UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
FORM 10-K/A
Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For Fiscal Year Ended June 30, 1998
AMENDMENT NO. 1
GRC International, Inc.
-----------------------
(Exact name of registrant as specified in its charter)
The undersigned registrant hereby amends the following items, financial
statements, exhibits or other portions of its Annual Report on Form 10-K for the
Fiscal Year Ended June 30, 1998 (the "Form 10-K") as set forth in the pages
attached hereto:
Exhibit 3.2: The Company's Bylaws
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf of the
undersigned hereunto duly authorized.
GRC INTERNATIONAL, INC.
Date: September 22, 1998 By: /s/ Timothy C. Halsey
--------------------------
Timothy C. Halsey
Controller,
(Acting) Chief Financial
Officer & (Acting) Chief
Accounting Officer
<PAGE>
SIGNATURES
Pursuant to the requirements of section 13 or 15(d) of the Securities
and Exchange Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
GRC INTERNATIONAL INC.
Date: September 22, 1998 By: /s/ Gary Denman
------------------ -----------------------------
Gary Denman
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy C. Halsey his attorney-in-fact,
with the power of substitution, for him in any and all capacities, to sign any
amendments to this Report, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorney-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the Securities and Exchange Act of 1934, this Report has
been signed below by the following persons on behalf of the Registrant and in
the capacities and on the dates indicated:
Date: September 22, 1998 By: /s/ Gary Denman
------------------ ------------------------------
Gary Denman
President and Chief Executive
Officer
Date: September 22, 1998 By: /s/ Timothy C. Halsey
------------------ -----------------------------
Timothy C. Halsey
Controller,
(Acting) Chief Financial
Officer & (Acting) Chief
Accounting Officer
<PAGE>
Date: September 22, 1998 By: /s/ Joseph R. Wright, Jr. *
------------------ -------------------------------
Joseph R. Wright, Jr., Chairman
of the Board of Directors
Date: September 22, 1998 By: /s/ Peter A. Cohen *
------------------ -------------------------------
Peter A. Cohen, Vice Chairman
of the Board of Directors
Date: September 22, 1998 By: /s/ H. Furlong Baldwin *
------------------ ------------------------------
H. Furlong Baldwin, Director
Date: September 22, 1998 By: /s/ Frank J.A. Cilluffo *
------------------ ------------------------------
Frank J.A. Cilluffo, Director
Date: September 22, 1998 By: /s/ Leslie B. Disharoon *
------------------ ------------------------------
Leslie B. Disharoon, Director
Date: September 22, 1998 By: /s/ Charles H.P. Duell *
------------------ ------------------------------
Charles H.P. Duell, Director
Date: September 22, 1998 By: /s/ Edward C. Meyer *
------------------ ------------------------------
Edward C. Meyer, Director
Date: September 22, 1998 By: /s/ George R. Packard *
------------------ ------------------------------
George R. Packard, Director
Date: September 22, 1998 By: /s/ Herbert Rabin *
------------------ ------------------------------
Herbert Rabin, Director
Date: September 22, 1998 By: /s/ Jim Roth *
------------------ ------------------------------
Jim Roth, Director
Date: September 22, 1998 By: /s/ E. Kirby Warren *
------------------ ------------------------------
E. Kirby Warren, Director
* /s/ Timothy C. Halsey
- -----------------------
Timothy C. Halsey
Power of Attorney
<PAGE>
INDEX TO EXHIBITS
(Exhibit Numbers correspond to Exhibit Table,
Regulation S-K, Item 601)
<TABLE>
<CAPTION>
Exhibit
Number Page
<S> <C> <C>
3.1 Restated Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to the 1994 Form 10-K)
3.2 Bylaws -----
10.1* 1985 Employee Stock Option Plan (incorporated by reference to
Exhibit 10.1 to the 1996 Form 10-K)
10.2* 1994 Employee Option Plan (incorporated by reference to Exhibit
10.2 to the 1997 Form 10-K)
10.3* 1996 Officers Stock Option Plan -----
10.4* 1998 Option Plan -----
10.5* Cash Compensation Replacement Plan (incorporated by reference to
Exhibit 10.4 to the 1997 Form 10-K)
10.6* Incentive Compensation Plan (incorporated by reference to Exhibit
10.7 to the 1995 Form 10-K)
10.7* Directors Fee Replacement Plan (incorporated by reference to
Exhibit 10.6 to the 1997 Form 10-K)
10.8* Directors Phantom Stock Plan (incorporated by reference to
Exhibit 10.7 to the 1996 Form 10-K)
10.9* Directors Retirement Plan (incorporated by reference to Exhibit
10.8 to the 1997 Form 10-K)
10.10 Amended and Restated Revolving Credit and Term Loan Agreement
("Loan Agreement"), with Exhibits, with Mercantile-Safe Deposit &
Trust Company ("Mercantile"), dated as of February 12, 1996,
First Confirmation and Amendment thereto dated May 15, 1996,
Second Confirmation and Amendment thereto dated July 18, 1996,
and Third Confirmation and Amendment thereto dated September 24,
1996 (incorporated by reference to Exhibit 10.9 to the 1996 Form
10-K)
10.11 Fourth Confirmation and Amendment dated February 7, 1997 to Loan
Agreement between the Company and Mercantile (incorporated by
reference to Exhibit 10.1 to the Company's Form 10-Q for the
quarter ended December 31, 1996)
<PAGE>
10.12 Fifth Confirmation and Amendment dated April 30, 1997 to Loan
Agreement between the Company and Mercantile (incorporated by
reference to Exhibit 10.1 to the Company's Form 10-Q for the
quarter ended March 31, 1997)
10.13 Sixth Confirmation and Amendment dated May 13, 1997 to Loan
Agreement between the Company and Mercantile (incorporated by
reference to Exhibit 10.2 to the Company's Form 10-Q for the
quarter ended March 31, 1997)
10.14 Third Allonge to Secured Note (Commercial) of GRC International,
Inc. to Mercantile-Safe Deposit & Trust Company in the Principal
Amounts of $2,200,000 dated February 12, 1996; $400,000 dated
March 8, 1996; and $2,600,000 dated June 7, 1996 -----
10.15 Lease Agreement dated as of June 30, 1989, with Exhibits, between
the Company and Centennial III Limited Partnership (incorporated
by reference to Exhibit 10.17 to the 1989 Form 10-K)
10.16 Lease Amendment No. 1, with Exhibits, to Lease between the
Company and Centennial III Limited Partnership (incorporated by
reference to Exhibit 10.6 to the 1990 Form 10-K)
10.17 Lease Amendments Nos. 2, 3, 4 and 5 to Lease between the Company
and Richmond Land Corporation (as successor to Centennial III
Limited Partnership) (incorporated by referenced to Exhibit 10.12
to the 1994 Form 10-K)
10.18 Lease Amendment No. 6 to Lease between the Company and Richmond
Land Corporation (as successor to Centennial III Limited
Partnership) (incorporated by referenced to Exhibit 10.13 to the
1995 Form 10-K)
10.19 Amended and Restated Rights Agreement dated June 30, 1995 between
the Company and the American Stock Transfer & Trust Company
(incorporated by referenced to Exhibit 10.14 to the 1995 Form
10-K)
10.20* Employment Agreement between the Company and Jim Roth dated as of
July 1, 1995 (incorporated by reference to Exhibit 10.16 to the
1996 Form 10-K)
10.21* Amendment Number One to Employment Agreement between the Company
and Jim Roth dated as of June 30, 1998 -----
10.22* Note dated July 9, 1992, and Deed of Trust dated as of August 11,
1993, by and between the Company and Jim Roth (incorporated by
reference to Exhibit 10.15 to the 1994 Form 10-K)
<PAGE>
10.23* Amendment to Deed of Trust Note dated as of March 26, 1998 -----
10.24* Independent Contractor Agreement dated as of July 1, 1998 between
the Company and Jim Roth -----
10.25* Employment Agreement between the Company and Gary L. Denman -----
10.26* Form of Employment Agreement for Thomas E. McCabe and Ronald B.
Alexander -----
10.27* Form of Employment Agreement for James L. Selsor and Michael G.
Stolarik -----
10.28 Building Lease between the Company and Bermant Development
Company (incorporated by reference to Exhibit 10.21 to the 1995
Form 10-K)
10.29 First and Second Amendments to Building Lease between the Company
and Bermant Development Company (incorporated by reference to
Exhibit 10.23 to the 1997 Form 10-K)
10.30 Convertible Securities Subscription Agreement dated as of January
21, 1997 between the Company and Halifax Fund, L.P. ("Halifax")
(incorporated by reference to Exhibit 10.2 to the Company's Form
10-Q for the quarter ended December 31, 1996)
10.31 $4,000,000 5% Convertible Debenture Due January 30, 2000 (the
"Debenture") issued by the Company to Halifax (incorporated by
reference to Exhibit 10.3 to the Company's Form 10-Q for the
quarter ended December 31, 1996)
10.32 320,000 Share Common Stock Purchase Warrant issued by the Company
to Halifax in connection with the Debenture (incorporated by
reference to Exhibit 10.4 to the Company's Form 10-Q for the
quarter ended December 31, 1996)
10.33 Registration Rights Agreement dated as of January 30, 1997
between the Company and Halifax relating to the Debenture
(incorporated by reference to Exhibit 10.5 to the Company's Form
10-Q for the quarter ended December 31, 1996)
10.34 Structured Equity Line Flexible Financing Agreement ("Equity Line
Agreement") dated as of January 21, 1997 (amended and restated as
of August 26, 1998) between the Company and Cripple Creek
Securities, LLC ("Cripple Creek")
<PAGE>
10.35 125,000 Share Common Stock Purchase Warrant issued by the Company
to Cripple Creek in connection with the Equity Line Agreement
(incorporated by reference to Exhibit 10.7 to the Company's Form
10-Q for the quarter ended December 31, 1996)
10.36 Registration Rights Agreement dated as of January 30, 1997
between the Company and Cripple Creek relating to the Equity Line
Agreement (incorporated by reference to Exhibit 10.8 to the
Company's Form 10-Q for the quarter ended December 31, 1996)
11 Statement of Computation of Earnings Per Share -----
21 Subsidiaries of the Registrant -----
23 Consent of Deloitte & Touche LLP (included on Page 43 of Form
10-K)
24 Powers of Attorney (included as a part of signature pages to the
Form 10-K)
27 Financial Data Schedule -----
* Indicates management contract or compensatory plan.
</TABLE>
BYLAWS OF GRC INTERNATIONAL, INC.
---------------------------------
ARTICLE I. OFFICES
------------------
Section 1. Registered Office
-----------------
The registered office of GRC International, Inc. in the State of Delaware shall
be located at 32 Loockerman Square, Suite L-100, City of Dover, County of Kent.
The name of its registered agent in charge thereof shall be the United States
Corporation Company.
Section 2. Other Offices
-------------
The Corporation shall maintain its principal and corporate offices in the State
of Virginia, and may also have an office at such other place or places, either
within or without the State of Delaware, as may be designated by the Board of
Directors.
ARTICLE II. SHAREHOLDERS' MEETINGS
----------------------------------
Section 1. Place of Meeting
----------------
All meetings of the shareholders shall be held at the principal office of the
Corporation in the State of Virginia, or such other place as may be designated
from time to time by the Board of Directors.
Section 2. Annual Meeting
--------------
The annual meeting of shareholders shall be held on the first Thursday of
November each year, if not a legal holiday, and if a legal holiday, then on the
next succeeding business day, at the hour of 1:30 p.m. In the event the annual
meeting of shareholders is not held on the date above specified, the Board of
Directors shall cause a meeting in lieu thereof to be held as soon thereafter as
is convenient, and any business transacted or election held at such meeting
shall be as valid as if the meeting had been held on the date above specified.
Section 3. Special Meetings
----------------
Special meetings of the shareholders may be called by the Board of Directors, a
majority of the directors then in office, although less than a quorum, or the
sole remaining director. The call shall designate the place and the time of the
meeting.
Section 4. Notice of Meetings
------------------
Notice of meetings, annual or special, shall be given in writing to shareholders
entitled to vote by the Secretary or Assistant Secretary, or if there be no such
officers, or in the case of neglect or refusal, by any director or shareholder.
Such notices shall be sent to the shareholder's address appearing on the books
of the Corporation for the purpose of notice, not less than ten days before said
meeting.
<PAGE>
Notice of any meeting of shareholders shall specify the place, the day, and the
hour of meeting, and in case of a special meeting, the general nature of the
business to be transacted.
When a meeting is adjourned for 30 days or more, notice of the adjourned meeting
shall be given as in the case of an original meeting. Save as aforesaid, it
shall not be necessary to give any notice of the adjournment or of the business
to be transacted at an adjourned meeting other than by announcement at the
meeting at which such adjournment is taken.
Section 5. Consent to Shareholders Meetings
--------------------------------
The transaction of any meeting of shareholders, however called and noticed,
shall be valid as though had at a meeting duly held after regular call and
notice, if a quorum be present either in person or by proxy, and if, either
before or after the meeting, each of the shareholders entitled to vote, not
present in person or proxy, signs a written waiver of notice, or a consent to
the holding of such meeting, or an approval of the minutes thereof. All such
waivers, consents, or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Section 6. Quorum
------
The holders of a majority of the shares entitled to vote thereat, present in
person or represented by proxy, shall be requisite and shall constitute a quorum
at all meetings of the shareholders for the transaction of business, except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. If, however, such majority shall not be present or represented at any
meeting of the shareholders, the shareholders entitled to vote thereat, present
in person or by proxy, shall have the power to adjourn the meeting from time to
time, until the requisite amount of voting shares shall be present. At such
adjourned meeting at which the requisite amount of voting shares shall be
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
Section 7. Voting Rights; Cumulative Voting
--------------------------------
Only persons in whose names shares entitled to vote stand on the stock records
of the Corporation on the day of any meeting of shareholders, and unless some
other day be fixed by the Board of Directors for the determination of
shareholders of record, then on such other day, shall be entitled to vote at
such meeting.
Every shareholder entitled to vote shall be entitled to one vote for each of
said shares. It is further provided, however, that at all elections of directors
of this Corporation, each holder of common stock shall be entitled to as many
votes as shall equal the number of votes which (except for this provision as to
cumulative voting) he would be entitled to cast for the election of directors
with respect to his shares of common stock multiplied by the number of directors
to be elected, and he may cast all of his votes for a single nominee for
director or may distribute them among the number to be voted for, or for any two
or more of them as he may see fit.
Section 8. Proxies
-------
Every shareholder entitled to vote may do so, either in person or by written
proxy, executed in accordance with the laws of the State of Delaware, and filed
with the Secretary or Assistant Secretary of the Corporation.
<PAGE>
Section 9. Shareholder Proposals
---------------------
Prior to an annual shareholder meeting at which a shareholder or shareholders
propose a matter to be voted upon by the shareholders, other than a matter
relating to the nomination for election of directors pursuant to Article III,
Section 4 of these Bylaws, the shareholder or shareholders that wish to make
such proposal are required to provide notice to the Corporation of the intention
to make such proposal no later than 120 days prior to the anniversary date of
the initial mailing of proxy materials by the Corporation in connection with the
immediately preceding annual meeting.
ARTICLE III. DIRECTORS; MANAGEMENT
----------------------------------
Section 1. Powers
------
Subject to the limitations of the Certificate of Incorporation, of the Bylaws
and the laws of the State of Delaware, as to action to be authorized or approved
by the shareholders, all corporate powers shall be exercised by or under
authority of, and the business and affairs of this Corporation shall be
controlled by the Board of Directors.
Section 2. Number
------
The number of directors constituting the entire Board shall not be less than 7
or more than 14 as fixed from time-to-time by vote of a majority of the entire
Board; provided, however, that the number of directors shall not be reduced so
as to shorten the term of any director at the time in office; and provided
further, that the number of directors constituting the entire Board shall be 11
unless otherwise fixed by a majority of the entire Board.
Section 3. Classes of Directors
--------------------
The directors shall be divided into three classes. If the total number of
directors is not exactly divisible by three, one class, and if necessary, two
classes, shall each contain one more director than the remaining class or
classes.
Section 4. Nominations of Directors
------------------------
Nominations for the election of directors may be made by the Board of Directors
or by any shareholder entitled to vote for the election of directors. Such
nominations shall be made by notice in writing, delivered or mailed by first
class United States mail, postage prepaid, to the Secretary of the Corporation
not less than ten (10) days and not more than one hundred twenty (120) days
prior to any meeting of the stockholders called for the election of directors,
including any annual meeting at which directors are to be elected; provided,
however, that if less than fourteen (14) days written notice of the meeting is
given to stockholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of the
fourth day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of Directors
shall be given by the Chairman on behalf of the Board.
<PAGE>
Each such notice shall set forth (i) the name, age, business address, and, if
known, residence address of each nominee proposed in such notice; (ii) the
principal occupation or employment of each such nominee; (iii) the number of
shares of stock of the Corporation which are beneficially owned by each such
nominee; and (iv) the number of shares owned by any corporation or entity of
which such nominee is an officer, director, partner, employee or agent, directly
or indirectly.
The Chairman of the meeting may, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section 5. Election of Directors
---------------------
The directors of one class shall be elected by a ballot at the annual meeting of
the shareholders, to serve for three years, and until their successors are
elected and have qualified. Their term of office shall begin immediately after
election.
Elections for directors in the first class shall be held at the first annual
meeting of the shareholders. Directors of the second class shall be elected at
the second annual meeting of shareholders, and directors of the third class
shall be elected at the third annual meeting of shareholders.
Section 6. Vacancies
---------
Any vacancy or vacancies in the Board of Directors for any reason, and any newly
created directorships, may be filled by the Board of Directors.
Vacancies in the Board of Directors may be filled by a majority of the remaining
directors though less than a quorum, or by a sole remaining director, and each
director so elected shall hold office for the remainder of the term and until
the next election of the class for which such director shall have been chosen
and until their successors shall be elected and qualified.
If any director tenders his resignation to the Board of Directors, to take
effect at a future time, the Board shall have the power to elect a successor to
take office at such time as the resignation shall become effective.
No reduction of the number of directors shall have the effect of removing any
director prior to the expiration of his term of office.
Section 7. Meetings
--------
Meetings of the Board of Directors shall be held at the principal office of the
Corporation in Vienna, Virginia, or as designated from time to time by the Board
of Directors. Any meeting shall be valid wherever held, if held by the written
consent of all the members of the Board of Directors, given either before or
after the meeting and filed with the Secretary or Assistant Secretary of the
Corporation.
<PAGE>
Section 8. Organization Meetings
---------------------
The organization meetings of the Board of Directors shall be held immediately
following the adjournment of the annual meeting of the shareholders.
Section 9. Other Regular Meetings
Regular meetings of the Board of Directors shall be held on the fourth Thursday
of every other month (except that the November meeting shall be held on the
first Thursday of November) at 10:00 a.m. or else at a date and time fixed by
the Board at its last regular meeting. If said day shall fall upon a holiday,
then such meeting shall be held upon the next succeeding business day
thereafter. No notice need be given of such regular meetings.
Section 10. Special Meetings - Notices
--------------------------
Special meetings of the Board of Directors for any purpose or purposes shall be
called at any time by the President, or if he is absent, or unable or refuses to
act, by any Vice President or by any two directors.
Written notice of the time and place of special meetings shall be (i)
hand-delivered to each director, or (ii) sent to each director by mail, telegram
or express courier (such as Federal Express), charges prepaid, addressed to such
director at his or her address as it is shown upon the records of the
Corporation, or if it is not so shown on such records or is not readily
ascertainable, at the place in which the meetings of directors are regularly
held. In case such notice is delivered by mail, telegram or express courier, it
shall be deposited in the United States mail or delivered to the telegram
company or express courier in the place in which the principal office of the
Corporation is located at least forty-eight (48) hours prior to the time of the
holding of the meeting. In case such notice is hand-delivered as above provided,
it shall be so delivered at least twenty-four (24) hours prior to the time of
the holding of the meeting. Delivery as above provided shall be due, legal and
personal notice to such director.
Section 11. Waiver of Notice
----------------
When all the directors are present at any directors' meeting however called or
noticed, and sign a written consent thereto on the records of such meeting, or
if a majority of the directors are present and if those not present sign in
writing a waiver of notice of such meeting, whether prior to or after the
holding of such meeting, which said waiver shall be filed with the Secretary or
Assistant Secretary of the Corporation, the transactions thereof are as valid as
if had at a meeting regularly called and noticed.
Section 12. Action of Directors Without a Meeting
-------------------------------------
Any action required or permitted to be taken by the Board of Directors under any
provision of the Delaware law, the Certificate of Incorporation, or these
Bylaws, may be taken without a meeting, if all members of the Board shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
<PAGE>
Section 13. Quorum
------
A majority of the number of directors as fixed by the Certificate or Bylaws
shall be necessary to constitute a quorum for the transaction of business, and
the action of a majority of the directors present at any meeting at which there
is a quorum, when duly assembled, is valid as a corporate act; provided that a
minority of the directors, in the absence of a quorum, may adjourn from time to
time, but may not transact any business.
Section 14. Indemnification and Insurance
-----------------------------
a) Right to Indemnification. Each person who is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, (hereinafter a "proceeding"),
by reason of the fact that he, or a person of whom he is the legal
representative, (i) is or was a director or officer of the Corporation; (ii)
while serving as a director or officer of the Corporation, also is or was
serving at the request of the Corporation in a director, officer, trustee or
similar capacity for any other enterprise; or (iii) while serving as a director,
officer or employee of the Corporation, also is or was serving at the request of
the Corporation in a fiduciary, administrative, advisory or similar capacity
with respect to one or more employee benefit plans maintained by the
Corporation; shall be indemnified and held harmless by the Corporation to the
fullest extent required, permitted or not prohibited by Delaware law, including
(but not limited to) 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 said law permitted the Corporation to provide prior
to such amendment), against all awards and expenses (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement), reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue even if such person has
ceased to be a director or officer and shall inure to the benefit of his heirs,
executors and administrators; provided, however, except as provided in
subsection 14(b) hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred in
this Section 14 shall be a contract right and shall include the right to be paid
by the Corporation any expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his capacity as a director or officer in advance of the
final disposition of a proceeding 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
person is not entitled to be indemnified under this Section 14 or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification
and advancement of expenses to employees and agents of the Corporation with the
same scope and effect as are provided to directors and officers herein.
b) Processing of Claims. A claim made by a person under this Section 14 shall be
paid in full within thirty (30) days after such claim has been received in
writing by the Corporation, unless independent legal counsel has determined in a
letter to the Corporation, with a copy to such person, that indemnification of
such person would be prohibited, in whole or in part, under applicable law, or
that a claim for expenses shall not be paid, in whole or in part, on the grounds
that it is unreasonably high (with the amount by which such expenses are
unreasonably high
<PAGE>
stated therein). Any such determination letter given by independent legal
counsel within thirty (30) days of the filing of a claim shall be conclusive and
binding on the Corporation and on such person. If, within thirty (30) days after
the filing of such claim, the Corporation has not paid such person the full
amount of the claim or such lesser amount as determined by independent legal
counsel, such person shall have the right to commence legal action for payment
in any court having jurisdiction thereof, and in which venue is proper.
c) Insurance.
---------
(1) Subject to the provisions of subsection (c)(2) hereof, the
Corporation hereby agrees to purchase and maintain in effect for the benefit of
the directors and officers one or more valid, binding and enforceable policies
of liability insurance providing, in all respects, coverage substantially
comparable to or superior to that presently in force.
(2) The Corporation shall not be required either to obtain or maintain
such policy or policies of insurance in effect if said insurance is not
reasonably available or if, in the reasonable business judgment of the then
directors of the Corporation, either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage; or (ii) the coverage
provided by such insurance is so limited by exclusions that there is
insufficient benefit from such insurance.
d) Indemnification Agreements. The Board of Directors of the Corporation is
expressly authorized to enter into indemnification agreements, with such persons
as the Board deems appropriate, to effectuate the rights set forth in this
Section 14.
ARTICLE IV. OFFICERS
--------------------
Section 1. Officers
--------
The officers shall be: Chairman of the Board; President; one or more Vice
Presidents, one of whom may be designated Executive Vice President, one of whom
may be designated Chief Operating Officer, and one or more of whom may be
designated Senior Vice President; Secretary; one or more Assistant Secretaries;
General Counsel; Treasurer; and may include an Assistant Treasurer. Such
officers shall be elected by, and hold office at the pleasure of, the Board of
Directors.
Section 2. Election
--------
After their election, the directors shall meet and organize by electing a
Chairman of the Board from their own number; a President from their own number;
one or more Vice Presidents, one of whom may be designated Executive Vice
President, one of whom may be designated Chief Operating Officer, and one or
more of whom may be designated Senior Vice President; a Secretary; one or more
Assistant Secretaries; a General Counsel; a Treasurer; and, at their discretion,
an Assistant General Counsel and/or an Assistant Treasurer. The Chairman of the
Board and the President shall be members of the Board of Directors. Any two or
more of such offices, except those of the President and Secretary or Assistant
Secretary, may be held by the same person.
<PAGE>
Section 3. Compensation and Tenure of Office
---------------------------------
The compensation and tenure of office of all the officers of the Corporation
shall be fixed by the Board of Directors.
Section 4. Removal and Resignation
-----------------------
Any officer may be removed, either with or without cause, by a majority of the
directors at the time in office, at any regular or special meeting of the Board,
or, except in case of an officer chosen by the Board of Directors, by any
officer upon whom such power of removal may be conferred by the Board of
Directors.
Any officer may resign at any time by giving written notice to the Board of
Directors or to the President, or to the Secretary or Assistant Secretary of the
Corporation. Any such resignation shall take effect at the date of receipt of
such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 5. Vacancies
---------
A vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in the Bylaws for
regular appointments to such office.
Section 6. Chairman of the Board
---------------------
The Chairman of the Board shall be a member of the Board of Directors. He shall
preside at all meetings of the shareholders and the Board of Directors and, in
the absence or disability of the President, he shall perform all functions of
the office of the President of the Corporation. He may be a regular member of
one or more of the standing committees (except the Audit Committee) and, in any
event, he shall be an ex-officio member of all the standing committees upon
which he does not serve as a regular standing member. He shall have such powers
and duties as may be prescribed by the Board of Directors or the Bylaws.
Section 7. President
---------
The President shall be the Chief Executive Officer of the Corporation and, if no
other Chief Operating Officer is named, the Chief Operating Officer of the
Corporation, and, subject to the control of the Board of Directors or the
Chairman of the Board, the President shall have general supervision, direction
and control of the day-to-day operations of the Corporation. In the absence of
the Chairman of the Board, he shall preside at all meetings of the shareholders
and Board of Directors. He may be a regular member of one or more of the
standing committees (except the Audit Committee) and, in any event, he shall be
ex-officio a member of the Executive Committee. He shall have the general powers
and duties of management usually vested in the office of President of the
Corporation, and shall have such other powers and duties as may be prescribed by
the Board of Directors and the Bylaws.
<PAGE>
Section 8. Chief Operating Officer
-----------------------
The Chief Operating Officer shall possess the power and may perform the duties
of the President in his absence or disability and shall perform such other
duties as may be prescribed from time to time by the Board of Directors.
Section 9. Vice Presidents
The Vice Presidents shall have such powers and perform such duties as may be
assigned to them by the Board of Directors or the President. In the absence or
disability of the President and the Chief Operating Officer, the Vice President
designated by the Board or the President shall perform the duties and exercise
the powers of the President.
Section 10. Secretary
---------
The Secretary shall keep, or cause to be kept, a book of minutes at the
principal office or such other place as the Board of Directors may order, of all
meetings of directors and shareholders, with the time and place of holding,
whether regular or special, and if special, how authorized, the notice thereof
given, the names of those present at directors' meetings, the number of shares
present or represented at shareholders' meetings and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office or at the
office of the Corporation's transfer agent, a share register, or a duplicate
share register, showing the names of the shareholders and their addresses; the
number and classes of shares held by each; the number and date of certificates
issued for the same, and the number and date of cancellation of every
certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of the
shareholders and of the Board of Directors required by the Bylaws or Bylaw to be
given; he shall keep the seal of the Corporation and affix said seal to all
documents requiring a seal, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the Bylaws.
Section 11. Assistant Secretary
-------------------
The Assistant Secretary shall have the same rights, duties, powers and
privileges as the Secretary and may act in his place and stead whenever the same
shall be necessary or desirable.
Section 12. Treasurer
---------
Unless the Board of Directors determines otherwise, the Treasurer shall be the
Chief Financial Officer of the Corporation. The Treasurer shall have general
custody of all the funds and securities of the Company and have general
supervision of the collection and disbursement of funds of the Company. He shall
endorse on behalf of the Company for collection of checks, notes, and other
obligations, and shall deposit the same to the credit of the Company in such
bank or banks or depositories as the Board of Directors may designate. He may
sign, with the President, or such other person or persons as may be designated
for the purpose of the Board of Directors, all bills of exchange or promissory
notes of the Company. He shall enter or cause
<PAGE>
to be entered regularly in the books of the Company full and accurate account of
all moneys received and paid by him on account of the Company; shall at all
reasonable times exhibit his books and accounts to any Director of the Company
upon application at the office of the Company during business hours; and,
whenever required by the Board of Directors or the President, shall render a
statement of his accounts. He shall perform such other duties as may be
prescribed from time to time by the Board of Directors or by the Bylaws.
Section 13. Assistant Treasurer
-------------------
The Assistant Treasurer shall have all the same rights, duties, powers and
privileges as the Treasurer and may act in his place and stead whenever the same
shall be necessary or desirable.
Section 14. General Counsel
---------------
The General Counsel shall advise and represent the Company generally in all
legal matters and proceedings and shall act as counsel to the Board of Directors
and its Committees. The General Counsel may sign and execute pleadings, powers
of attorney pertaining to legal matters, and any other contracts and documents
in the regular course of his duties.
Section 15. Assistant General Counsel
-------------------------
The Assistant General Counsel shall have all the same rights, duties, powers and
privileges as the General Counsel and may act in his place and stead whenever
the same shall be necessary or desirable.
ARTICLE V. CORPORATE RECORDS AND REPORTS - INSPECTION
-----------------------------------------------------
Section 1. Records
-------
The Corporation shall maintain adequate and correct accounts, books and records
of its business and properties. All such books, records and accounts shall be
kept at its principal office designated by the Bylaws, as from time to time
amended by the Board of Directors.
Section 2. Inspection
----------
All books and records provided for by the laws of the jurisdictions in which
this Corporation maintains offices shall be open to inspection of the directors
and shareholders from time to time and in the manner provided by the laws of
said states, as made applicable to foreign corporations keeping records in said
states.
ARTICLE VI. CERTIFICATES AND TRANSFER OF SHARES
-----------------------------------------------
Section 1. Certificates for Shares
-----------------------
Certificates for shares shall be of such form and device as the Board of
Directors may designate and shall state: the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; the par value, if any, or a statement that such shares
are without par value; a statement of liens or restrictions upon
<PAGE>
transfer or voting, if any; if the shares be assessable, or if assessments are
collectible by personal action, a plain statement of such facts. Certificates
for preferred shares shall contain, or have appended thereto, a statement of
applicable rights, privileges, preferences and restrictions.
Every certificate for shares must be signed by the Chief Executive Officer, or
by the President or a Vice President, and by the Secretary or Assistant
Secretary, which signatures shall be affixed manually or by facsimile signatures
of such of the foregoing officers as are required to execute such certificates
in accordance with this paragraph. Before it becomes effective, each certificate
for shares authenticated by the facsimile signature shall be (i) countersigned
by a transfer agent or transfer clerk and registered by an incorporated bank or
trust company, either domestic or foreign, as a registrar of transfers, or (ii)
countersigned by a facsimile of the signature of a transfer agent or transfer
clerk and registered by written signature by an incorporated bank or trust
company, either domestic or foreign, as registrar of transfers.
Section 2. Transfer on the Books
---------------------
Upon surrender of the Secretary or Assistant Secretary or transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 3. Lost or Destroyed Certificates
------------------------------
No certificate for shares of stock of this Corporation shall be issued in place
of any certificate alleged to have been lost, destroyed or mutilated, except
upon such terms and conditions, including indemnification of the Corporation, as
the Board of Directors shall determine.
Section 4. Transfer Agents and Registrars
------------------------------
The Board of Directors may appoint one or more transfer agents or transfer
clerks, and one or more registrars, which shall be an incorporated bank or trust
company, either domestic or foreign, who shall be appointed at such times and
places as the requirements of the Corporation may necessitate and the Board of
Directors may designate.
Section 5. Closing Stock Transfer Books
----------------------------
The Board of Directors may close the transfer books at their discretion for a
period not exceeding thirty (30) days preceding any meeting, annual or special,
of the shareholders. Upon declaration of a dividend, the transfer books shall
not be closed but a record date will be set by the Board of Directors upon which
the transfer agent will take a record of all shareholders entitled to the
dividend without actually closing the books for transfer of stock.
ARTICLE VII. CORPORATE SEAL
---------------------------
The corporate seal shall be circular in form, and shall have inscribed thereon
the name of the Corporation, its year of incorporation and the word DELAWARE.
<PAGE>
ARTICLE VIII. AMENDMENTS
------------------------
Section 1. By Shareholders
---------------
The Bylaws may be repealed or amended or new Bylaws may be adopted at the annual
meeting or at a duly called special meeting of the shareholders, by a vote of
shareholders entitled to exercise 80% or more of the voting powers of the
Corporation.
Section 2. By Directors
------------
The power to repeal and amend the Bylaws and adopt new Bylaws is hereby granted
to the Board of Directors, subject to the power of the shareholders to adopt,
amend or repeal such Bylaws or to revoke this delegation of authority in the
manner provided in Section 1 of this Article VIII.
Section 3. Records of Amendments
---------------------
Whenever an Amendment or new Bylaws is adopted, it shall be copied in the book
of Bylaws with the original Bylaws, in the appropriate place. If any Bylaw is
repealed, the fact of repeal with the date of meeting at which the repeal was
enacted or written consent was filed shall be stated in said book.
September 17, 1998
