U. S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-KSB
(Mark One)
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended May 31, 1999
|_| TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to ______________
Commission File Number 2-90519
Century Laboratories, Inc.
(Name of small business issuer in its charter)
Delaware 72-0510027
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
c/o Edwin Mendlinger, President, 160 East 65th Street - Suite 12F,
New York, NY 10021
(Address of principal executive offices) (Zip Code)
(212) 249-4900
Issuer's telephone number
Securities registered under Section 12(b) of the Exchange Act: None
Securities registered under Section 12(g) of the Exchange Act:
Common Stock, par value $0.01 per share
(Title of Class)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes |_| No
|X|.
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. |X|
State issuer's revenues for its most recent fiscal year: $ 0
At December 1, 1999 5,233,594 shares of Common Stock, $0.01 par value, of
the registrant were outstanding.
The aggregate market value of the Common Stock held by non-affiliates of
the registrant on December 1, 1999 (computed by reference to the average bid and
asked prices of such stock on such date) was $266,085.
Documents incorporated by reference: None
Transitional Small Business Disclosure Format (check one): Yes |_| No |X|
<PAGE>
This Report on Form 10-KSB and the other periodic reports of Century
Laboratories, Inc. (the "Company") and other documents incorporated by reference
or incorporated herein as exhibits, may contain forward-looking statements that
involve risks and uncertainties. Our Company's actual results may differ
materially from the results discussed in the forward-looking statements. Factors
that might cause such a difference include, but are not limited to, our
Company's ability to locate an acquisition candidate or another entity which may
combine its operations with it, our Company's ability and those of management to
manage growth, if any, the substantial dilution that could be experienced by
existing shareholders of our Company with a potential acquisition with another
entity in view of the fact that our Company's current operations have
essentially ceased.
PART I
Item 1. Description of Business.
General.
Our Company was originally formed as a Delaware corporation in 1958 under the
name Carrtone Laboratories, Inc. We engaged in the licensing of patents held by
our Company, collecting royalties on a patent and exploiting and acquiring other
patents and inventions including those related to heart disease treatment,
cancer treatment and asthma treatment technologies.
After pursuing our business and finding the results unsuccessful, we allowed our
patents to lapse and discontinued business operations. We eventually became
inactive and lacked the funds to maintain any operations. Our corporate charter
was thereafter revoked on February 28, 1994 by the State of Delaware for our
failure to file franchise tax reports and pay the required taxes.
We underwent an internal management restructuring in early 1998. Since January
16, 1998, a new President and Director, Edwin Mendlinger, has been serving our
Company. All non- remitted franchise taxes on behalf of our Company have been
paid. We filed a certificate of renewal and revival of certificate of
incorporation pursuant to Section 312 of the General Corporation Law of the
State of Delaware, resulting in the reinstatement of our corporate charter on
March 16, 1999. We are currently searching for a merger or other possible
business transaction with a suitable privately-held company.
However, we also failed to file our periodic reports with the Securities and
Exchange Commission and, as a result, were delisted from the NASD Bulletin
Board. We are attempting to update our SEC reporting in order that we may become
potentially attractive to a privately-held company interested in becoming a
publicly-held company, without the costs and the time incurred in publicly
distributing its securities.
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Proposed Business.
We currently have no operations, no revenues and own no assets and we have not
engaged in any business activities since February 28, 1994. We intend to
restructure ourselves in order to be used as a "public shell" for a suitable
privately-held company with both a business history and operating assets that
has the intention to become public. We do not intend to combine with a
privately-held company determined to be an investment company which would then
subject our Company to the Investment Company Act of 1940, as amended.
We believe a privately-held company intending to merge, consolidate or
reorganize with us will have the advantage of acquiring an ownership interest in
a public company without the costs and the time that would be incurred when
conducting an initial public offering.
We believe that the process of selecting a suitable privately-held company and
the subsequent merger or business transaction with us to become a public company
may be extremely complex and risky. In our search for a suitable privately-held
company to merge with us, we are determined to consider only entities which we
believe have growth opportunities. Because we have no business activities and no
current source of revenue we may be unable to satisfy any liabilities incurred
prior to the combination with a privately-held company. If negotiations and
transactions fail prior to a successful consummation, we may not be able to
continue to pursue new business opportunities with other privately-held
companies. If this occurs, it is foreseeable that our Company's common stock may
become worthless and our stockholders may receive, if any, a nominal
distribution, upon our Company's liquidation and dissolution.
We can not predict the resulting value of the merger or business transaction for
the owners of the privately-held company selected for a business combination.
The privately-held company selected for the business combination may incur
significant expenses and costs associated with the business combination
including legal, accounting and administrative fees and expenses.
Item 2. Description of Property.
We are currently utilizing office space without charge at the residence of our
Company's President at 160 East 65th Street, Apartment 12 F, New York, New York
10021. The size of the space being utilized by us is quite small in view of the
fact that we are presently inactive. At such time as we commence to conduct
active business, or merge or otherwise combine with another entity engaged in
business, our needs will no longer be met by this arrangement and we will have
to acquire alternate premises, which we believe will be available in the New
York metropolitan region on reasonable terms to suit our needs.
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<PAGE>
Item 3. Legal Proceedings.
We are not aware of any material pending legal proceeding to which we are a
party or of which any of our property is the subject and we are not aware of our
Company's involvement in violations of Federal, State or local statutes or
ordinances with environmental protection.
Item 4. Submission of Matters to a Vote of Securityholders.
No matters were submitted during the fourth quarter of the fiscal year covered
by this report to a vote of securityholders.
Part III
Item 5. Market for Common Equity and Related Stockholder Matters.
The Company's Common Stock is traded over the counter and is not listed on any
national or regional exchange. During the fiscal years ended May 31, 1998 and
1999, there were quotations for the Company's Common Stock by one or more
dealers in the "pink sheets" published by The National Quotation Bureau, Inc.
The Company is unable to determine whether such quotations are sufficient to
constitute an "established public trading market" for the Company's Common
Stock. It is the Company's understanding that in addition to quotations
appearing in the "pink sheets", dealers have from time to time otherwise given
bid and asked quotations for the Company's Common Stock.
The following table sets forth the range of high and low bid prices which have
been provided to the Company for each of the quarters for the fiscal years ended
May 31, 1998 and 1999. These prices as so quoted are by dealers to each other
without retail mark-ups, mark-downs or commissions and do not represent actual
transactions.
Fiscal Year Ended Prices Fiscal Year Ended Prices
May 31, 1998 High Low May 31, 1999 High Low
------------ ---- --- ------------ ---- ---
First Quarter .001 .001 First Quarter .02 .02
Second Quarter .001 .001 Second Quarter .02 .02
Third Quarter .02 .001 Third Quarter .02 .02
Fourth Quarter .02 .015 Fourth Quarter .02 .02
As of December 1, 1999, there were 2,607 holders of Common Stock of the Company.
The Company has paid no dividends with respect to its Common Stock during the
past two fiscal years. The Company is not subject to any restriction (other than
non-contractual business considerations) affecting its present or future ability
to pay dividends with respect to its Common
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Stock. However, the Company does not presently have any plans to pay dividends
in the foreseeable future.
Item 6. Plan of Operation.
Plan of Business.
Within the next twelve months, we intend to restructure ourselves in order to be
used as a "public shell" for a suitable privately-held company with both a
business history and operating assets that has the intention to become public.
We do not intend to combine with a privately-held company determined to be an
investment company which would then subject our Company to the Investment
Company Act of 1940, as amended. We believe a privately-held company will
combine with our "public shell" in either a merger, consolidation,
reorganization, or any other form which will subsequently create a publicly-held
company when the two companies combine.
We believe a combination will create the advantage of acquiring an ownership
interest in a public company without the costs or the time that would be
incurred when conducting an initial public offering.
We believe that the process of selecting a suitable privately-held company and
the subsequent merger or business transaction with us to become a public company
may be extremely complex and risky. In our search for a suitable privately-held
company to combine with us, we are determined to consider only companies we
believe have growth potential and opportunities. There may be significant
changes in the number of our employees if a business combination occurs. Because
we will rely on the information as provided by the management of the potential
company, there may be information concerning the potential company that we may
not have discovered through our own investigative research of the management,
key personnel, financial structure and facilities, or information which might
have been concealed by the potential company.
We currently have no revenue, no operations and own no assets. We are an
inactive Delaware corporation and may remain dormant if we do not merge or
combine with another business company. We cannot predict the future financial
condition of our Company. We may be unable to satisfy any liabilities incurred
prior to the combination with a privately-held company. If negotiations and
transactions fail prior to a successful consummation, we may not be able to
continue to pursue business opportunities with other new privately-held
companies. If this occurs, it is foreseeable that our Company's Common Stock may
become worthless and our stockholders may receive, if any, a nominal
distribution, upon our Company's liquidation and dissolution.
We can not predict the resulting value of the merger or business transaction for
the owners of the privately-held company selected for the business combination.
The privately-held company
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selected for the business combination may incur significant expenses and costs
associated with the business transaction including legal, accounting and
administrative fees and expenses. Further, it may be difficult for the combined
companies to afford marketing campaigns, new developments or the ability to
manufacture.
We can not provide any assurance that the combined company will be able to
receive additional equity or debt financing or funding from a third-party if the
combined company subsequently requires it.
Under Delaware Law our certificate of incorporation permits our Board of
Directors to issue up to 1,000,000 shares of "blank check" Preferred Stock. Our
Board of Directors also has the authority to determine the price, rights,
preferences, privileges and restrictions of those shares without any further
vote or action by our stockholders. If we issue preferred stock with voting and
conversion rights, the rights of our common stockholders could be adversely
affected by, among other things, the loss of their voting control to others. Any
additional issuances could also delay, defer or prevent a change in our control,
even if these actions would benefit our stockholders.
Accordingly, our Board of Directors is empowered, without stockholder approval,
to issue preferred stock with dividend, liquidation, conversion, voting or other
rights that could adversely affect the rights of holders of our common stock.
Item 7. Financial Statements.
The independent auditor's report and financial statements listed in the
accompanying index are filed as part of this report. See "Index to Financial
Statements" on page F-1.
Item 8. Changes In and Disagreements With Accountants on Accounting and
Financial Disclosures.
David Suss is our Company's certified public accountant and has audited our
Company's financial position for the fiscal years ending May 31, 1993 through
May 31, 1999. Our former accountants, until May 31, 1992, were the firm of
Nemuroff, Cosmar & Company. There were no disputes with our prior accountants.
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PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons; Compliance
with Section 16(a) of the Exchange Act.
The following table contains information regarding the Executive Officers and
Directors of the Company:
Director
Name Age Principal Occupation Since
- ---- --- -------------------- -----
Edwin Mendlinger 64 Director, President 1998
Louis Birner 73 Director 1999
The following is a brief description of the business experience for the past
five years of the Company's Executive Officers and Directors:
Edwin Mendlinger became our President and a director on January 16, 1998.
For the last five years, Mr. Mendlinger has been President of Abbey Group, Inc.,
a privately owned financial services company. He received a B.S. Degree in
Accounting from New York University and attended the University of Miami School
of Law.
Louis Birner became a director of our Company in April, 1999. For the last
five years, he has been a practicing psychologist. He received a B.A. Degree
from Brooklyn College and a Ph.D. in Psychology from Yeshiva University.
Item 10. Executive Compensation.
Mr. Mendlinger is an officer and a director of our Company and has received no
monetary compensation for services rendered during his tenure. In consideration
for Mr. Mendlinger's services rendered, Mr. Mendlinger was issued 244,500 share
of Common Stock.
Item 11. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth as of December 1, 1999 certain information with
regard to each person known by the Company to own beneficially 5% or more of the
Company's Common Stock, as well as the Common Stock ownership of the all the
executive officers and Directors of the Company as a group. Unless otherwise
stated, the persons named in the table have sole voting and investment power
with respect to all Common Stock shown as beneficially owned by them.
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<PAGE>
Name and Address Common Stock Percent
of Beneficial Owner Beneficially Owned of Class(1)
- ------------------- ------------------ -----------
Estate of Albert Raisin 554,341(2) 10.59%
99 Soundview Drive
Port Washington, NY 11050
Dr. David Rubin 332,500(3) 6.35%
8949 Montrose Way
San Diego, California 92122
Dan Schwinner 279,750(4) 5.35%
121 Cooper Place
New Haven, CT 06515
Edwin Mendlinger 244,500 4.67%
160 East 65th Street, Apt. 12F
New York, New York 10021
All Directors and Officers 244,500 4.67%
as a Group (2 persons)
- ----------
(1) Based on 5,233,594 shares outstanding as of December 1, 1999.
(2) Includes 102,627 shares beneficially owned by the widow of Albert
Raisin, Audrey M. Raisin, and 235,714 shares owned by Puritan Investors
Corporation, of which Albert Raisin was former President and a director. The
Estate of Albert Raisin disclaims beneficial ownership of all shares of the
Common Stock of the Company owned by Audrey M. Raisin. Carrie K. Bellware, the
Estate of Benjamin Raisin, the Estate of Albert Raisin, Audrey M. Raisin, and
other members of their families collectively own approximately 55% of the
outstanding shares of the capital stock of Puritan Investors Corporation. Carrie
K. Bellware, Audrey Raisin, the Estate of Benjamin Raisin and the Estate of
Albert Raisin each disclaims beneficial ownership of all shares of the Common
Stock of the Company owned by Puritan Investors Corporation.
(3) Represents 332,500 shares presently owned by Dr. Rubin and/or his
wife.
(4) Held of record according to the records of the Transfer Agent for the
Company's Common Stock. The Company does not know whether the beneficial
ownership of such shares is the same as the record ownership.
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Item 12. Certain Relationships and Related Transactions.
Edwin Mendlinger received 244,500 shares of our Common Stock as compensation for
services rendered, as described in Item 10 of this Report.
PART IV
Item 13. Exhibits and Reports on Form 8-K.
a. Exhibits
3(a)(1) Certificate of Incorporation, as amended to August 10, 1977(1)
3(a)(2) Certificate of Amendment of Certificate of Incorporation, dated
April 22, 1983(2)
3(a)(3) Certificate of Reduction of Capital, dated April 22, 1983(2)
3(a)(4) Certificate for Renewal and Revival of Charter
3(b) By-Laws of the Company
4(a) Form of Common Stock Certificate for shares of Common Stock, $.01
par value per share, of the Registrant(3)
b. No reports on Form 8-K were filed by the registrant during the
fiscal quarter ended May 31, 1999.
- ----------
(1) Incorporated by reference from the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1992.
(2) Incorporated by reference from the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1983.
(3) Incorporated by reference from the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1981.
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<PAGE>
Item 7
INDEX TO FINANCIAL STATEMENTS
Century Laboratories, Inc.
Years Ended May 31, 1993 through May 31, 1999
Page
----
Report of Independent Auditors..............................................F-1
Balance Sheets--May 31, 1993 through May 31, 1999...........................F-2
Statements of Stockholders' Equity -- Years Ended May 31, 1993
through May 31, 1999......................................................F-3
Statements of Operations--Years Ended May 31, 1993 through May 31, 1999.....F-4
Statements of Cash Flows--Years ended May 31, 1993 through May 31, 1999.....F-5
Notes to Financial Statements...............................................F-6
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<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
CENTURY LABORATORIES, INC.
By: /s/ Edwin Mendlinger
-------------------------------------
Edwin Mendlinger
President
December 9, 1999
In accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated:
Signature Title Date
--------- ----- ----
/s/ Edwin Mendlinger President (principal executive December 9, 1999
- ----------------------- officer and principal financial
Edwin Mendlinger and accounting officer) and
Director
/s/ Louis Birner Director December 9, 1999
- ----------------------
Louis Birner
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Exhibit 3(a)(4) STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
filed 0:9:00 AM 03/08/1999
991090387 - 0524612
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
CERTIFICATE FOR
RENEWAL AND REVIVAL OF CHARTER
CENTURY LABORATORIES, INC., a corporation organized under the laws of the State
of Delaware, the charter of which was voided for Non-payment of taxes, now
desires a restoration, renewal and revival of its charter, and hereby certifies
as follows:
1. The name of this corporation is Century Laboratories, Inc.
2. Its registered office and registered agent in the State of Delaware is The
Corporation Trust Company, located at 1209 Orange Street, City of
Wilmington, County of Newcastle, Postal Code 19801.
3. The date of filing of the original Certificate of Incorporation in
Delaware was June 16, 1958.
4. The date when restoration, renewal and revival of the charter of this
company is to commence is February 28, 1994, at which time its charter
became inoperative and void for non-payment of taxes and this certificate
for renewal and revival is filed by authority of the duly elected
Directors of the corporation in accordance with the laws of the State of
Delaware.
5. This corporation was duly organized and carried out the business
authorized by its charter until March 1,1994, at which time its charter
became inoperative and void for non-payment of taxes and this certificate
for renewal and revival is filed by authority of the duly elected
Directors of the corporation in accordance with the laws of the State of
Delaware.
IN WITNESS WHEREOF, and in compliance with the provisions of Section 312
of the General Corporation Law of the State of Delaware, as amended, providing
for the renewal, extension and restoration of Charters, Edwin Mendlinger,
President, is an authorized officer and has hereunto set his hand to this
Certificate this 8th of March, 1999.
/s/ Edwin Mendlinger
- ----------------------------
Edwin Mendlinger, President
ATTEST:
Edwin Mendlinger
/s/ Edwin Mendlinger
- --------------------
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Exhibit 3(b)
BYLAWS
OF
CENTURY LABORATORIES, INC.
(A Delaware corporation)
ARTICLE I
Meeting of Stockholders
SECTION 1. Annual Meeting. The annual meeting of the stockholders of
Century Laboratories, Inc. (hereinafter, the "Corporation") for the election of
directors and for the transaction of such other proper business shall be held on
such date and at such time as may be fixed by the Board of Directors or, if no
date and time are so fixed, on the first Tuesday of May of each year at the
office of the Corporation or at such other place and at such hour as shall be
designated by the Board of Directors or, if no such time be fixed, then at 10:00
a.m.
SECTION 2. Special Meetings. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board of
Directors or by the holder or holders of more than a majority of the outstanding
shares of Common Stock entitled to vote at such meeting.
SECTION 3. Notice of Meetings. Written notice of each meeting of the
stockholders, which shall state the place, date and hour of the meeting and the
purpose or purposes for which it is called, shall be given not less than ten nor
more than sixty days before the date of such meeting to each stockholder
entitled to vote at such meeting, and if mailed, it shall be deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the Corporation. Any such notice for any meeting
other than the annual meeting shall indicate that it is being issued at the
direction of the Board. Whenever notice is required to be given, a written
waiver thereof signed by the stockholder entitled thereto, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of a stockholder at a meeting shall constitute a waiver of notice of such
meeting, except when the stockholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. 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. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
SECTION 4. Quorum. At any meeting of the stockholders, the holders of the
majority of the shares, issued and outstanding and entitled to vote, shall be
present in person or represented by proxy in order to constitute a quorum for
the transaction of any business. In the
<PAGE>
absence of a quorum, the holders of a majority of the shares present in person
or represented by proxy and entitled to vote may adjourn the meeting from time
to time. At any such adjourned meeting at which a quorum may be present, the
Corporation may transact any business which might have been transacted at the
original meeting. Shares of its own stock 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; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
SECTION 5. Organization. At each meeting of the stockholders, the
President or, in his absence or inability to act, a Vice President of the
Corporation or, in his absence or inability to act, any person chosen by the
majority of those stockholders present in person or represented by proxy shall
act as chairman of the meeting. The Secretary or, in his absence or inability to
act, any person appointed by the chairman of the meeting shall act as secretary
of the meeting and keep the minutes thereof.
SECTION 6. Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
SECTION 7. Voting. Unless otherwise provided in the Certificate of
Incorporation and subject to Section 213 of the General Corporation Law of the
State of Delaware regarding fixing the date for the determination of
stockholders of record, each stockholder shall be entitled to one vote for each
share of capital stock held by such stockholder.
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 by proxy. Any such proxy
shall be delivered to the secretary of such meeting at or prior to the time
designated in the order of business for so delivering such proxies.
Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors. Except as otherwise required by statute, by the
Certificate of Incorporation, or by these Bylaws, a majority of the votes cast
at a meeting of the stockholders shall be necessary to authorize any other
corporate action to be taken by vote of the stockholders. Unless required by
statute or determined by the chairman of the meeting to be advisable, the vote
on any question need not be by ballot. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or by his proxy if there be such proxy, and
shall state the number of shares voted.
SECTION 8. List of Stockholders. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder.
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<PAGE>
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city or other
municipality or community where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by this section or the books of the Corporation, or to vote at
any meeting of stockholders.
SECTION 9. Inspectors. The Board may, but need not, in advance of any
meeting of stockholders, appoint one or more inspectors of election to act at
such meeting or any adjournment thereof. If an inspector or inspectors shall not
be so appointed the chairman of the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an inspector fails
to appear or act, the vacancy may be filled by appointment made by the Board in
advance of the meeting or at the meeting by the chairman of the meeting. Each
inspector, if any, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the number of shares of stock represented at the
meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all stockholders. On request of
the chairman of the meeting or any stockholder entitled to vote thereat, the
inspector or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by him or them and shall execute a
certificate of any fact found by him or them. No director or candidate for the
office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders. Except as otherwise required by subsection
(e) of Section 231 of the General Corporation Law of the State of Delaware, the
provisions of that Section shall not apply to the Corporation.
SECTION 10. Consent of Stockholders in Lieu of Meeting. Any action
required or permitted to be taken at any annual or special meeting of
stockholders of the Corporation 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 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. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
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<PAGE>
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of a Board of Directors. The Board
may exercise all such authority and powers of the Corporation and do all such
lawful acts and things as are not by statute or the Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. The Board
of Directors shall consist of at least one, but no more than nine Directors, as
determined by a majority vote of the entire Board of Directors. Each director
shall hold office until the annual meeting of stockholders of the Corporation
next succeeding his election and until his successor is duly elected and
qualified. Directors need not be stockholders. The Board of Directors, by the
vote of a majority of the entire Board, may increase the number of Directors to
a number not exceeding nine. The Board of Directors, by the vote of a majority
of the entire Board, may decrease the number of Directors to a number not less
than one but any such decrease shall not affect the term of office of any
Director. Vacancies occurring by reason of any such increase shall be filled in
accordance with Section 13 of this Article II.
SECTION 3. Place of Meeting. The Board of Directors shall hold its
meetings at such place, within or without the State of Delaware, as it may from
time to time determine or as shall be specified in the notice of any such
meeting.
SECTION 4. Annual Meeting. The Board shall meet for the purpose of
organization, the election of officers and the transaction of other business as
soon as practicable after each annual meeting of the stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place, within or without the State of Delaware, which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
SECTION 5. Regular Meetings. Regular meetings of the Board shall be held
at such time as the Board may fix. If any day fixed for a regular meeting shall
be a legal holiday at the place where the meeting is to be held, then the
meeting which would otherwise be held on that day shall be held at the same hour
on the next succeeding business day. Notice of regular meetings of the Board
need not be given except as otherwise required by statute or these Bylaws.
SECTION 6. Special Meetings. Special meetings of the Board may be called
by the President or by a majority of the entire Board.
SECTION 7. Notice of Meetings. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required) shall be given
by the Secretary as hereinafter provided in this Section 7, in which notice
shall be stated the time and place of the
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meeting. Except as otherwise required by these Bylaws, such notice need not
state the purposes of such meeting. Notice of each such meeting shall be mailed,
postage prepaid, to each director, addressed to him at his residence or usual
place or business, by first-class mail, at least five (5) days before the day on
which such meeting is to be held, or shall be sent addressed to him at such
place by telegraph, telex, cable or wireless, or be delivered to him personally,
by facsimile or by telephone, at least 24 hours before the time at which such
meeting is to be held. A written waiver of notice, signed by the director
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance by a director at a meeting shall
constitute a waiver of notice of such meeting, except when the director attends
a meeting for the express purpose of objecting at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
SECTION 8. Quorum and Manner of Acting. Except as herein provided, a
majority of the entire Board shall be present in order to constitute a quorum
for the transaction of business at such meeting; and, except as otherwise
required by the Certificate of Incorporation or these Bylaws, the act of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board. In the absence of a quorum at any meeting of the
Board, a majority of the directors present thereat may adjourn such meeting to
another time and place. Notice of the time and place of any such adjourned
meeting shall be given to the directors who were not present at the time of the
adjournment and, unless such time and place were announced at the meeting at
which the adjournment was taken, to the other directors. At any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally called. The directors shall
act only as a Board and the individual directors shall have no power as such.
SECTION 9. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board.
SECTION 10. Telephonic Participation. Members of the Board of Directors
may participate in a meeting of the Board by means of conference telephone or
similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation in such a meeting
shall constitute presence in person at such meeting.
SECTION 11. Organization. At each meeting of the Board, the President or,
in his absence of inability to act, another director chosen by a majority of the
directors present shall act as chairman of the meeting and preside thereat. The
Secretary or, in his absence or inability to act, any person appointed by the
chairman shall act as secretary of the meeting and keep the minutes thereof.
SECTION 12. Resignations. Any director may resign at any time upon written
notice to the Corporation. Any such resignation shall take effect at the time
specified therein or,
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if the time when it shall become effective shall not be specified therein,
immediately upon its receipt; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 13. Vacancies. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. If there are no directors in office, then a special
meeting of stockholders for the election of directors may be called and held in
the manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute less
than a majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder of
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office, in the manner provided by statute. When one or more directors shall
resign from the Board, 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 until the next election of directors and until their successors shall be
elected and qualified.
SECTION 14. Removal of Directors. Any director or the entire Board of
Directors may be removed, either with or without cause, at any time, by the
affirmative vote of the holders of record of a majority of the issued and
outstanding stock entitled to vote for the election of directors of the
Corporation given at a special meeting of the stockholders called and held for
such purpose; and the vacancy or vacancies in the Board caused by such removal
may be filled by such stockholders at such meeting, or, if the stockholders
shall fail to fill such vacancy or vacancies, as provided by these Bylaws.
SECTION 15. Compensation. The Board of Directors shall have authority to
fix the compensation, including fees and reimbursement of expenses, of directors
for services to the Corporation in any capacity.
ARTICLE III
Executive and Other Committees
SECTION 1. Executive and Other Committees. The Board may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. 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 of disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
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disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution, shall have and may exercise all the powers
and authority of the Board in the management of the business and affairs of the
Corporation with the exception of any authority the delegation of which is
prohibited by Section 141 of the General Corporation Law of the State of
Delaware, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Each committee shall keep written minutes of its
proceedings and shall report such minutes to the Board when required.
SECTION 2. General. A majority of any committee may determine its action
and fix the time and place of its meetings unless the Board shall otherwise
provide. Notice of such meeting shall be given to each member of the committee
in the manner provided for in Article II, Section 7. The Board shall have power
at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee. Nothing herein shall be deemed to prevent the Board from
appointing one or more committees consisting in whole or in part of persons who
are not directors of the Corporation; provided, however, that no such committee
shall have or may exercise any authority of the Board.
SECTION 3. Action Without a Meeting. Any action required or permitted to
be taken at any meeting by any committee may be taken without a meeting if all
of the members of the committee consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the committee.
SECTION 4. Telephone Participation. Members of a committee may participate
in a meeting by means of conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at the meeting.
ARTICLE IV
Officers
SECTION 1. Number and Qualifications. The officers of the Corporation
shall include the President, the Treasurer and the Secretary. Any number of
offices may be held by the same person. Such officers shall be elected from time
to time by the Board. Each officer shall hold his office until his successor is
elected and qualified or until his earlier resignation or removal. The Board may
from time to time elect such other officers (including one or more Vice
Presidents (including Executive Vice Presidents and Senior Vice Presidents), one
or more Assistant Treasurers and one or more Assistant Secretaries) and such
agents as may be necessary or desirable for the business of the Corporation.
Such other officers and agents shall have such duties and shall hold their
offices for such terms as may be prescribed by the Board.
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SECTION 2. Resignations. Any officer may resign at any time upon written
notice to the Corporation. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3. Removal. Any officer or agent of the corporation may be
removed, either with or without cause, at any time, by the Board at any meeting
of the Board.
SECTION 4. Vacancies. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, shall be filled for the
unexpired portion of the term of the office which shall be vacant, in the manner
prescribed in these Bylaws for the regular election to such office.
SECTION 5. The President. The President shall be the chief executive
officer of the Corporation and shall have general and active management of the
business and affairs of the Corporation and general and active supervision and
direction over the other officers, agents and employees and shall see that their
duties are properly performed subject, however, to the control of the Board of
Directors. He shall perform all duties incident to the office of President and
such other duties as from time to time may be assigned to him by the Board or
these Bylaws.
SECTION 6. Vice Presidents. Each Vice President, including any Executive
Vice President, shall have such powers and perform such duties as from time to
time may be assigned to him by the Board.
SECTION 7. The Treasurer. The Treasurer shall
(a) have charge and custody of, and be responsible for, all
the funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation;
(c) cause all monies and other valuables to be deposited to
the credit of the Corporation in such depositories as may be designated by
the Board;
(d) receive, and give receipts for, monies due and payable to
the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investment of its funds as ordered or authorized by the Board, taking
proper vouchers therefor; and
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(f) in general, have all the powers and perform all the duties
incident to the office of Treasurer and such other duties as from time to
time may be assigned to him by the Board or the President.
SECTION 8. The Secretary. The Secretary shall
(a) record the proceedings of the meetings of the stockholders
and directors in a minute book to be kept for that purpose;
(b) see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law;
(c) be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such certificates shall
be a facsimile, as hereinafter provided) and affix and attest the seal to
all other documents to be executed on behalf of the Corporation under its
seal;
(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, have all the powers and perform all the duties
incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the Board or the President.
SECTION 9. Officers' Bonds or Other Security. The Corporation may secure
the fidelity of any or all of its officers or agents by bond or otherwise, in
such amount and with such surety or sureties as the Corporation may require.
SECTION 10. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board; provided, however, that the Board may delegate to the President
the power to fix the compensation of officers and agents. An officer of the
Corporation shall not be prevented from receiving compensation by reason of the
fact that he is also a director of the Corporation, but any such officer who
shall also be a director (except in the event there is only one director of the
Corporation) shall not have any vote in the determination of the amount of
compensation paid to him.
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ARTICLE V
Shares, etc.
SECTION 1. Stock Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the name of, the
Corporation by the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the
number of shares owned by him in the Corporation. Any or all of the signatures
on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may nevertheless be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
SECTION 2. Books of Account and Record of Stockholders. The books and
records of the Corporation may be kept at such places, within or without the
State of Delaware, as the Board of Directors may from time to time determine.
The stock record books and the blank stock certificates shall be kept by the
Secretary or by any other officer or agent designated by the Board of Directors.
SECTION 3. Transfer of Shares. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. Except as otherwise
provided by law, the Corporation shall be entitled to recognize the exclusive
right of a person in whose name any share or shares stand on the record of
stockholders as the owner of such share or shares for all purposes, including,
without limitation, the rights to receive dividends or other distributions, and
to vote as such owner, and the Corporation may hold any such stockholder of
record liable for calls and assessments and the Corporation shall not be bound
to recognize any equitable or legal claim to or interest in any such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof. Whenever any transfers of shares shall be made for
collateral security and not absolutely, and both the transferor and transferee
request the Corporation to do so, such fact shall be stated in the entry of the
transfer.
SECTION 4. Regulations. The Board may make such additional rules and
regulations, not inconsistent with these Bylaws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
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SECTION 5. Fixing of Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall (i) not
be more than sixty nor less than ten days before the date of such meeting, (ii)
not be more than ten days after the date upon which the resolution fixing the
record date for consent to corporate action in writing is adopted by the Board
of Directors, and (iii) not be more than sixty days prior to such payment,
exercise of rights or such other action.
SECTION 6. Lost, Stolen or Destroyed Stock Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may, in its discretion, require the
owner of the lost, stolen or destroyed certificate, or his legal representative,
to give the Corporation a bond sufficient, as the Corporation in its absolute
discretion shall determine, to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate. Anything herein to
the contrary notwithstanding, the Corporation, in its absolute discretion, may
refuse to issue any such new certificate, except pursuant to judicial
proceedings under the laws of the State of Delaware.
ARTICLE VI
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 1. Execution of Contracts. Except as otherwise required by
statute, the Certificate of Incorporation or these Bylaws, any contract or other
instrument may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these Bylaws, no officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it pecuniarily
liable for any purpose or to any amount.
SECTION 2. Loans. Unless the Board shall otherwise determine, the
President or any Vice President may effect loans and advances at any time 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 certificates or evidences
of indebtedness of the Corporation, but no officer or officers shall mortgage,
pledge, hypothecate or transfer any securities or other property of the
Corporation other than in connection
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with the purchase of chattels for use in the Corporation's operations, except
when authorized by the Board.
SECTION 3. Checks, Drafts, etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidence of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall from time to time be authorized by the Board.
SECTION 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may from time to time
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. For the purpose of deposit and for the purpose of collection for the
account of the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation.
SECTION 5. General and Special Bank Accounts. The Board may from time to
time authorize the opening and keeping of general and special bank accounts with
such banks, trust companies or other depositories as the Board may designate or
as may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the Board. The Board
may make such special rules and regulations with respect to such bank accounts,
not inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VII
Offices
SECTION 1. Registered Office. The registered office and registered agent
of the Corporation will be as specified in the Certificate of Incorporation of
the Corporation.
SECTION 2. Other Offices. The Corporation may also have such offices, both
within or without the State of Delaware, as the Board of Directors may from time
to time determine or the business of the Corporation may require.
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ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall be so determined by the Board of
Directors.
ARTICLE IX
Seal
The seal of the Corporation shall be circular in form, shall bear the name
of the Corporation and shall include the words and numbers "Corporate Seal",
"Delaware" and the year of incorporation.
ARTICLE X
Indemnification
SECTION 1. General. Each person who was or is a party or is threatened to
be made a party to or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that he or
she, or a person of whom he or she is or was the legal representative, is or was
a director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such Proceeding is
an alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment), against all expenses, liabilities and
losses (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement), actually and reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
Section 2 of this Article X, the Corporation shall indemnify any such person
seeking indemnification in connection with a Proceeding (or part thereof)
initiated by such person only if such Proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article X shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such Proceeding in advance of its final disposition; provided,
however, that, if the General Corporation Law of the State of Delaware requires
the payment of such
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expenses incurred by a director or officer in his or her capacity as a director
or officer, (and not in any other capacity in which service was or is rendered
by such person while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
Proceeding, such advancement shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article X or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
SECTION 2. Claims. If a claim under Section 1 of this Article X is not
paid in full by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful as a whole or in part, the claimant also shall be entitled to be paid
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred by
defending any Proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall not create a presumption that the claimant has not met the
applicable standard of conduct.
SECTION 3. Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Article X shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, these Bylaws, agreement, vote of
stockholders or disinterested directors, or otherwise.
SECTION 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any person who is or was a director, officer,
employee or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any such 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 General
Corporation Law of the State of Delaware.
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ARTICLE XI
Amendment
The Bylaws may be adopted, amended, or repealed by vote of the holders of
a majority of the shares of stock at the time entitled to vote in the election
of directors, except as otherwise provided in the Certificate of Incorporation.
The Bylaws may also be adopted, amended or repealed by the Board of Directors,
but any Bylaw adopted by the Board of Directors may be amended, repealed or
altered by the stockholders entitled to vote thereon as herein provided.
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