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Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934
Date of Report: December 8, 1998
(Date of earliest event reported)
Ceres Group, Inc.
(Formerly Central Reserve Life Corporation)
(Exact Name of Registrant as specified in its charter)
Delaware 0-8483
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(State or other jurisdiction of (Commission File Number)
Incorporation)
34-1017531
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(IRS Employer
Identification Number)
17800 Royalton Road, Strongsville, Ohio 44136
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(Address of Principal Executive Offices) (Zip Code)
(440) 572-2400
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(Registrant's telephone number, including area code)
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Item 5. Other Events
Effective December 8, 1998, Central Reserve Life Corporation
("CRLC") has changed its state of incorporation from Ohio to Delaware through
a merger of CRLC into Ceres Group, Inc., a Delaware corporation and
wholly-owned subsidiary of CRLC. As a result of the merger, the name of the
Registrant has been changed to "Ceres Group, Inc." Accordingly, the
11,495,172 common shares, without par value, of CRLC have been converted into
11,495,172 fully paid shares of common stock, par value 0.001 per share, of
Ceres Group, Inc. The merger was approved by the Shareholders of the
Registrant at a Special Meeting of the Shareholders in Lieu of the Annual
Meeting of Shareholders on December 7, 1998. Ceres Group, Inc. will trade on
the Nasdaq National Market under the symbol "CERG."
Item 7. Financial Statements and Exhibits
(c) Exhibits
2.1 Merger Agreement and Plan of Reorganization dated December
8, 1998 between Central Reserve Life Corporation and Ceres
Group, Inc.
3.1 Certificate of Incorporation of Ceres Group, Inc. as filed
with Secretary of State of Delaware on October 22, 1998.
3.2 Bylaws of Ceres Group, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: December 9, 1998 CERES GROUP, INC.
By: /s/ Charles E. Miller, Jr.
---------------------------------
Chief Financial Officer
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EXHIBITS
Exhibit No. Exhibit
2.1 Merger Agreement and Plan of Reorganization dated
December 8, 1998 between Central Reserve Life
Corporation and Ceres Group, Inc.
3.1 Certificate of Incorporation of Ceres Group, Inc. as
filed with Secretary of State of Delaware on October
22, 1998.
3.2 Bylaws of Ceres Group, Inc.
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EXHIBIT 2.1
MERGER AGREEMENT
AND
PLAN OF REORGANIZATION
THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made and
entered into as of this 8th day of December, 1998, by and between CENTRAL
RESERVE LIFE CORPORATION, an Ohio corporation ("CRL"), and CERES GROUP, INC., a
Delaware corporation ("Ceres") and wholly-owned subsidiary of CRL.
WHEREAS, the Board of Directors of CRL has determined that it would be in
the best interests of CRL and its stockholders to reincorporate CRL in the State
of Delaware; and
WHEREAS, Ceres was formed for the purpose of reincorporating CRL in the
State of Delaware by means of a parent-subsidiary merger qualifying as a
tax-free reorganization;
NOW, THEREFORE, the parties hereto agree as follows:
1. THE MERGER.
(a) MERGER AND REORGANIZATION. On the Effective Date (as defined
below), CRL will be merged with and into Ceres (the "Merger"), in accordance
with the terms of this Agreement, the provisions of Section 253 of the
Delaware General Corporation Law, as amended (the "DGCL"), and the
provisions of Section 1701.79 of the Ohio General Corporation Law, as
amended (the "OGCL"), in a transaction qualifying as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended. Subject to Section 1(b) below, the Merger will be completed by
filing a certificate of merger in the form attached hereto as EXHIBIT A with
the Secretary of State of Ohio and a certificate of ownership and merger in
the form attached hereto as EXHIBIT B with the Secretary of State of
Delaware.
(b) EFFECTIVE DATE. The effective date of the Merger will be
December 8, 1998 (the "Effective Date").
(c) SURVIVING CORPORATION. On the Effective Date, the separate
corporate existence of CRL will cease and Ceres will be the survivor (the
"Surviving Corporation"). The name of the Surviving Corporation will be
"Ceres Group, Inc."
(d) CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION. On the
Effective Date, the certificate of incorporation of Ceres, as currently in
effect, will become the articles of incorporation of the Surviving
Corporation.
(e) BYLAWS OF SURVIVING CORPORATION. On the Effective Date, the bylaws
of Ceres, as currently in effect, will become the bylaws of the Surviving
Corporation.
(f) DIRECTORS OF SURVIVING CORPORATION. On the Effective Date, the
directors of CRL will become the directors of the Surviving Corporation, and
the members of the Executive, Investment, Audit and Compensation Committees
of the Board of Directors of CRL will become the members of the same
Committees of the Board of Directors of the Surviving Corporation.
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(g) OFFICERS OF SURVIVING CORPORATION. On the Effective Date, the
officers of CRL will become the officers of the Surviving Corporation.
(h) PRINCIPAL OFFICE OF SURVIVING CORPORATION. On the Effective Date,
the principal office of the Surviving Corporation shall be located at 17800
Royalton Road, Strongsville, Ohio 44136-5197.
(i) QUALIFICATION AS FOREIGN CORPORATION AND CONSENT TO SERVICE OF
PROCESS. The Surviving Corporation desires to transact business in the
State of Ohio as a foreign corporation, and hereby appoints the following as
its statutory agent upon whom process, notice or demand against the entity
may be served in the State of Ohio: Linda S. Standish, Esq., 17800 Royalton
Road, Strongsville, Ohio 44136-5197. The Surviving Corporation irrevocably
consents to service of process on the statutory agent listed above as long
as the authority of the agent continues, and to service of process upon the
Secretary of State of the State of Ohio if the agent cannot be found, if the
Surviving Corporation fails to designate another agent when required to do
so or if the Surviving Corporation's license or registration to do business
in the State of Ohio expires or is canceled.
(j) ABANDONMENT OF MERGER. The Merger may be abandoned at any time
prior to the filing of this Agreement with the Secretary of State of Ohio
and the Secretary of State of Delaware, or the Effective Date, whichever
occurs later, at the direction of the Board of Directors of either CRL or
Ceres, notwithstanding prior approval of this Agreement and the Merger by
the stockholders of CRL or Ceres.
2. CONVERSION OF SHARES.
(a) CONVERSION OF COMMON SHARES OF CRL. On the Effective Date, the
Common Shares, without par value, of CRL ("Parent Common Shares"), issued
and outstanding at that time will, by virtue of the Merger and without any
action on the part of any holder thereof, be converted into an equal number
of fully paid Common Shares, par value $0.001 per share, of Ceres
("Subsidiary Common Shares"), and outstanding certificates representing
Parent Common Shares will thereafter represent Subsidiary Common Shares.
Upon surrender by each holder of certificates representing Parent Common
Shares, a certificate representing the same number of Subsidiary Common
Shares shall be issued to each such holder.
(b) CONVERSION OF NON-VOTING PREFERRED STOCK OF CRL. On the Effective
Date, the shares of Non-Voting Preferred Stock, without par value, of CRL
("Parent Preferred Shares"), issued and outstanding at that time (if any)
will, by virtue of the Merger and without any action on the part of any
holder thereof, be converted into an equal number of fully paid shares of
Non-Voting Preferred Stock, par value $0.001 per share, of Ceres
("Subsidiary Preferred Shares"), and any outstanding certificates
representing Parent Preferred Shares will thereafter represent Subsidiary
Preferred Shares. Upon surrender by each holder of certificates representing
Parent Preferred Shares, a certificate representing the same number of
Subsidiary Preferred Shares shall be issued to each such holder.
(c) CANCELLATION OF SUBSIDIARY COMMON SHARES HELD BY CRL. On the
Effective Date, the 100 Subsidiary Common Shares held by CRL (which
represent all of the issued and outstanding shares of capital stock of Ceres
immediately prior to the Merger) will, by virtue of the Merger, cease to
exist and the certificate representing such shares will be canceled.
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3. MISCELLANEOUS.
(a) AMENDMENT. This Agreement may be amended in accordance with the
provisions of Section 251(d) of the Delaware General Corporation Law and
Section 1701.79(E) of the OGCL at any time prior to the filing hereof with
the Secretary of State of the State of Delaware or the State of Ohio or the
Effective Date, whichever occurs later, by means of a written instrument
signed by all parties hereto.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
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<S> <C> <C>
CENTRAL RESERVE LIFE CORPORATION,
an Ohio corporation
By: /s/ Linda S. Standish
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Linda S. Standish,
SECRETARY
</TABLE>
<TABLE>
<S> <C> <C>
CERES GROUP, INC.,
a Delaware corporation
By: /s/ Linda S. Standish
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Linda S. Standish,
SECRETARY
</TABLE>
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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CERES GROUP, INC.
ARTICLE I
NAME
The name of the corporation is Ceres Group, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE IN DELAWARE
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at that address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The Corporation is formed for the purpose of engaging in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as it presently exists or may be amended in the
future (the "Delaware General Corporation Law").
The Corporation reserves the right at any time and from time to time to
change its purposes in any manner which is permitted by statute or which has
been authorized or approved by this Certificate of Incorporation, if applicable.
A properly approved or authorized change of purpose will be binding and
conclusive upon every stockholder of the Corporation, including stockholders who
voted against the change. No stockholder will be entitled to payment of the fair
cash value of his shares due to a change in purpose of the Corporation.
Each purpose identified in this Article is independent of all other
purposes, and will not be limited or restricted by any other clause or paragraph
of this Certificate of Incorporation.
ARTICLE IV
CAPITAL STRUCTURE
4.1 AUTHORIZED CAPITAL STOCK. The aggregate number of shares of all
classes of stock that the Corporation is authorized to issue is 32,000,000
shares, consisting of:
(a) 2,000,000 Non-Voting Preferred Shares, par value $0.001 per share
(the "Non-Voting Preferred Shares"); and
(b) 30,000,000 Common Shares, par value $0.001 per share (the "Common
Shares").
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4.2 NON-VOTING PREFERRED SHARES.
(a) DESIGNATIONS BY BOARD OF DIRECTORS. The Non-Voting Preferred
Shares may be issued from time to time in one or more classes or series
without voting rights, and with such designations, preferences and relative,
participating, optional or special rights and qualifications, limitations or
restrictions as are stated herein and as shall be stated and expressed in
the resolution or resolutions providing for the issue of such stock adopted
by the Board of Directors as hereinafter prescribed.
(b) VOTING RIGHTS. Except as may otherwise be required by the Delaware
General Corporation Law, the holders of Non-Voting Preferred Shares shall
not be entitled to vote on any matters to be voted on by the stockholders of
the Corporation.
(c) TERMS OF THE NON-VOTING PREFERRED SHARES. Authority is hereby
expressly granted to and vested in the Board of Directors or any designated
committee thereof to authorize the issuance of the Non-Voting Preferred
Shares from time to time in one or more classes or series, to determine and
take necessary proceedings to fully effectuate the issuance and redemption
of any such Non-Voting Preferred Shares and, with respect to each class or
series of Non-Voting Preferred Shares, to fix and state from time to time,
by resolution or resolutions providing for the issuance thereof, the
following:
(i) the number of shares to constitute the class or series and the
designations thereof;
(ii) the preferences and relative, participating, optional or
special rights, if any, and qualifications, limitations or restrictions
thereof, if any, of the class or series;
(iii) whether the shares of the class or series will be redeemable
and, if redeemable, the redemption price or prices and the time or times
at which, and the terms and conditions upon which, such shares will be
redeemable and the manner of redemption;
(iv) whether the shares of the class or series will be subject to
the operation of retirement or sinking funds to be applied to the
purchase or redemption of such shares for retirement and, if such
retirement or sinking funds are to be established, the annual amount
thereof and the terms and conditions relative to the operation thereof;
(v) the dividend rate, whether dividends are payable in cash, stock
or otherwise, the conditions upon which and the times when such dividends
are payable, the preference or relation to the payment of dividends on
any other class or series of stock, whether or not such dividends will be
cumulative or noncumulative and, if cumulative, the date or dates from
which such dividends will accumulate;
(vi) the preferences, if any, and the amounts thereof that the
holders of the class or series will be entitled to receive upon the
voluntary or involuntary dissolution, liquidation or winding up of, or
upon any distribution of the assets of, the Corporation;
(vii) whether the shares of the class or series will be convertible
into, or exchangeable for, the shares of any other class or classes, or
of any other series of the same or any other class or classes, of stock
of the Corporation and the conversion price or prices, or ratio or
ratios, or rate or rates, at which such conversion or exchange may be
made, with such adjustments, if any, as shall be expressed or provided
for in such resolution or resolutions; and
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(viii) such other special rights and protective provisions with
respect to the class or series as the Board of Directors or any
designated committee thereof may deem advisable.
The shares of each class or series of Non-Voting Preferred Shares may vary
from the shares of any other class or series thereof in any or all of the
foregoing respects. The Board of Directors or any designated committee thereof
may from time to time increase the number of shares of Non-Voting Preferred
Shares designated for any existing class or series by a resolution adding to
such class or series authorized but unissued shares of Non-Voting Preferred
Shares not designated for any other class or series thereof. The Board of
Directors or any designated committee thereof may from time to time decrease the
number of shares of Non-Voting Preferred Shares designated for any existing
class or series by a resolution subtracting from such class or series any
unissued shares of Non-Voting Preferred Shares designated for such class or
series, and the shares so subtracted shall become authorized, unissued and
undesignated shares of Non-Voting Preferred Shares.
4.3 COMMON SHARES.
(a) POWERS, PREFERENCES AND RIGHTS. Except as may otherwise be
provided by the Delaware General Corporation Law, the powers, preferences
and rights of the Common Shares, and the qualifications, limitations or
restrictions thereof, shall be in all respects identical.
(b) VOTING RIGHTS. Except as may otherwise be provided by the Delaware
General Corporation Law, (i) all rights to vote and all voting power shall
be vested exclusively in the holders of the Common Shares and (ii) each
holder of Common Shares shall be entitled to one vote for each share held of
record on the applicable record date on all matters presented for a vote of
the stockholders of the Corporation, including, without limitation, the
election of directors.
(c) DIVIDENDS. Except as may otherwise be provided by the Delaware
General Corporation Law, if, as and when dividends on the Common Shares are
declared payable from time to time by the Board of Directors as provided in
this Section 4.3(c), whether payable in cash, property, stock or other
securities, the holders of Common Shares shall be entitled to share equally,
on a per share basis, in such dividends.
(d) LIQUIDATING DISTRIBUTIONS. Upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, or upon any
sale or conveyance of all or substantially all of the assets of the
Corporation, after payment or provision for payment of all the liabilities
of the Corporation and the expenses of liquidation, and after the holders of
the Non-Voting Preferred Stock shall have been paid in full the amounts, if
any, to which they are entitled or a sum sufficient for such payment in full
shall have been set aside, the remaining assets of the Corporation available
for distribution shall be distributed ratably to the holders of the Common
Shares. For the purpose of this Section 4.3(d), a merger, consolidation,
sale or conveyance shall not be deemed to be a liquidation or winding up of
the Corporation unless the transaction provides for the cessation of the
business of the Corporation.
ARTICLE V
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the power conferred upon the Board
of Directors by the Delaware General Corporation Law, the Board of Directors
shall have the power to make, adopt, alter,
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amend and repeal from time to time the Bylaws of the Corporation, as may be
amended from time to time (the "Bylaws"), without any action on the part of the
stockholders except as otherwise specifically provided in the Bylaws.
ARTICLE VI
ELIMINATION OF BALLOT FOR THE ELECTION OF DIRECTORS
The directors of the Corporation need not be elected by written ballot,
unless the Bylaws otherwise provide.
ARTICLE VII
INDEMNIFICATION RIGHTS AND LIMITATION OF DIRECTOR LIABILITY
7.1 INDEMNIFICATION RIGHTS.
(a) To the maximum extent permitted under the Delaware General
Corporation Law, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that such person is or was a
director, officer or employee of the Corporation, or is or was serving at
the request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding.
(b) To the maximum extent permitted under the Delaware General
Corporation Law, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer or employee of the Corporation, or is or was serving at
the request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or
suit.
7.2 ADVANCEMENT OF EXPENSES.
(a) To the maximum extent permitted under the Delaware General
Corporation Law, the Corporation shall pay all expenses (including
attorneys' fees) actually and reasonably incurred by any person by reason of
the fact that such person is or was a director of the Corporation in
defending any civil, criminal, administrative or investigative action, suit
or proceeding in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it is ultimately determined that he is not entitled to
be indemnified by the Corporation as authorized by the Delaware General
Corporation Law.
(b) To the maximum extent permitted under the Delaware General
Corporation Law, the Corporation shall pay all expenses (including
attorneys' fees) actually and reasonably incurred by any person by reason of
the fact that such person is or was an officer of the Corporation in
defending any civil, criminal, administrative or investigative action, suit
or proceeding (other than an action by the
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Corporation on its own behalf, it being understood that such an action does
not include any derivative suit instituted by a stockholder of the
Corporation) in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it is ultimately determined that he is not entitled to
be indemnified by the Corporation as authorized by the Delaware General
Corporation Law.
7.3 LIMITATION ON LIABILITY OF DIRECTORS. To the maximum extent permitted
under the Delaware General Corporation Law, a director of the Corporation shall
not be liable to the Corporation or its stockholders for monetary damages for
the breach of his or her fiduciary duty as a director.
7.4 NONEXCLUSIVITY AND BENEFIT. The indemnification rights granted
pursuant to this Article VI shall not be exclusive of other indemnification
rights, if any, granted to such person and shall inure to the benefit of the
heirs and legal representatives of such person.
7.5 EFFECT OF REPEAL, AMENDMENT OR TERMINATION. To the maximum extent
permitted under the Delaware General Corporation Law, no repeal of or
restrictive amendment of this Article VII and no repeal, restrictive amendment
or termination of effectiveness of any law authorizing this Article VII shall
apply to or affect adversely any right or protection of any director, officer or
employee of the Corporation, for or with respect to any acts or omissions of
such person occurring prior to such repeal, amendment or termination of
effectiveness.
ARTICLE VIII
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation expressly elects not to be governed by Section 203 of the
Delaware General Corporation Law.
ARTICLE IX
COMPROMISES AND ARRANGEMENTS
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three-
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
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ARTICLE X
INCORPORATOR
The name and mailing address of the sole incorporator of the Corporation is
1600 CNB Corp., 1375 East Ninth Street, 20th Floor, Cleveland, Ohio 44114.
IN WITNESS WHEREOF, the undersigned incorporator of the Corporation has
executed and subscribed this Certificate of Incorporation as of this 22nd day of
October, 1998.
1600 CNB CORP., Incorporator
By: /s/ MARC C. KRANTZ
--------------------------------------
Name: Marc C. Krantz
Title: ASSISTANT SECRETARY
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EXHIBIT 3.2
BYLAWS
OF
CERES GROUP, INC.
ARTICLE I
STOCKHOLDERS
Section 1.1. ANNUAL MEETING. An annual meeting of stockholders will be
held for the election of directors at such date, time and place, either within
or without the State of Delaware, as may be designated by resolution of the
Board of Directors of the Corporation (the "Board"). Any other proper business
may be transacted at the annual meeting.
Section 1.2. SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board, if
any, the President of the Corporation, the a majority of the members of the
Board, or the holders of a majority of the issued and outstanding Common Shares
of the Corporation. The business transacted at any special meeting shall be
limited to the purposes stated in the notice of such meeting.
Section 1.3. NOTICE OF MEETINGS. Written notice of every meeting of
stockholders will be given, not less than ten nor more than sixty days before
the date of the meeting by or at the direction of the Chairman of the Board, if
any, the President, the Secretary or such other person as the Board may appoint,
to each stockholder entitled to vote at such meeting. The notice will include
the place, date and hour of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called. If mailed, notice will
be deemed to be given when deposited in the mail, postage prepaid, directed to
the stockholder at such stockholder's address as it appears on the records of
the Corporation.
Section 1.4. WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS. Any written
waiver of notice signed by a stockholder entitled to notice will be deemed
equivalent to notice. Attendance of a stockholder at a meeting constitutes 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 on the basis that the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, need be specified in any written
waiver of notice.
Section 1.5. ADJOURNMENTS. Any meeting of stockholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such reconvened meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
reconvened meeting the Corporation may transact any business which could have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
reconvened meeting, a notice of the reconvened meeting will be given to each
stockholder of record entitled to vote at the meeting.
Section 1.6. QUORUM. Except as otherwise provided by the Delaware General
Corporation Law, as in effect from time to time (the "Delaware General
Corporation Law"), the Certificate of Incorporation of the Corporation, as in
effect from time to time (the "Certificate of Incorporation") or these Bylaws,
at each meeting of stockholders the presence in person or by proxy of the
holders of shares of stock having a
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majority of the votes that could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting will be necessary and sufficient
to constitute a quorum. 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, will neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing does 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.
In the absence of a quorum, the stockholders so present may, by majority
vote, adjourn the meeting from time to time in the manner provided in Section
1.5 of these Bylaws until a quorum attends.
Section 1.7. ORGANIZATION OF MEETINGS. Meetings of stockholders will be
presided over by the Chairman of the Board, if any, or in his or her absence by
the President, or in the absence of the foregoing persons by a chairman chosen
by the stockholders at the meeting. The Secretary will act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 1.8. ACTION BY VOTE. Except as otherwise provided by the Delaware
General Corporation Law or the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders will be entitled to one vote for
each share of stock held by such stockholder that has voting power upon the
matter in question.
At all meetings of stockholders for the election of directors, a plurality
of the votes cast will be sufficient to elect. All other elections, proposals
and questions will, unless otherwise provided by the Delaware General
Corporation Law, be decided by the vote of the holders of shares of stock having
a majority of the votes which could be cast by the holders of all shares of
stock entitled to vote thereon which are present in person or represented by
proxy at the meeting.
Voting at meetings of stockholders need not be by written ballot.
Section 1.9. REPRESENTATION BY PROXY. Each stockholder entitled to vote at
a meeting of stockholders may authorize another person or persons to act for
such stockholder by proxy. A duly executed proxy will be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or another duly
executed proxy bearing a later date with the Secretary of the Corporation prior
to the taking of a vote.
Section 1.10. INSPECTORS OF ELECTION. The Board in advance of any meeting
of stockholders shall appoint one or more Inspectors of Election to act at the
meeting or any adjournment of the meeting. Each Inspector of Election, before
entering upon the discharge of his or her duties, must take and sign an oath
faithfully to execute the duties of Inspector of Election at such meeting with
strict impartiality and according to the best of his or her ability. Inspectors
of Election will take charge of the polls and, when the vote is completed, will
make a certificate of the result of the vote taken and of such other facts as
may be required by the Delaware General Corporation Law. The Inspectors of
Election may appoint or retain other persons or entities to assist them in the
performance of their duties as inspectors.
Section 1.11. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. 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 to
express consent to corporate action in writing without a meeting, or entitled to
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receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
may fix a record date, which record date will not precede the date upon which
the resolution fixing the record date is adopted by the Board and which record
date:
(a) in the case of determination of stockholders entitled to notice of or to
vote at any meeting of stockholders or adjournment thereof, will, unless
otherwise required by applicable law, not be more than sixty nor less
than ten days before the date of such meeting;
(b) in the case of determination of stockholders entitled to express consent
to corporate action in writing without a meeting, will not be more than
ten days from the date upon which the resolution fixing the record date
is adopted by the Board; and
(c) in the case of any other action, will not be more than sixty days prior
to such other action.
If no record date is fixed:
(a) the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders will be at the close of business on the
day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on
which the meeting is held;
(b) the record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting when no prior action of
the Board is required by applicable law, will be the first date on which
a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation in accordance with applicable law,
or, if prior action by the Board is required by applicable law, will be
at the close of business on the day on which the Board adopts the
resolution taking such prior action; and
(c) the record date for determining stockholders for any other purpose will
be at the close of business on the day on which the Board adopts the
resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders will apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the reconvened
meeting.
Section 1.12. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer or agent
responsible for maintaining the stock ledger of the Corporation shall prepare,
at least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list will 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 same city in which the meeting is to be held, which place
will be specified in the notice of the meeting, or, if a different location is
not specified, at the place where the meeting is to be held. The list will 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. Upon the willful
neglect or refusal of the directors to produce such a list at any meeting for
the election of directors, they will be ineligible for election to any office at
such meeting. The stock ledger will be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders or
the books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
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Section 1.13. ACTION BY WRITTEN CONSENT OF STOCKHOLDERS. Unless otherwise
provided in the Certificate of Incorporation, any action required or permitted
to be taken at any meeting of the stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, is 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 will be given to those
stockholders who have not consented in writing.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. POWERS. Subject to applicable provisions of the Delaware
General Corporation Law and any limitations in the Certificate of Incorporation
or these Bylaws, the Board will manage the business and affairs of the
Corporation and exercise all corporate powers.
Section 2.2. NUMBER. The Board will consist of no less than six and no
more than fifteen members, or such other number of directors as may be
determined from time to time by resolution of the directors of the Corporation.
Section 2.3. ELECTION; RESIGNATION; REMOVAL; VACANCIES. At the first
annual meeting of stockholders and at each subsequent annual meeting, the
stockholders will elect directors each of whom will hold office for a term of
one year or until his or her successor is elected and qualified. Any director
may resign at any time upon written notice to the Corporation. Any director or
the entire Board may be removed with or without cause by the vote of the holders
of a majority of the shares of stock then entitled to vote in the election of
directors. Any newly created directorship or any vacancy occurring in the Board
for any cause may be filled by a majority of the remaining members of the Board,
although such majority is less than a quorum, or by a plurality of the votes
cast at a meeting of stockholders, and each director so elected will hold office
until the expiration of the term of office of the director whom he or she has
replaced or until his or her successor is elected and qualified.
Section 2.4. REGULAR MEETINGS. Regular meetings of the Board may be held
at such places within or without the State of Delaware and at such times as the
Board may determine. Notice of a regular meeting need not be given.
Section 2.5. SPECIAL MEETINGS. Special meetings of the Board may be held
at any time or place within or without the State of Delaware whenever called by
[any officer of the Corporation] [the Chairman of the Board, if any, the
President] or by any [member] [two members] of the Board. Notice of a special
meeting of the Board will be given by the person or persons calling the meeting
at least twenty-four hours before the special meeting.
Section 2.6. WAIVER OF NOTICE OF MEETINGS OF DIRECTORS. Any written waiver
of notice, signed by a director entitled to notice, will be deemed equivalent to
notice. Attendance of a director at a meeting will 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. Neither the
business to be transacted at, nor the purpose of any regular or special meeting
of the directors, need be specified in any written waiver of notice.
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Section 2.7. QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of the
Board a majority of the whole Board will constitute a quorum for the transaction
of business. In the absence of a quorum, the directors present at the meeting
may, by majority vote, adjourn the meeting until a majority attends. Except in
cases in which the Certificate of Incorporation or these Bylaws otherwise
provide, the vote of a majority of the directors present at a meeting at which a
quorum is present will be the act of the Board.
Section 2.8. INTERESTED DIRECTORS; QUORUM. No contract or transaction
between the Corporation and one or more of the Corporation's directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of the Corporation's
directors or officers are directors or officers, or have a financial interest,
will be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee thereof which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose, if:
(a) the material facts as to his or her relationship or interest and as to
the contract or transaction are disclosed or are known to the Board or
the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors are less
than a quorum; or
(b) the material facts as to his or her relationship or interest and as to
the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(c) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board, a committee
thereof, or the stockholders.
Interested directors may be counted in determining the presence of a quorum
at a meeting of the Board or of a committee which authorizes the contract or
transaction.
Section 2.9. ORGANIZATION OF MEETINGS. Meetings of the Board will be
presided over by the Chairman of the Board, if any, or in his or her absence by
the President, or in their absence by a chairman chosen by the directors at the
meeting. The Secretary will act as secretary of the meeting, but in his or her
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 2.10. TELEPHONIC MEETINGS PERMITTED. Members of the Board, or any
committee designated by the Board, may participate in a meeting by means of
telephonic conference or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section will constitute presence in person at such
meeting.
Section 2.11. ACTION BY WRITTEN CONSENT OF DIRECTORS. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board, or of any
committee thereof, may be taken without a meeting if all members of the Board or
such committee, as the case may be, consent in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or such
committee.
Section 2.12. COMPENSATION. In the discretion of the Board, the
Corporation may pay each director such fees for his or her services as director
and reimburse such director for his or her reasonable expenses incurred in the
performance of his or her duties as director, as determined by the Board.
Nothing contained in this Section may be construed to preclude any director from
serving the Corporation in any other capacity and receiving reasonable
compensation for such service. Members of any special or standing committees may
be allowed like compensation for attending committee meetings.
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Section 2.13. COMMITTEES. The Board may, by resolution, 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 or disqualification of a member of
the committee, the member or members of the committee present at any meeting and
not disqualified from voting, whether or not he, she or they constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by the Delaware General Corporation Law and to the
extent provided in the resolution of the Board, will have and may exercise all
the powers and authority of the Board in the management of the business and
affairs of the Corporation.
Section 2.14. COMMITTEE RULES. Unless the Board otherwise provides, each
committee designated by the Board may make, alter and repeal rules for the
conduct of its business. In the absence of such rules each committee will
conduct its business in the same manner as the Board conducts its business
pursuant to Article II of these Bylaws.
ARTICLE III
OFFICERS
Section 3.1. ENUMERATION; ELECTION. The Board will appoint a President,
Secretary and Treasurer, and it may, if it so determines, elect a Chairman of
the Board from among its members. The Board may also appoint, or empower the
President to appoint, such other officers and agents as the business of the
Corporation may require. Any number of offices may be held by the same person.
The Board may require any officer, agent or employee to give security for the
faithful performance of his or her duties.
Section 3.2. TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. Each officer
will hold office until his or her successor is appointed and qualified or until
his or her earlier resignation or removal. Any officer may resign at any time
upon written notice to the Corporation. The Board may remove any officer with or
without cause at any time, but such removal will be without prejudice to the
contractual rights of such officer, if any, with the Corporation. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the term by the Board.
Section 3.3. POWERS AND DUTIES. The officers of the Corporation will have
such powers and duties in the management of the Corporation as may be prescribed
in these Bylaws and by the Board and, to the extent not so provided, as
generally pertain to their respective offices, subject to the control of the
Board.
Section 3.4. COMPENSATION. The Board will determine the officers'
salaries, and no officer will be prevented from receiving such compensation by
reason of the fact that he or she is also a director of the Corporation.
ARTICLE IV
STOCK
Section 4.1. CERTIFICATES. Every holder of stock will be entitled to have
a certificate signed by or in the name of the Corporation by two officers of the
Corporation, certifying the number of shares owned by such holder in the
Corporation. Any or all of the signatures on the certificate may be by
facsimile. If any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate has ceased to be such
officer, transfer agent or registrar before such certificate is issued, then
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the certificate may be issued by the Corporation with the same effect as if he
or she were such officer, transfer agent or registrar at the date of issue.
Section 4.2. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW
CERTIFICATES. Upon written request by a stockholder, the Corporation may issue
a new certificate of stock in the place of any certificate previously issued by
the Corporation, alleged to have been lost, stolen or destroyed. The Corporation
may require the owner of the lost, stolen or destroyed certificate, or his or
her legal representative, to give the Corporation a bond sufficient to indemnify
it 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.
Section 4.3. TRANSFER ON BOOKS. Subject to the restrictions, if any,
stated or noted on the stock certificate, shares of stock may be transferred on
the books of the Corporation by the surrender to the Corporation or its transfer
agent of the stock certificate properly endorsed or accompanied by a written
assignment and power of attorney properly executed, and with such proof of the
authenticity of signature as the Board or the transfer agent of the Corporation
may reasonably require.
Section 4.4. REGISTERED STOCKHOLDERS. Except as may be otherwise required
by the Delaware General Corporation Law, by the Certificate of Incorporation or
by these Bylaws, the Corporation will be entitled to treat the record holder of
stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to receive notice and to vote
or to give any consent with respect to such stock and to be held liable for such
calls and assessments, if any, as may lawfully be made on such stock, regardless
of any transfer, pledge or other disposition of such stock until the shares have
been properly transferred on the books of the Corporation.
It will be the duty of each stockholder to notify the Corporation of such
stockholder's current post office address.
ARTICLE V
MISCELLANEOUS
Section 5.1. CERTIFICATE OF INCORPORATION. These Bylaws are subject to the
Certificate of Incorporation, and in the case of a conflict, the Certificate of
Incorporation controls.
Section 5.2 AMENDMENT OF BYLAWS. These Bylaws may be amended or repealed,
and new Bylaws made, by the Board or by the stockholders at a meeting duly
called for such purpose.
Section 5.3. LOCATION OF RECORDS. The books and records of the Corporation
may be kept outside of the State of Delaware at such location or locations as
may be designated from time to time by the Board.
Section 5.4. FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year, unless otherwise fixed by resolution of the Board.
Section 5.5. CORPORATE SEAL. The Corporation shall not have a corporate
seal.
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