, 1999 and the
Registrant's Current Report on Form 8-K dated May 24, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof and prior to the date of filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any document which is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
IPC Communications, Inc. will provide without charge to each
person to whom this Prospectus is delivered, upon request of any such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents). Written requests should be directed to
Brian Reach, Chief Financial Officer, IPC Communications, Inc., Wall Street
Plaza, 88 Pine Street, New York, New York 10005. Telephone requests may be
directed to (212) 858-7900.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL")
INTER ALIA, empowers a Delaware corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was
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<PAGE>
unlawful. Similar indemnity is authorized for such person against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him, an incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
Section 6 of the Company's Certificate of Incorporation
provides that a director shall not be personally liable to the Company or its
stockholders for damages for breach of his fiduciary duty as a director, except
to the extent such exemption from liability or limitation thereof is expressly
prohibited by the DGCL. Article IV of the Company's By-Laws requires the
Company, among other things, to indemnify to the fullest extent permitted by the
DGCL, any person who is or was or has agreed to become a director or officer of
the Company, who was or is made a party to, or is threatened to be made a party
to, or has become a witness in, any threatened, pending or completed action,
suit or proceeding, including actions or suits by or in the right of the
Company, by reason of such agreement or service or the fact that such person is,
was or has agreed to serve as a director, officer, employee or agent of another
corporation or organization at the written request of the Company.
Article IV also empowers the Company to purchase and maintain
insurance to protect itself and its directors and officers, and those who were
or have agreed to become directors or officers, against any liability,
regardless of whether or not the Company would have the power to indemnify those
persons against such liability under the law. The Company currently maintains
directors' and officers' liability insurance consistent with the provisions of
the Certificate of Incorporation and the By-Laws.
Pursuant to the Agreement and Plan of Merger dated December
18, 1997, between the Company's predecessor, IPC Information Systems, Inc., and
Arizona Acquisition Corp., the Company is contractually required to provide
officers' and directors' liability insurance covering acts and omissions
occurring prior to the merger and extending for six years after the merger to
those persons covered by the Company's or any subsidiary's officers' and
directors' liability insurance policy prior to the merger. Pursuant to this
agreement, the Company is also required to indemnify the present and former
officers and directors of the Company to the maximum extent provided for under
IPC Information Systems, Inc.'s certificate of incorporation and bylaws as in
effect as of
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<PAGE>
December 18, 1997. The Company's obligation to indemnify extends for six years
following the merger.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing, the Registrant has been informed that
in the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 IPC Communications, Inc. 1999 Stock Incentive Plan.
4.2 Form of Grant Certificate under the IPC
Communications, Inc. 1999 Stock Incentive Plan.
4.3 Certificate of Incorporation of IPC Communications,
Inc.
4.4 By-Laws of IPC Communications, Inc.
5.1 Opinion of Thacher Proffitt & Wood, counsel for
Registrant, as to the legality of the securities
being registered.
23.1 Consent of Thacher Proffitt & Wood (included in
Exhibit 5.1 hereof).
23.2 Consent of PricewaterhouseCoopers, LLP.
ITEM 9. UNDERTAKINGS.
A. RULE 415 OFFERING. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
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<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining liability under the
Securities Act each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
C. INCORPORATED ANNUAL AND QUARTERLY REPORTS. The undersigned
Registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Exchange Act and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
D. FILING OF REGISTRATION ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the State of New York on June 18, 1999.
IPC COMMUNICATIONS, INC.
(Registrant)
By: /s/ Gerald E. Starr
--------------------------------
Gerald E. Starr
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Gerald E. Starr President and Chief Executive Officer June 18, 1999
- ---------------------------------------------- (Principal Executive Officer) and Director
Gerald E. Starr
/s/ Peter Woog Chairman and Director June 18, 1999
- ----------------------------------------------
Peter Woog
Vice Chairman and Director
- ----------------------------------------------
Richard P. Kleinnecht
/s/ Brian L. Reach Chief Financial Officer (Chief Financial June 18, 1999
- ---------------------------------------------- and Accounting Officer) and Director
Brian L. Reach
/s/ Richard M. Cashin, Jr. Director June 18, 1999
- ----------------------------------------------
Richard M. Cashin, Jr.
/s/ David Y. Howe Director June 18, 1999
- ----------------------------------------------
David Y. Howe
/s/ Robert J. McInerney Director June 18, 1999
- ----------------------------------------------
Robert J. McInerney
/s/ Richard W. Smith Director June 18, 1999
- ----------------------------------------------
Richard W. Smith
Director
- ----------------------------------------------
David A. Walsh
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 IPC Communications, Inc. 1999 Stock Incentive Plan.
4.2 Form of Grant Certificate under the IPC Communications, Inc. 1998 Stock
Incentive
Plan.
4.3 Certificate of Incorporation of IPC Communications, Inc.
4.4 By-Laws of IPC Communications, Inc.
5.1 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the
legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5.1 hereof).
23.2 Consent of PricewaterhouseCoopers, LLP.
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IPC COMMUNICATIONS, INC.
1999 STOCK INCENTIVE PLAN
Section 1. Purpose
-------
The Plan authorizes the Compensation Committee of the Board to provide
employees, directors and consultants of the Corporation or its Subsidiaries, who
are in a position to contribute to the long-term success of the Corporation and
its Subsidiaries, with Options to acquire Common Stock of the Corporation. The
Corporation believes that this incentive program will cause those persons to
increase their interest in the welfare of the Corporation and its Subsidiaries,
and aid in attracting and retaining employees and consultants of outstanding
ability.
Section 2. Definitions
-----------
Unless the context clearly indicates otherwise, the following terms,
when used in the Plan, shall have the meanings set forth in this Section:
(a) "Board" means the Board of Directors of the Corporation.
(b) "Cause" means any of the following: (i) commission of any act of
fraud or dishonesty with respect to the business of the Corporation or its
Subsidiaries, (ii) willful misconduct or gross negligence in connection with the
performance of a Grantee's duties to the Corporation and its Subsidiaries, (iii)
indictment for, or conviction of, any crime or an offence involving moral
turpitude, (iv) commission of any act injurious to the interest of the
Corporation, or (v) breach of any material provision of any applicable
employment or consulting agreement. Notwithstanding the foregoing, if any
Grantee is party to an employment or consulting agreement governing the terms of
his employment or consultancy with the Corporation or its Subsidiaries, and such
agreement includes a definition of cause, then for purposes hereof, cause shall
have the meaning ascribed thereto in such agreement.
(c) "Change in Control" shall mean (i) approval by the stockholders of
the Corporation of a transaction that would result in the reorganization, merger
or consolidation of the Corporation with one or more persons, and, upon
consummation thereof, would result in persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934) at least 50% of the securities
entitled to vote generally in the election of directors of the Corporation,
beneficially owning (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) in the aggregate immediately after such
transaction less than 50% of the securities entitled to vote generally in the
election of directors of the entity resulting from such transaction; (ii) the
acquisition of all or substantially all of the assets of the Corporation or
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of at least 50% of the outstanding securities
of the Corporation entitled to vote generally in the election of directors by
any person or by any persons acting in concert, or approval by the stockholder
of the Corporation of any transaction which would result in such an acquisition
(other than by any person or persons who beneficially own (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of 1934),
A-1
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immediately after the closing date of transactions contemplated by the Merger
Agreement at least 50% of the outstanding securities of the Corporation entitled
to vote generally in the election of directors); or (iii) a complete liquidation
or dissolution of the Corporation, or approval of the Corporation of a plan for
such liquidation or dissolution; provided, however, that in no event shall any
of the transactions contemplated by the Merger Agreement (or shareholder
approval thereof) constitute a Change in Control.
(d) "Committee" means the Compensation Committee of the Board;
provided, however, that with respect to any Option granted or to be granted to
any member of the Compensation Committee, Committee shall mean the Board acting
through a majority of its members who are not
members of the Compensation Committee.
(e) "Common Stock" means the common stock par value $.01 per share, of
the Corporation.
(f) "Consultant" means any person who is engaged to perform services
for the Corporation or any of its Subsidiaries, or has agreed to perform
services for the Corporation or any of its Subsidiaries, other than as an
Employee or Director.
(g) "Code" means the Internal Revenue Code of 1986, as amended
(h) "Corporation" means IPC Communications, Inc., a Delaware
corporation.
(i) "Director" means any member of the Board.
(j) "Disability" means a physical or mental impairment that causes the
Grantee to be unable to engage in any substantial gainful activity and that is
expected to result in death or is expected to last for a continuous period of at
least 12 months. Notwithstanding the foregoing, if any Grantee is party to an
employment or consulting agreement governing the terms of his employment or
consultancy with the Corporation or its Subsidiaries, and such agreement
includes a definition of disability, then for purposes hereof, disability shall
have the meaning ascribed thereto in such agreement.
(k) "Employee" means any employee of the Corporation or any of its
Subsidiaries, or any person who has agreed to become an employee of the
Corporation or any of its Subsidiaries. The term Employee shall include
directors who are otherwise employed by the Corporation or any
Subsidiary.
(l) "Fair Market Value" means, as of any date, the fair market value of
a share of Common Stock as determined by the Committee acting in good faith in
its sole discretion; provided, however, that if the Common Stock is listed on a
national securities exchange or quoted in an interdealer quotation system, the
fair market value shall be based on the last sales price or, if unavailable, the
average of the closing bid and asked prices per share of the Common Stock on
such date (or, if there was no trading or quotation in the Common Stock on such
date, on the next preceding date on which there was trading or quotation) as
provided by one of such organizations. Notwithstanding the foregoing, the Fair
Market Value of a share of Common Stock on the closing date of the transactions
contemplated by the Merger Agreement shall be deemed to be the "Cash
A-2
<PAGE>
Election Price" as defined in the Merger Agreement.
(m) "Incentive Stock Option" means an Option designated by the
Committee as an Option that is intended to be an incentive stock option within
the meaning of Section 422(b) of the
Code.
(n) "Grantee" means a person granted an Option under the Plan.
(o) "Merger Agreement" means the Agreement and Plan of Merger, dated as
of December 18, 1997 by and between the Corporation and Arizona Acquisition
Corp., a Delaware Corporation.
(p) "Nonqualified Stock Option" means an Option that is not an
Incentive Stock Option, or an Incentive Stock Option that, subsequent to the
date of grant thereof, fails to satisfy the requirements of Section 422(b) or
(d) of the Code.
(q) "Option" means an option granted pursuant to the Plan to purchase
shares of the Common Stock.
(r) "Plan" means this Stock Incentive Plan as set forth herein and as
amended from time
to time.
(s) "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder as presently in effect or hereafter
amended.
(t) "Stock Option Agreement" shall mean a written agreement between the
Corporation and the Grantee, or a certificate accepted by the Grantee,
evidencing the grant of an Option hereunder and containing such terms and
conditions, not inconsistent with the Plan, as the
Committee shall approve.
(u) "Subsidiary" shall mean (i) any corporation with respect to which
the Corporation owns, directly or indirectly, 50% or more of the total combined
voting power of all classes of stock of such corporation, or (ii) any entity
which the Committee reasonably expects to become a
Subsidiary within the meaning of clause (i).
Section 3. Shares of Common Stock Subject to the Plan
------------------------------------------
Subject to adjustment as provided in Section 7, the Common Stock which
may be issued pursuant to Options granted under the Plan shall not exceed
1,538,322 shares in the aggregate (16% of outstanding on fully diluted basis).
Common Stock issuable under the Plan may be authorized but unissued shares or
reacquired shares of Common Stock. Common Stock subject to Options that are
forfeited, lapse or terminate in whole or in part for any reason, shall be
available for issuance pursuant to other Options.
A-3
<PAGE>
Section 4. Administration of the Plan
--------------------------
(a) AUTHORITY OF THE COMMITTEE. The Plan shall be administered by the
Committee. The Committee shall have full and final authority to take the
following actions, in each case subject to
and consistent with the provisions of the Plan:
(i) to select the Employees, Directors and Consultants to whom
Options may be granted;
(ii) to determine the number of shares of Common Stock subject
to each such Option; provided, however, that during any calendar year,
no individual may be granted Options with respect to more than 250,000
shares of Common Stock;
(iii) to determine whether an Option shall be an Incentive
Stock Option or a Nonqualified Stock Option;
(iv) to determine the terms and conditions of any Option
granted under the Plan (including, but not limited to, the exercise
price, the period, if any, over which Options shall vest and become
exercisable (which period may be accelerated at any time in the
discretion of the Committee), and performance conditions relating to an
Option, based in each case on such considerations as the Committee
shall determine), and all other matters to be determined in connection
with an Option;
(v) to determine whether, to what extent and under what
circumstances an the exercise price of an Option may be paid, in cash,
Common Stock, or other property, or an Option may expire or be
canceled, forfeited, or surrendered;
(vi) to determine the restrictions or conditions related to
the delivery, holding and disposition of shares of Common Stock
received upon exercise of an Option;
(vii) to prescribe the form of each Stock Option Agreement,
which need not be identical for each Grantee;
(viii) to adopt, amend, suspend, waive and rescind such rules
and regulations and appoint such agents as the Committee may deem
necessary or advisable to administer the Plan;
(ix) to correct any defect or supply any omission or reconcile
any inconsistency in the Plan and to construe and interpret the Plan
and any Option, Stock Option Agreement or other instrument hereunder;
and
(x) to make all other decisions and determinations as may be
required under the terms of the Plan or as the Committee may deem
necessary or advisable for the administration of the Plan.
The Committee may, at any time, grant new or additional options to any eligible
Employee, Director or Consultant who has previously received Options under the
Plan, or options under other plans,
A-4
<PAGE>
whether such prior Options or other options are still outstanding, have been
exercised previously in whole or in part, or have been canceled. The exercise
price of such new or additional Options may be established by the Committee,
without regard to such previously granted Options or other options.
Other provisions of the Plan notwithstanding, the Board may perform any function
of the Committee under the Plan, including without limitation for the purpose of
ensuring that transactions under the Plan by Grantees who are then subject to
Section 16 of the Securities Exchange Act of 1934 in respect of the Corporation
are exempt under Rule 16b-3 thereunder. In any case in which the Board is
performing a function of the Committee under the Plan, each reference to the
Committee herein shall be deemed to refer to the Board.
(b) MANNER OF EXERCISE OF COMMITTEE AUTHORITY. Any action of the
Committee with respect to the Plan shall be final, conclusive and binding on all
persons, including the Corporation, Subsidiaries, Grantees, any person claiming
any rights under the Plan from or through any Grantee and stockholders, except
to the extent the Committee may subsequently modify, or take further action not
consistent with, its prior action. If not specified in the Plan, the time at
which the Committee must or may make any determination shall be determined by
the Committee, and any such determination may thereafter by modified by the
Committee (subject to Section 10). The express grant of any specific power to
the Committee, and the taking of any action by the Committee, shall not be
construed as limiting any power or authority of the Committee. The Committee may
delegate to officers or managers of the Corporation or any subsidiary of the
Corporation the authority, subject to such terms as the Committee shall
determine, to perform such functions as the Committee may determine, to the
extent permitted under applicable law.
(c) LIMITATION OF LIABILITY. Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other information
furnished to him by any officer or other employee of the Corporation or any
subsidiary, the Corporation's independent certified public accountants or any
executive compensation consultant, legal counsel or other professional retained
by the Corporation to assist in the administration of the Plan. To the fullest
extent permitted by applicable law, no member of the Committee, nor any officer
or employee of the Corporation acting on behalf of the Committee, shall be
personally liable for any action, determination or interpretation taken or made
in good faith with respect to the Plan, and all members of the Committee and any
officer or employee of the Corporation acting on its behalf shall, to the extent
permitted by law, be fully indemnified and protected by the Corporation with
respect to any such action, determination or interpretation.
Section 5. OPTION TERMS
Unless otherwise determined by the Committee and set forth in a Stock
Option Agreement, Options granted under the Plan shall contain the following
terms and conditions:
(a) TYPE OF OPTION. Each Option shall be an Incentive Stock Option to
the maximum extent permitted by Section 422(d) of the Code, and any excess over
such maximum shall be a Nonqualified Stock Option.
(b) EXERCISE PRICE. The exercise price per share of Common Stock
subject to each Option
A-5
<PAGE>
shall equal the Fair Market Value on the date the Option is granted.
(c) VESTING. Each Option shall vest and become exercisable in five
equal installments on each of the first five anniversaries on the date the
Option is granted; provided, however that the Option shall be vested and
exercisable as to no less than 75% of the shares of Common Stock subject thereto
as of the end of any period of 30 consecutive trading days during which the Fair
Market Value averages at least 300% of the Fair Market Value on the date the
Option is granted, and shall be vested and exercisable as to 100% of the shares
of Common Stock subject thereto as of the end of any period of 30 consecutive
trading days during which the Fair Market Value averages at least 450% of the
Fair Market Value on the date the Option is granted; and provided further that
each Option shall become vested and exercisable in full immediately prior to a
Change in Control.
(d) TERMINATION. Options held by any Grantee shall terminate upon the
earliest of:
(i) the termination of the Grantee's employment, directorship
or consultancy with the Corporation and its Subsidiaries for Cause;
(ii) the later of (x) 180 days after the Grantee's termination
of employment, directorship or consultancy with the Corporation and its
Subsidiaries (which shall be deemed to include the sale of any Subsidiary of the
Corporation that employs such Grantee) for any reason other than Cause, death or
Disability, or (y) 180 days following the end of any "blackout period" imposed
by the Corporation's general counsel that is in effect on the date of such
termination; provided, however, that during any such 180-day period, the Options
shall be exercisable only to the extent vested and exercisable as of the date of
such termination;
(iii) one year after the Grantee's termination of employment,
directorship or consultancy with the Corporation and its Subsidiaries by reason
of death or Disability; provided, however, that during any such one year period,
the Options shall be exercisable to the extent such Options would have been
vested and exercisable pursuant to Section 5(c) (but without regard to the
provisos contained therein) as of the anniversary of the date of grant next
following such termination, assuming such termination had not occurred;
(iv) the tenth anniversary of the date of grant; and
(v) upon the consummation of any transaction whereby the
Corporation (or any successor to the Corporation or substantially all of its
business) becomes a wholly-owned subsidiary of any other corporation (but after
giving effect to Section 5(c)), unless such other corporation shall continue or
assume the Plan as it relates to Options then outstanding (in which case such
other corporation shall be treated as the Corporation for all purposes
hereunder, and, pursuant to Section 7, the Committee of such other corporation
shall make appropriate adjustment in the number and kind of shares of Common
Stock subject thereto and the exercise price per share thereof to reflect
consummation of such transaction). If the Plan is not to be so assumed, the
Corporation shall notify the Grantee of consummation of such transaction at
least ten days in advance thereof. If such other corporation is an affiliate of
the Corporation immediately prior to consummation of any such transaction,
Options shall not terminate and shall remain Options to purchase Common Stock of
the Corporation unless the Plan is in fact so continued or assumed by such other
corporation.
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<PAGE>
Section 6. Exercise of Options
-------------------
A Grantee shall exercise an Option by delivery of written notice to the
Corporation setting forth the number of shares with respect to which the Option
is to be exercised, together with cash, certified check, bank draft, wire
transfer, or postal or express money order payable to the order of the
Corporation for an amount equal to the exercise price of such shares and any
income tax required to be withheld. The Committee may, in its sole discretion,
permit a Grantee to pay all or a portion of the exercise price or tax
withholding obligation by delivery of Common Stock or other property (including
notes or other contractual obligations of the Grantee to make payment on a
deferred basis, such as through "cashless exercise" arrangements, to the extent
permitted by applicable law), and the methods by which Common Stock will be
delivered or deemed to be delivered by the Grantee.
Section 7. Adjustment Upon Changes in Capitalization
-----------------------------------------
In the event any recapitalization, forward or reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or
exchange of Common Stock or other securities, Common Stock dividend or other
special and nonrecurring dividend or distribution (whether in the form of cash,
securities or other property), liquidation, dissolution, or other similar
corporate transaction or event, affects the Common Stock such that an adjustment
is appropriate in order to prevent dilution or enlargement of the rights of
Grantees under the Plan, then the Committee shall, in such manner as it may deem
equitable, adjust any or all of (i) the number and kind of shares of Common
Stock deemed to be available thereafter for grants of Options under Section 3,
(ii) the number and kind of shares of Common Stock that may be delivered or
deliverable in respect of outstanding Options, (iii) the number of shares with
respect to which Options may be granted to a given Grantee in the specified
period as set forth in Section 4(a)(ii), and (iv) the exercise price. In
addition, the Committee is authorized to make adjustments in the terms and
conditions of, and the criteria included in, Options (including, without
limitation, cancellation of Options in exchange for the in-the-money value, if
any, of the vested portion thereof, or substitution of Options using stock of a
successor or other entity) in recognition of unusual or nonrecurring events
(including, without limitation, events described in the preceding sentence)
affecting the Corporation or any Subsidiary or the financial statements of the
Corporation or any Subsidiary, or in response to changes in applicable laws,
regulations, or accounting principles.
Section 8. Restrictions on Issuance of Shares.
----------------------------------
The Corporation shall not be obligated to deliver Common Stock upon the
exercise or settlement of any Option or take any other action under the Plan
until the Corporation shall have determined that applicable federal and state
laws, rules, and regulations have been complied with and such approvals of any
regulatory or governmental agency have been obtained and contractual obligations
to which the Option may be subject have been satisfied. The Corporation, in its
discretion, may postpone the issuance or delivery of Common Stock under any
Option until completion of such stock exchange listing or registration or
qualification of Common Stock or other required action under any federal or
state law, rule, or regulation as the Corporation may consider appropriate, and
may require any Grantee to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of Common Stock under
A-7
<PAGE>
the Plan. The Corporation shall file a registration statement on Form S-8 (or
other appropriate form) with respect to the Common Stock to be issued pursuant
to the Plan and shall use its best efforts to maintain the effectiveness of such
registration statement (and maintain the currency of any related prospectus) for
so long as Options are outstanding or may be granted under the Plan.
Section 9. General Provisions
------------------
(a) Each Option grant shall be evidenced by a Stock Option Agreement.
(b) The grant of an Option in any year shall not give the Grantee any
right to similar grants in future years or any right to continue such Grantee's
employment relationship with the Corporation. All Grantees shall remain subject
to discharge to the same extent as if the Plan were
not in effect.
(c) No Grantee, and no beneficiary or other persons claiming under or
through the Grantee shall have any right, title or interest by reason of any
Option to any particular assets of the Corporation, or any shares of Common
Stock allocated or reserved for the purposes of the Plan or subject to any
Option except as set forth herein. The Corporation shall not be required to
establish any fund or make any other segregation of assets to assure the payment
of any Option.
(d) Unless otherwise permitted in the discretion of the Committee with
respect to Nonqualified Stock Options, no Option or other right under the Plan
may be sold, transferred, assigned, pledged or otherwise encumbered, except by
will or the laws of descent and distribution, and an Option shall be exercisable
during the Grantee's lifetime only by the Grantee.
(e) The Corporation shall have the right to require that the Grantee
make such provision, or furnish the Corporation such authorization, necessary or
desirable so that the Corporation may satisfy its obligation, under applicable
laws, to withhold or otherwise pay for income or other taxes of the Grantee
attributable to the grant, exercise or cancellation of Options granted under the
Plan or the sale of Common Stock issued with respect to Options. This authority
shall include authority to withhold or receive Common Stock or other property
and to make cash payments in respect thereof in satisfaction of a Grantee's tax
obligations.
Section 10. Amendment or Termination
------------------------
The Board may alter, amend, suspend, discontinue or terminate the Plan
at any time; provided, however, that no such action shall adversely affect the
rights of Grantees of Options previously granted hereunder and, provided
further, however, that any stockholder approval necessary or desirable in order
to comply with applicable law, regulation or listing requirement shall
be obtained in the manner required therein.
Section 11. Effective Date of Plan
` ----------------------
The Plan shall be effective immediately after the closing of the
transactions contemplated by
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<PAGE>
the Merger Agreement, subject to the approval of the Plan by the Corporation's
shareholders either before or after such effective date.
A-9
IPC COMMUNICATIONS, INC.
STOCK INCENTIVE PLAN
Grant Certificate
This Grant Certificate evidences the grant of an option pursuant to the
provisions of the Stock Incentive Plan (the "Plan") of IPC Communications, Inc.
(the "Company") to the individual whose name appears below (the "Grantee"),
covering the specific number of shares of Common Stock of the Company ("Stock")
set forth below, pursuant to the provisions of the Plan and on the following
express terms and conditions:
1. Name of Grantee:
2. Number of shares of the Company which are subject to this option:
3. Exercise Price of the shares subject to this option:
4. Date of grant of this option:
5. Vesting:
6. Termination date of this option:
The Grantee hereby acknowledges receipt of a copy of the Plan as presently in
effect. The text and all of the terms and provisions of the Plan are
incorporated herein by reference, and this option is subject to these terms and
provisions in all respects. At any time when the Grantee wishes to exercise this
option, in whole or in part, the Grantee shall submit to the Company a written
notice of exercise, specifying the exercise date and the number of shares to be
exercised. Upon exercise, the Grantee shall remit to the Company the exercise
price, plus an amount sufficient to satisfy any withholding tax obligation of
the Company that arises in connection with such exercise.
IPC COMMUNICATIONS, INC. AGREED TO AND ACCEPTED BY:
By:
-------------------------------- -------------------------------
[Grantee Name]
CERTIFICATE OF INCORPORATION
OF
IPC COMMUNICATIONS, INC.
1. NAME. The name of the corporation is IPC Communications,
Inc. (the "Corporation").
2. REGISTERED OFFICE AND AGENT. The address of the
Corporation's registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of the Corporation's registered agent at such address is The Corporation
Trust Company.
3. PURPOSE. The nature of the business and purpose or purposes
to be conducted or promoted by the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
4. CAPITAL STOCK.
4.1 SHARES, CLASSES, AND SERIES AUTHORIZED. The total number
of shares of all classes of capital stock which the Corporation shall have
authority to issue is thirty-five million (35,000,000) shares, of which ten
million (10,000,000) shares shall be preferred stock, par value one cent ($.01)
per share (the "Preferred Stock"), and twenty five million (25,000,000) shares
shall be common stock, par value one cent ($.01) per share (the "Common Stock").
The Preferred Stock and Common Stock are sometimes hereinafter collectively
referred to as the "Capital Stock."
4.2 DESIGNATIONS, POWERS, PREFERENCES, RIGHTS, QUALIFICATION,
LIMITATIONS AND RESTRICTIONS RELATING TO THE CAPITAL STOCK. The following is a
statement of the designations, powers, preferences and rights in respect of the
classes of the Capital Stock, and the qualifications, limitations or
restrictions thereof, and of the authority with respect thereto expressly vested
in the Board of the Corporation.
(a) PREFERRED STOCK. The Preferred Stock may be issued from
time to time in one or more series, the number of shares and any designation of
each series and the powers, preferences and rights of the shares of each series,
and the qualifications, limitations or restrictions thereof, to be as stated and
expressed in a resolution or resolutions providing for the issue of such series
adopted by the Board of Directors, subject to the limitations prescribed by law.
The Board of Directors in any such resolution or resolutions is expressly
authorized to state for each such series:
(i) the voting powers, if any, of the holders of stock of such
series in addition to any voting rights affirmatively required by law;
(ii) the rights of stockholders in respect of dividends,
including, without limitation, the rate or rates per annum and the time or times
at which (or the formula or other method
<PAGE>
pursuant to which such rate or rates and such time or times may be determined)
and conditions upon which the holders of stock of such series shall be entitled
to receive dividends and other distributions, and whether any such dividends
shall be cumulative or noncumulative and, if cumulative, the terms upon which
such dividends shall be cumulative;
(iii) whether the stock of each such series shall be
redeemable by the Corporation at the option of the Corporation or the holder
thereof or upon the occurrence of a specified event or events, and, if
redeemable, the terms and conditions upon which the stock of such series may be
redeemed;
(iv) the amount payable and the rights or preferences to which
the holders of the stock of such series shall be entitled upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(v) the terms, if any, upon which shares of stock of such
series shall be convertible into, or exchangeable for, shares of stock of any
other class or classes or of any other series of the same or any other class or
classes, including the price or prices or the rate or rates of conversion or
exchange and the terms of adjustment, if any; and
(vi) any other designations, preferences, and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, so far as they are not inconsistent with the provisions
of this Certificate of Incorporation and to the full extent now or hereafter
permitted by the laws of the State of Delaware.
All shares of the Preferred Stock of any one series shall be
identical to each other in all respects, except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon, if cumulative, shall be cumulative.
Subject to any limitations or restrictions stated in the
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting a series, the Board of Directors may by resolution or
resolutions likewise adopted increase (but not above the total number of
authorized shares of that class) or decrease (but not below the number of shares
of the series then outstanding) the number of shares of the series subsequent to
the issue of shares of that series; and if the number of shares of any series
shall be so decreased, the shares constituting the decrease shall resume that
status that they had prior to the adoption of the resolution originally fixing
the number of shares constituting such series.
(b) Common Stock. All shares of Common Stock shall be
identical to each other in every respect. The shares of Common Stock shall
entitle the holders thereof to one vote for each share on all matters on which
stockholders have the right to vote. The holders of Common Stock shall not be
permitted to cumulate their votes for the election of directors.
Subject to the preferences, privileges and powers with respect
to each class or series of Capital Stock having any priority over the Common
Stock, and the qualifications, limitations or restrictions thereof, the holders
of the Common Stock shall have and possess all rights pertaining to the Common
Stock. No holder of shares of Common Stock shall be entitled as such, as a
matter of
<PAGE>
preemptive right, to subscribe for, purchase or otherwise acquire any part of
any new or additional issue of stock of any class or series whatsoever of the
Corporation, or of securities convertible into stock of any class or series
whatsoever of the Corporation, or of any warrants or other instruments
evidencing rights or options to subscribe for, purchase or otherwise acquire
such stock or securities, whether now or hereafter authorized or whether issued
for cash or other consideration or by way of dividend.
5. BOARD OF DIRECTORS.
5.1 NUMBER OF DIRECTORS. The total number of directors which
shall constitute the whole board of directors shall be determined in accordance
with the By-laws of the Corporation, but shall not be less than two (2) nor more
than nine (9).
5.2 WRITTEN BALLOT. Unless and to the extent that the By-Laws
so provide, elections of directors need not be by written ballot.
6. LIMITATION OF DIRECTOR LIABILITY.
6.1 LIMITATION. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent such exemption
from liability or limitation thereof is expressly prohibited by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended.
6.2 NO RETROACTIVE CHANGES. Any amendment, termination or
repeal of this Paragraph 6 or any provisions hereof shall not adversely affect
or diminish in any way any right or protection of a director of the Corporation
existing with respect to any act or omission occurring prior to the time of the
final adoption of such amendment, termination or repeal.
6.3 AMENDMENT OF THIS PARAGRAPH. In addition to any
requirements of law or of any other provisions of this Certificate of
Incorporation, the affirmative vote of the holders of not less than seventy
percent (70%) of the total number of votes eligible to be cast by the holders of
all outstanding shares of Capital Stock entitled to vote thereon shall be
required to amend, alter, rescind or repeal any provision of this Paragraph 6.
7. AMENDMENTS.
7.1 AMENDMENTS OF CERTIFICATE OF INCORPORATION. In addition to
any affirmative vote required by applicable law and any voting rights granted to
or held by holders of Preferred Stock, any alteration, amendment, repeal or
rescission (collectively, any "Change") of any provision of this Certificate of
Incorporation must be approved by a majority of the directors of the Corporation
then in office and by the affirmative vote of the holders of a majority (or such
greater proportion as may otherwise be required pursuant to any specific
provision of this Certificate of Incorporation) of the total votes eligible to
be cast by the holders of all outstanding shares of Capital Stock entitled to
vote thereon.
<PAGE>
Except as may otherwise be provided in this Certificate of
Incorporation, the Corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, and to add or insert herein any other provisions
authorized by the laws of the State of Delaware at the time in force, in the
manner now or hereafter prescribed by law, and all rights, preferences and
privileges of any nature conferred upon stockholders, 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 provisions
contained in this Paragraph 7.1.
7.2 AMENDMENTS OF BY-LAWS. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors of the
Corporation is expressly authorized to make, alter, amend, rescind or repeal
from time to time any of the By-laws of the Corporation in accordance with the
terms thereof; provided, however, that any By-law made by the Board may be
altered, amended, rescinded, or repealed by the holders of a majority of the
shares of Capital Stock entitled to vote thereon at any annual meeting or at any
special meeting called for that purpose. Notwithstanding the foregoing, any
provision of the By-laws that contains a supermajority voting requirement shall
only be altered, amended, rescinded, or repealed by a vote of the Board or
holders of shares of Capital Stock entitled to vote thereon that is not less
than the supermajority specified in such provision.
8. INCORPORATOR. The name and mailing address of the sole
incorporator is as follows:
Susan A.T. Tice
Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
<PAGE>
THE UNDERSIGNED, being the incorporator, for the purpose of
forming a corporation pursuant to the provisions of the Delaware General
Corporation Law, does make this certificate, hereby declaring and further
certifying that this is the undersigned's act and deed and that the facts herein
stated are true, and, accordingly, has hereunto set the undersigned's hand this
4th day of May, 1999.
/s/ Susan A.T. Tice
-------------------------------
Susan A.T. Tice
BY-LAWS
OF
IPC COMMUNICATIONS, INC.
ARTICLE I
Stockholders
------------
SECTION 1. ANNUAL MEETING. The annual meeting of the
stockholders of the Corporation shall be held on such date, at such time and at
such place within or without the State of Delaware as may be designated by the
Board of Directors, for the purpose of electing Directors and for the
transaction of such other business as may be properly brought before the
meeting.
SECTION 2. SPECIAL MEETINGS. Except as otherwise provided in
the Certificate of Incorporation, a special meeting of the stockholders of the
Corporation may be called at any time by the Board of Directors or the Chairman
of the Board. Any special meeting of the stockholders shall be held on such
date, at such time and at such place within or without the State of Delaware as
the Board of Directors or the officer calling the meeting may designate. At a
special meeting of the stockholders, no business shall be transacted and no
corporate action shall be taken other than that stated in the notice of the
meeting unless all of the stockholders are present in person or by
<PAGE>
proxy, in which case any and all business may be transacted at the meeting even
though the meeting is held without notice.
SECTION 3. NOTICE OF MEETINGS. Except as otherwise provided in
these By-Laws or by law, a written notice of each meeting of the stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder of the Corporation entitled to vote at
such meeting at his or her address as it appears on the records of the
Corporation. The notice shall state the place, date and hour of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called.
SECTION 4. QUORUM. At any meeting of the stockholders, the
holders of a majority in number of the total outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum of the stockholders for all purposes, unless
the representation of a larger number of shares shall be required by law, by the
Certificate of Incorporation or by these By-Laws, in which case the
representation of the number of shares so required shall constitute a quorum;
provided that at any meeting of the stockholders at which the holders of any
class of stock of the Corporation shall be entitled to vote separately as a
class, the holders of a majority in number of the total outstanding shares of
such class, present in person or represented by proxy, shall constitute a quorum
for purposes of such class vote unless the representation of a larger number of
shares of such class shall be required by law, by the Certificate of
Incorporation or by these By-Laws.
2
<PAGE>
SECTION 5. ADJOURNED MEETINGS. Whether or not a quorum shall
be present in person or represented at any meeting of the stockholders, the
holders of a majority in number of the shares of stock of the Corporation
present in person or represented by proxy and entitled to vote at such meeting
may adjourn from time to time; provided, however, that if the holders of any
class of stock of the Corporation are entitled to vote separately as a class
upon any matter at such meeting, any adjournment of the meeting in respect of
action by such class upon such matter shall be determined by the holders of a
majority of the shares of such class present in person or represented by proxy
and entitled to vote at such meeting. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the stockholders, or the holders of any class of stock
entitled to vote separately as a class, as the case may be, may transact any
business which might have been transacted by them at the original meeting. 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
adjourned meeting.
SECTION 6. ORGANIZATION. The Chairman of the Board, or, in his
absence, the Vice- Chairman of the Board, or, in their absence, the Chief
Executive Officer, or, in the absence of the Chairman of the Board, the
Vice-Chairman of the Board and the Chief Executive Officer, the President, or,
in the absence of the Chairman of the Board, the Vice-Chairman of the Board, the
Chief Executive Officer and the President, a Vice President shall call all
meetings of the stockholders to order, and shall act as Chairman of such
meetings. In the absence of the Chairman of the Board, the Vice-Chairman of the
Board, the Chief Executive Officer, the President and all of
3
<PAGE>
the Vice Presidents, the holders of a majority in number of the shares of stock
of the Corporation present in person or represented by proxy and entitled to
vote at such meeting shall elect a Chairman.
The Secretary of the Corporation shall act as Secretary of all
meetings of the stockholders; but in the absence of the Secretary, the Chairman
may appoint any person to act as Secretary of the meeting. It shall be the duty
of the Secretary to prepare and make, at least ten days before every meeting of
stockholders, a complete list of stockholders entitled to vote at such 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, 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, for the ten days next
preceding the meeting, to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, and shall be produced
and kept at the time and place of the meeting during the whole time thereof and
subject to the inspection of any stockholder who may be present.
SECTION 7. VOTING. Except as otherwise provided in the
Certificate of Incorporation or by law, each stockholder shall be entitled to
one vote for each share of the capital stock of the Corporation registered in
the name of such stockholder upon the books of the Corporation. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him or her by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. When directed by the presiding officer or upon the demand of any
stockholder, the vote upon any matter before a meeting of stockholders shall be
by ballot. Except as otherwise provided by law or by the Certificate of
Incorporation, Directors shall be elected by a plurality of the votes cast at a
meeting of stockholders by the stockholders entitled
4
<PAGE>
to vote in the election and, whenever any corporate action, other than the
election of Directors is to be taken, it shall be authorized by a majority of
the votes cast at a meeting of stockholders by the stockholders entitled to vote
thereon.
Shares of the capital stock of the Corporation belonging to
the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes.
SECTION 8. INSPECTORS. When required by law or directed by the
presiding officer or upon the demand of any stockholder entitled to vote, but
not otherwise, the polls shall be opened and closed, the proxies and ballots
shall be received and taken in charge, and all questions touching the
qualification of voters, the validity of proxies and the acceptance or rejection
of votes shall be decided at any meeting of the stockholders by one or more
Inspectors who may be appointed by the Board of Directors before the meeting, or
if not so appointed, shall be appointed by the presiding officer at the meeting.
If any person so appointed fails to appear or act, the vacancy may be filled by
appointment in like manner. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability.
SECTION 9. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any
action required to be taken at any annual or special meeting of stockholders of
the Corporation, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum
5
<PAGE>
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be made by hand or by certified or registered mail, return receipt
requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty (60) days of
the date the earliest dated consent is delivered to the Corporation, a written
consent or consents signed by a sufficient number of holders to take action are
delivered to the Corporation in the manner prescribed in the first paragraph of
this Section.
ARTICLE II
Board of Directors
------------------
SECTION 1. NUMBER AND TERM OF OFFICE. The business and affairs
of the Corporation shall be managed by or under the direction of a Board of
Directors, none of whom need be stockholders of the Corporation. The number of
Directors constituting the Board of Directors shall be fixed from time to time
by resolution passed by a majority of the Board of Directors. The Directors
shall, except as hereinafter otherwise provided for filling vacancies, be
elected at the annual meeting of stockholders, and shall hold office until their
respective successors are elected and qualified or until their earlier
resignation or removal.
6
<PAGE>
SECTION 2. REMOVAL, VACANCIES AND ADDITIONAL DIRECTORS. The
stockholders may, at any special meeting the notice of which shall state that it
is called for that purpose, remove, with or without cause, any Director and fill
the vacancy; provided that whenever any Director shall have been elected by the
holders of any class of stock of the Corporation voting separately as a class
under the provisions of the Certificate of Incorporation, such Director may be
removed and the vacancy filled only by the holders of that class of stock voting
separately as a class. Vacancies caused by any such removal and not filled by
the stockholders at the meeting at which such removal shall have been made, or
any vacancy caused by the death or resignation of any Director or for any other
reason, and any newly created directorship resulting from any increase in the
authorized number of Directors, may be filled by the affirmative vote of a
majority of the Directors then in office, although less than a quorum, and any
Director so elected to fill any such vacancy or newly created directorship shall
hold office until his or her successor is elected and qualified or until his or
her earlier resignation or removal.
When one or more Directors shall resign effective at a future
date, a majority of the Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each Director so chosen shall hold office as herein provided in connection with
the filling of other vacancies.
SECTION 3. PLACE OF MEETING. The Board of Directors may hold
its meetings in such place or places in the State of Delaware or outside the
State of Delaware as the Board from time to time shall determine.
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SECTION 4. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as the Board from time to time
by resolution shall determine. No further notice shall be required for any
regular meeting of the Board of Directors; but a copy of every resolution fixing
or changing the time or place of regular meetings shall be mailed to every
Director at least five days before the first meeting held in pursuance thereof.
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by direction of the Chairman of the
Board or by any two of the Directors then in office.
Notice of the day, hour and place of holding of each special
meeting shall be given by mailing the same at least two days before the meeting
or by causing the same to be transmitted by facsimile, telegram or telephone at
least one day before the meeting to each Director. Unless otherwise indicated in
the notice thereof, any and all business other than an amendment of these
By-Laws may be transacted at any special meeting, and an amendment of these
By-Laws may be acted upon if the notice of the meeting shall have stated that
the amendment of these By-Laws is one of the purposes of the meeting. At any
meeting at which every Director shall be present, even though without any
notice, any business may be transacted, including the amendment of these
By-Laws.
SECTION 6. QUORUM. Subject to the provisions of Section 2 of
this Article II, a majority of the members of the Board of Directors in office
(but in no case less than one-third of the total number of Directors nor less
than two Directors) shall constitute a quorum for the transaction of business
and the vote of the majority of the Directors present at any meeting of the
Board of Directors at which a quorum is present shall be the act of the Board of
Directors. If at any meeting
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of the Board there is less than a quorum present, a majority of those present
may adjourn the meeting from time to time.
SECTION 7. ORGANIZATION. The Chairman of the Board shall
preside at all meetings of the Board of Directors. In the absence of the
Chairman of the Board, a Chairman shall be elected from the Directors present.
The Secretary of the Corporation shall act as Secretary of all meetings of the
Directors; but in the absence of the Secretary, the Chairman may appoint any
person to act as Secretary of the meeting.
SECTION 8. COMMITTEES. The Board of Directors may designate
one or more committees including, without limitation, compensation and audit
committees, each committee to consist of one 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. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members 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. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and the affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to
approving or adopting, or recommending to the stockholders, any action or matter
expressly required by law to be submitted to stockholders for approval, or
adopting, amending or repealing these By-laws.
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SECTION 9. CONFERENCE TELEPHONE MEETINGS. Unless otherwise
restricted by the Certificate of Incorporation or by these By-Laws, the members
of the Board of Directors or any committee designated by the Board, may
participate in a meeting of the Board or such committee, as the case may be, 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 shall constitute presence in person at such meeting.
SECTION 10. CONSENT OF DIRECTORS OR COMMITTEE IN LIEU OF
MEETING. Unless otherwise restricted by the Certificate of Incorporation or by
these By-Laws, any action required or permitted to be taken at any meeting of
the Board 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, as the case may be.
ARTICLE III
Officers
--------
SECTION 1. OFFICERS. The officers of the Corporation shall be
a Chairman of the Board, Vice-Chairman of the Board, Chief Executive Officer, a
President, one or more Vice Presidents, a Secretary and a Treasurer, and such
additional officers, if any, as shall be elected by the Board of Directors
pursuant to the provisions of Section 7 of this Article III. The Chairman of the
Board, the Vice-Chairman of the Board, the President, the Chief Executive
Officer, one or more Vice Presidents, the Secretary and the Treasurer shall be
elected by the Board of Directors at its first meeting after each annual meeting
of the stockholders. The failure to hold such election shall not of itself
terminate the term of office of any officer. All officers shall hold office at
the pleasure of the
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Board of Directors. Any officer may resign at any time upon written notice to
the Corporation. Officers may, but need not, be Directors. Any number of offices
may be held by the same person.
All officers, agents and employees shall be subject to
removal, with or without cause, at any time by the Board of Directors. The
removal of an officer without cause shall be without prejudice to his or her
contract rights, if any. The election or appointment of an officer shall not of
itself create contract rights. All agents and employees other than officers
elected by the Board of Directors shall also be subject to removal, with or
without cause, at any time by the officers appointing them.
Any vacancy caused by the death, resignation or removal of any
officer, or otherwise, may be filled by the Board of Directors, and any officer
so elected shall hold office at the pleasure of the Board of Directors.
In addition to the powers and duties of the officers of the
Corporation as set forth in these By-Laws, the officers shall have such
authority and shall perform such duties as from time to time may be determined
by the Board of Directors.
SECTION 2. POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD. The
Chairman of the Board shall preside at all meetings of the stockholders and at
all meetings of the Board of Directors and shall have such other powers and
perform such other duties as may from time to time be assigned by these By-Laws
or by the Board of Directors.
SECTION 3. POWERS AND DUTIES OF THE VICE-CHAIRMAN OF THE
BOARD. The Vice- Chairman of the Board shall have all powers and shall perform
all duties incident to the office of
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Vice-Chairman of the Board and shall have such other powers and perform such
other duties as may from time to time be assigned by these By-Laws or by the
Board of Directors or the Chairman of the Board.
SECTION 4. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer shall be the chief executive officer of the
Corporation, have general charge and control of all the Corporation's business
and affairs and, subject to the control of the Board of Directors, shall have
all powers and shall perform all duties incident to the office of Chief
Executive Officer. In the absence of the Chairman of the Board, the Chief
Executive Officer shall preside at all meetings of the stockholders and at all
meetings of the Board of Directors. In addition, the Chief Executive Officer
shall have such other powers and perform such other duties as may from time to
time be assigned by these By-Laws or by the Board of Directors.
SECTION 5. POWERS AND DUTIES OF THE PRESIDENT. The President
shall, subject to the control of the Board of Directors, have all powers and
shall perform all duties incident to the office of President. In the absence of
the Chairman of the Board and the Chief Executive Officer, the President shall
preside at all meetings of the stockholders and at all meetings of the Board of
Directors. In the absence of the Chief Executive Officer, the President shall be
the chief executive officer of the Corporation, have general charge and control
of all the Corporation's business and affairs and shall have such other powers
and perform such other duties as may from time to time be assigned by these
By-Laws or by the Board of Directors.
SECTION 6. POWERS AND DUTIES OF THE VICE PRESIDENTS. Each Vice
President shall have all powers and shall perform all duties incident to the
office of Vice President and shall have such other powers and perform such other
duties as may from time to time be assigned by these
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By-Laws or by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President.
SECTION 7. POWERS AND DUTIES OF THE SECRETARY. The Secretary
shall keep the minutes of all meetings of the Board of Directors and the minutes
of all meetings of the stockholders in books provided for that purpose. The
Secretary shall attend to the giving or serving of all notices of the
Corporation; shall have custody of the corporate seal of the Corporation and
shall affix the same to such documents and other papers as the Board of
Directors, the Chairman of the Board, the Vice-Chairman of the Board, the Chief
Executive Officer or the President shall authorize and direct; shall have charge
of the stock certificate books, transfer books and stock ledgers and such other
books and papers as the Board of Directors, the Chairman of the Board, the
Vice-Chairman of the Board, the Chief Executive Officer or the President shall
direct, all of which shall at all reasonable times be open to the examination of
any Director, upon application, at the office of the Corporation during business
hours. The Secretary shall have all powers and shall perform all duties incident
to the office of Secretary and shall also have such other powers and shall
perform such other duties as may from time to time be assigned by these By-Laws
or by the Board of Directors, the Chairman of the Board, the Vice-Chairman of
the Board, the Chief Executive Officer or the President.
SECTION 8. POWERS AND DUTIES OF THE TREASURER. The Treasurer
shall have custody of, and when proper shall pay out, disburse or otherwise
dispose of, all funds and securities of the Corporation. The Treasurer may
endorse on behalf of the Corporation for collection checks, notes and other
obligations and shall deposit the same to the credit of the Corporation in such
bank or banks or depository or depositories as the Board of Directors may
designate; shall sign all receipts and vouchers for payments made to the
Corporation; shall enter or cause to be entered regularly in the books of the
Corporation kept for the purpose full and accurate accounts of all moneys
received
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or paid or otherwise disposed of and whenever required by the Board of
Directors, the Chairman of the Board, the Vice-Chairman of the Board, the Chief
Executive Officer or the President shall render statements of such accounts. The
Treasurer shall, at all reasonable times, exhibit the books and accounts to any
Director of the Corporation upon application at the office of the Corporation
during business hours; and shall have all powers and shall perform all duties
incident of the office of Treasurer and shall also have such other powers and
shall perform such other duties as may from time to time be assigned by these
By-Laws or by the Board of Directors, the Chairman of the Board, the
Vice-Chairman of the Board, the Chief Executive Officer or the President.
SECTION 9. ADDITIONAL OFFICERS. The Board of Directors may
from time to time elect such other officers (who may but need not be Directors),
including a Controller, Assistant Treasurers, Assistant Secretaries and
Assistant Controllers, as the Board may deem advisable and such officers shall
have such authority and shall perform such duties as may from time to time be
assigned by the Board of Directors, the Chairman of the Board, the Vice-Chairman
of the Board, the Chief Executive Officer or the President.
The Board of Directors may from time to time by resolution
delegate to any Assistant Treasurer or Assistant Treasurers any of the powers or
duties herein assigned to the Treasurer; and may similarly delegate to any
Assistant Secretary or Assistant Secretaries any of the powers or duties herein
assigned to the Secretary.
SECTION 10. GIVING OF BOND BY OFFICERS. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish bonds
to the Corporation for the faithful performance of their duties, in such
penalties and with such conditions and security as the Board shall require.
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SECTION 11. VOTING UPON STOCKS. Unless otherwise ordered by
the Board of Directors, the Chairman of the Board, the Vice-Chairman of the
Board, the Chief Executive Officer, the President or any Vice President shall
have full power and authority on behalf of the Corporation to attend and to act
and to vote, or in the name of the Corporation to execute proxies to vote, at
any meeting of stockholders of any corporation in which the Corporation may hold
stock, and at any such meeting shall possess and may exercise, in person or by
proxy, any and all rights, powers and privileges incident to the ownership of
such stock. The Board of Directors may from time to time, by resolution, confer
like powers upon any other person or persons.
SECTION 12. COMPENSATION OF OFFICERS. The officers of the
Corporation shall be entitled to receive such compensation for their services as
shall from time to time be determined by the Board of Directors.
ARTICLE IV
Indemnification of Directors and Officers
-----------------------------------------
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "Proceeding"), by reason of the fact that he or
she 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 an employee benefit plan
(hereinafter, an "Indemnitee"), 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,
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officer, employee or agent shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, 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 permitted prior thereto), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such Indemnitee in connection therewith and such
indemnification shall continue as to an Indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators; provided, however, that,
except as provided in Section 3 of this Article IV with respect to Proceedings
to enforce rights to indemnification, the Corporation shall indemnify any such
Indemnitee in connection with a Proceeding (or part thereof) initiated by such
Indemnitee only if such Proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.
SECTION 2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 1 of this Article IV shall include the
right to be paid by the Corporation the expenses incurred in defending any
Proceeding for which such right to indemnification is applicable in advance of
its final disposition (hereinafter, an "Advancement of Expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an Advancement
of Expenses incurred by an Indemnitee 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 Indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter, an "Undertaking"), by or on behalf of such Indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal
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(hereinafter, a "Final Adjudication") that such Indemnitee is not entitled to be
indemnified for such expenses under this Section or otherwise.
SECTION 3. RIGHT OF INDEMNITEE TO BRING SUIT. The rights to
indemnification and to the advancement of expenses conferred in Section 1 or 2
of this Article IV shall be contract rights. If a claim under Section 1 or 2 of
this Article IV is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation, except in the case of a
claim for an Advancement of Expenses) in which case the applicable period shall
be twenty days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking the Corporation shall be entitled to
recover such expenses upon a Final Adjudication that, the Indemnitee has not met
any applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the Indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit.
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In any suit brought by the Indemnitee to enforce a right to indemnification or
to an Advancement of Expenses hereunder, or by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or to such
Advancement of Expenses, under this Section or otherwise shall be on the
Corporation.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights to
indemnification and to the Advancement of Expenses conferred in this Article IV
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's certificate of incorporation,
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 5. INSURANCE. 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, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and to the Advancement
of Expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article IV with respect to the indemnification and
Advancement of Expenses of directors and officers of the Corporation.
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ARTICLE V
Stock-Seal-Fiscal Year
----------------------
SECTION 1. CERTIFICATES FOR SHARES OF STOCK. The certificates
for shares of stock of the Corporation shall be in such form, not inconsistent
with the Certificate of Incorporation, as shall be approved by the Board of
Directors. All certificates shall be signed by the Chairman of the Board, the
Vice-Chairman of the Board, the Chief Executive Officer, the President or a Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and shall not be valid unless so signed.
In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates had not ceased
to be such officer or officers of the Corporation.
All certificates for shares of stock shall be consecutively
numbered as the same are issued. The name of the person owning the shares
represented thereby with the number of such shares and the date of issue thereof
shall be entered on the books of the Corporation.
Except as hereinafter, provided, all certificates surrendered
to the Corporation for transfer shall be canceled, and no new certificates shall
be issued until former certificates for the same number of shares have been
surrendered and canceled.
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SECTION 2. LOST, STOLEN OR DESTROYED CERTIFICATES. Whenever a
person owning a certificate for shares of stock of the Corporation alleges that
it has been lost, stolen or destroyed, he or she shall file in the office of the
Corporation an affidavit setting forth, to the best of his or her knowledge and
belief, the time, place and circumstances of the loss, theft or destruction,
and, if required by the Board of Directors, a bond of indemnity or other
indemnification sufficient in the opinion of the Board of Directors to indemnify
the Corporation and its agents against any claim that may be made against it or
them on account of the alleged loss, theft or destruction of any such
certificate or the issuance of a new certificate in replacement therefor.
Thereupon the Corporation may cause to be issued to such person a new
certificate in replacement for the certificate alleged to have been lost, stolen
or destroyed. Upon the stub of every new certificate so issued shall be noted
the fact of such issue and the number, date and the name of the registered owner
of the lost, stolen or destroyed certificate in lieu of which the new
certificate is issued.
SECTION 3. TRANSFER OF SHARES. Shares of stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof, in person or by his or her attorney duly authorized in writing, upon
surrender and cancellation of certificates for the number of shares of stock to
be transferred, except as provided in Section 2 of this Article IV.
SECTION 4. REGULATIONS. The Board of Directors shall have
power and authority to make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
SECTION 5. RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders , or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect
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of any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date on which the resolution fixing the record date is
adopted and which record date shall not be more than sixty (60) nor less than
ten (10) days before the date of any meeting of stockholders, nor more than
sixty (60) days prior to the time for such other action as hereinbefore
described; provided, however, that if no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held, and, for determining stockholders entitled to receive payment of any
dividend or other distribution or allotment of rights or to exercise any rights
of change, conversion or exchange of stock or for any other purpose, the record
date shall be at the close of business on the day on which the Board of
Directors adopts a resolution relating thereto.
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.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than ten (10) days after the date upon which
the resolution fixing the record date is adopted. If no record date has been
fixed by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner
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prescribed by Article I, Section 9 hereof. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
the Delaware General Corporation Law with respect to the proposed action by
written consent of the stockholders, the record date for determining
stockholders entitled to consent to corporate action in writing shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
SECTION 6. DIVIDENDS. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors shall have power to declare
and pay dividends upon shares of stock of the Corporation, but only out of funds
available for the payment of dividends as provided by law.
Subject to the provisions of the Certificate of Incorporation,
any dividends declared upon the stock of the Corporation shall be payable on
such date or dates as the Board of Directors shall determine. If the date fixed
for the payment of any dividend shall in any year fall upon a legal holiday,
then the dividend payable on such date shall be paid on the next day not a legal
holiday.
SECTION 7. CORPORATE SEAL. The Board of Directors shall
provide a suitable seal, containing the name of the Corporation, which seal
shall be kept in the custody of the Secretary. A duplicate of the seal may be
kept and be used by any officer of the Corporation designated by the Board of
Directors, the Chairman of the Board, the Vice-Chairman of the Board, the Chief
Executive Officer or the President.
SECTION 8. FISCAL YEAR. The fiscal year of the Corporation
shall be such fiscal year as the Board of Directors from time to time by
resolution shall determine.
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ARTICLE VI
Miscellaneous Provisions
------------------------
SECTION 1. CHECKS, NOTES, ETC. All checks, drafts, bills of
exchange, acceptances, notes or other obligations or orders for the payment of
money shall be signed and, if so required by the Board of Directors,
countersigned by such officers of the Corporation and/or other persons as the
Board of Directors from time to time shall designate.
Checks, drafts, bills of exchange, acceptances, notes,
obligations and orders for the payment of money made payable to the Corporation
may be endorsed for deposit to the credit of the Corporation with a duly
authorized depository by the Treasurer and/or such other officers or persons as
the Board of Directors from time to time may designate.
SECTION 2. LOANS. No loans and no renewals of any loans shall
be contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized to do so, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust company or
other institution or from any firm, corporation or individual, and for such
loans and advances may make, execute and deliver promissory notes, bonds or
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
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SECTION 3. CONTRACTS. Except as otherwise provided in these
By-Laws or by law or as otherwise directed by the Board of Directors, the
Chairman of the Board, the Vice-Chairman of the Board, the Chief Executive
Officer, the President or any Vice President shall be authorized to execute and
deliver, in the name and on behalf of the Corporation, all agreements, bonds,
contracts, deeds, mortgages, and other instruments, either for the Corporation's
own account or in a fiduciary or other capacity, and the seal of the
Corporation, if appropriate, shall be affixed thereto by any of such officers or
the Secretary or an Assistant Secretary. The Board of Directors, the Chairman of
the Board, the Vice-Chairman of the Board, the Chief Executive Officer, the
President or any Vice President designated by the Board of Directors may
authorize any other officer, employee or agent to execute and deliver, in the
name and on behalf of the Corporation, agreements, bonds, contracts, deeds,
mortgages, and other instruments, either for the Corporation's own account or in
a fiduciary or other capacity, and, if appropriate, to affix the seal of the
Corporation thereto. The grant of such authority by the Board or any such
officer may be general or confined to specific instances.
SECTION 4. WAIVERS OF NOTICE. Whenever any notice whatever is
required to be given by law, by the Certificate of Incorporation or by these
By-Laws to any person or persons, a waiver thereof in writing, signed by the
person or persons entitled to the notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
SECTION 5. OFFICES OUTSIDE OF DELAWARE. Except as otherwise
required by the laws of the State of Delaware, the Corporation may have an
office or offices and keep its books, documents and papers outside of the State
of Delaware at such place or places as from time to time may be determined by
the Board of Directors, the Chairman of the Board, the Vice-Chairman of the
Board, the Chief Executive Officer or the President.
24
<PAGE>
ARTICLE VII
Amendments
----------
These By-Laws and any amendment thereof may be altered,
amended or repealed, or new By-Laws may be adopted, by the Board of Directors at
any regular or special meeting by the affirmative vote of a majority of all of
the members of the Board, provided in the case of any special meeting at which
all of the members of the Board are not present, that the notice of such meeting
shall have stated that the amendment of these By-Laws was one of the purposes of
the meeting; but these By-Laws and any amendment thereof may be altered, amended
or repealed or new By-Laws may be adopted by the holders of a majority of the
total outstanding stock of the Corporation entitled to vote at any annual
meeting or at any special meeting, provided, in the case of any special meeting,
that notice of such proposed alteration, amendment, repeal or adoption is
included in the notice of the meeting.
ARTICLE VIII
Waiver of Section 203
---------------------
The Corporation expressly elects not to be governed by Section
203 of the Delaware General Corporation Law, which election shall, in accordance
with such Section, not be effective until 12 months after the adoption of these
By-Laws and not apply to any business combination between the Corporation and
any person who became an interested stockholder of the Corporation on or prior
to such adoption.
25
[THACHER PROFFITT & WOOD LETTERHEAD]
June 18, 1999
IPC Communications, Inc.
Wall Street Plaza
88 Pine Street
New York, New York 10005
Re: IPC Communications, Inc. 1999 Stock Incentive Plan
--------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for IPC Communications, Inc., a
Delaware corporation ("Corporation"), in connection with the filing of a
registration statement on Form S-8 under the Securities Act of 1933, as amended
("Registration Statement") with respect to 1,538,322 shares of its common stock,
par value $.01 per share ("Shares"), which may be issued pursuant to the IPC
Communications, Inc. 1999 Stock Incentive Plan (the "Plan"). In rendering the
opinion set forth below, we do not express any opinion concerning law other than
the federal law of the United States and the corporate law of the States of New
York and Delaware.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for purposes of this opinion. As to matters
of fact, we have examined and relied upon the Plan described above and, where we
have deemed appropriate, representations or certificates of officers of the
Corporation or public officials. We have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies.
Based on the foregoing, we are of the opinion that the Shares
which are being registered pursuant to the Registration Statement have been duly
authorized and, when issued and paid for in accordance with the terms of the
Plan, such Shares will be validly issued, fully paid and non-assessable.
<PAGE>
IPC Communications, Inc. Page 2.
June 18, 1999
In rendering the opinion set forth above, we have not passed
upon and do not purport to pass upon the application of "doing business" or
securities or "blue-sky" laws of any jurisdiction (except federal
securities law).
This opinion is given solely for the benefit of the
Corporation and purchasers of shares under the Plan, and no other person or
entity is entitled to rely hereon without express written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to our Firm's name therein.
Very truly yours,
THACHER PROFFITT & WOOD
By: /s/ Thomas N. Talley
--------------------
Thomas N. Talley
Exhibit 23-2
Consent of Independent Accountants
We consent to the incorporation by reference in this registration of IPC
Communications, Inc. on Form S-8 of our report dated December 3, 1998, except
for Note 16 for which the date is December 23, 1998 on our audits of the
consolidated financial statements and financial statement schedule of IPC
Information Systems, Inc. as of September 30, 1998 and 1997, and for each of the
three years in the period ended September 30, 1998, which report is included in
the Annual Report on Form 10- K for the fiscal year ended September 30, 1998 of
IPC Information Systems, Inc., as amended.
/s/ PRICEWATERHOUSECOOPERS
New York, New York
June 18, 1999
