SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
________________________
DIAGNOSTIC / RETRIEVAL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2632319
(State of incorporation (I.R.S. employer
or organization) identification no.)
5 SYLVAN WAY
PARSIPPANY, NEW JERSEY
(Address of principal executive offices)
07054
(zip code)
________________________
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH EACH CLASS IS
TO BE REGISTERED TO BE REGISTERED
COMMON STOCK, AMERICAN STOCK EXCHANGE
PAR VALUE $.01 PER SHARE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
NONE
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
At a Special Meeting of Stockholders (the "Meeting") of
Diagnostic/Retrieval Systems, Inc., a Delaware corporation (the
"Company") held on March 26, 1996, the Stockholders approved an
Amended and Restated Certificate of Incorporation (the "Restated
Certificate"), the full text of which, as amended, is
incorporated herein by reference as Exhibit 2. The approval of
the Restated Certificate effected a reclassification of each
share of the Company's Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), and each share of the
Company's Class B Common Stock, par value $.01 per share (the
"Class B Common Stock"), into one share of common stock, par
value $.01 per share (the "Common Stock"), of the Company (the
"Reclassification") and adopted provisions (a) to provide that
action by stockholders may be taken only at a duly called annual
or special meeting, and not by written consent (the "Consent
Provision") and (b) to provide that the stockholders of the
Company would have the right to make, adopt, alter, amend, change
or repeal the By-Laws only upon the affirmative vote of not less
than 66 2/3% of the outstanding capital stock of the Company
entitled to vote thereon (the "By-Law Amendment Provision").
This registration statement relates to the registration with
the Securities and Exchange Commission of shares of the Common
Stock. The Company is authorized to issue 22,000,000 shares,
consisting of 2,000,000 shares of Preferred Stock, $10.00 par
value (the "Preferred Stock") and 20,000,000 shares of Common
Stock. The following is a summary description of the rights,
preferences and privileges of the Common Stock and is qualified
in its entirety by reference to the Restated Certificate and the
Amended and Restated By-Laws (the "By-Laws") attached hereto as
Exhibit 3.
No holder of shares of stock of the Company of any class now
or hereafter authorized shall be entitled as of right to purchase
or subscribe for any part of any unissued shares of stock of the
Company of any class now or hereafter authorized or any
additional shares of stock to be issued by reason of any increase
of the authorized capital stock of the Company of any class, or
any bonds, certificates of indebtedness, debentures or other
securities convertible into stock of the Company of any class now
or hereafter authorized, but any such unissued stock or such
additional authorized issue of new stock, or such securities
convertible into stock, may be issued and disposed of, pursuant
to resolutions of the Board of Directors, to such persons, firms,
corporations or associations, and upon such terms, as may be
deemed advisable by the Board of Directors in the exercise of its
discretion.
COMMON STOCK
The holders of the Common Stock are entitled to receive
dividends when, as and if declared by the Company's Board of
Directors and share ratably in the assets of the Company
available for distribution to stockholders in the event of the
Company's liquidation, dissolution or winding up.
The shares of Common Stock are fully paid and non-
assessable. Holders of Common Stock will have no preemptive
rights to purchase or subscribe for securities of the Company and
the Common Stock is not subject to redemption by the Company or
convertible. All holders of the Common Stock will have the same
preferences, rights, powers and qualifications, including one
vote for each share of Common Stock held by a stockholder. There
is no cumulative voting.
RESTATED CERTIFICATE AND BY-LAWS AND CERTAIN ANTI-TAKEOVER
EFFECTS
The Company's Restated Certificate and By-Laws currently
contain certain provisions which may have the effect of delaying,
deferring or making move expensive or difficult a change in
control. Such provisions include (a) the staggered Board, (b)
the existence of authorized but unissued Preferred Stock, (c) the
supermajority vote requirement with respect to the amendment of
the By-Laws, (d) the requirement that stockholder action may be
taken only at a duly called annual or special meeting, (e) that
special meetings may be called only by the Board and (f) the
advance notice provisions in the By-Laws.
Staggered Board. The Board is divided into classes with
each class of directors consisting of as nearly an equal number
of directors as possible. At each annual meeting beginning with
the 1996 Annual Meeting, one class of directors will be elected
to succeed those whose terms expire by all holders of the Common
Stock, with each newly elected director to serve a three-year
term.
The staggered Board may discourage minority stockholders
from attempting to elect the Company's entire board of directors
through a proxy contest or otherwise, even though they do not own
a majority of the Company's outstanding shares entitled to vote.
The staggered Board could delay a purchaser's ability to obtain
control of the Board in a relatively short period of time because
it will generally take a purchaser two annual meetings of
stockholders to elect a majority of the Board. A purchaser's
ability to obtain control of the Board will be further deterred
because, pursuant to Section 141(k) of the DGCL, the insurgent
would need to show cause in order to remove any director and
because only the Board of Directors is authorized to fill
vacancies or newly created directorships. Also, since neither
the DGCL nor the Restated Certificate or the By-Laws require
cumulative voting, a purchaser of a block of stock of the Company
constituting less than a majority of the outstanding shares has
no assurance of representation on the Board.
Preferred Stock. The Restated Certificate authorizes
2,000,000 shares of Preferred Stock of which no shares are
outstanding. Subject to applicable law, the Board may issue, in
its sole discretion, shares of Preferred Stock without further
stockholder action. The Preferred Stock may be issued in one or
more series and may have such powers, including voting powers,
and such designations, preferences and relative rights,
qualifications and limitations as the Board may fix by resolution
at the time of issuance. It may be possible for the Board to
use its authority to issue Preferred Stock in a way which could
deter or impede the completion of a tender offer or other
attempts to gain control of the Company of which the Board does
not approve.
The By-Law Amendment Provision. The By-Law Amendment
Provision is intended to discourage and, in certain instances, to
prevent stockholders controlling less than 66 % of the total
voting power of all outstanding voting securities of the Company
from making changes in the By-Laws which may (i) interfere with
or frustrate the power of the then incumbent Board to manage the
business and affairs of the Company, or (ii) increase the number
of directors or reduce the authority of the Board thereby
undercutting the effect of the provisions for a classified Board
of Directors and the other provisions described herein. However,
the By-Law Amendment Provision would enable the holders of more
than 33 % of the total voting power of all outstanding voting
securities of the Company to prevent an amendment to the By-Laws
even if such change were desired by the holders of a majority of
the outstanding voting securities of the Company.
The Consent Provision. The Consent Provision limits the
ability of any stockholder to take action immediately and without
prior notice to the Board. The Consent Provision allows
stockholders to act only at an annual or special meeting. By
prohibiting stockholders from acting without a meeting, the
Consent Provision ensures that all stockholders will have the
opportunity to consider any matter that could affect their
rights. The Consent Provision is intended to provide the Board
and the non-consenting stockholders with an opportunity to review
any proposed action and, if necessary, to take any necessary
action to protect the interest of minority stockholders and the
Company before the proposed action is taken. As a result, the
Board may take actions that certain stockholders believe are not
in their best interests. Additionally, in conjunction with the
Special Meeting Provision, a majority of the incumbent Board
could delay until the annual meeting any action that requires
stockholder approval, even if the proponents of the action have
sufficient stockholder votes to obtain approval of the action at
a stockholder meeting.
The Board, however, believes that action by written consent
of the stockholders is inappropriate for a public company and
that it is in the best interest of the stockholders and the
Company to require full consideration of a matter at a meeting of
stockholders before acting on it.
Stockholder Meeting Provision. Under the DGCL, special
meetings of stockholders of a corporation may be called by a
corporation's board of directors or by such persons as may be
authorized by a corporation's certificate of incorporation or by-
laws. The By-Laws currently provide that a special meeting of
stockholders may be called only by the Board (the "Stockholder
Meeting Provision"). The Stockholder Meeting Provision is
intended to make it more difficult for stockholders to take
actions which require a meeting of stockholders unless the Board
or a majority of the Board calls such a meeting. The Board
believes that it is in the best position to determine those
issues which are properly the subject of a special meeting of
stockholders. In making such a determination, the Board must
consider that conducting stockholder meetings is extremely costly
and time-consuming and distracts management from the day-to-day
operation of the business. The Board believes that it is in the
best position to consider these factors and make the appropriate
determination. Although the Stockholder Meeting Provision has
the effect of precluding the call of a special meeting for
stockholder consideration of a proposal to which the Board is
opposed, the Board believes that stockholders are provided a full
opportunity to make proper proposals at duly convened stockholder
meetings and to request that any such proposal be presented for
consideration to other stockholders in the Company's annual proxy
statement.
Advance Notice Provisions. The By-Laws provide that
stockholders be required to give advance notice to the Company of
(i) any stockholder-proposed director nomination or (ii) any
business to be introduced by a stockholder at any annual meeting
(the "Advance Notice Provisions"). The Advance Notice Provisions
provide that any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election
as director or directors at an annual meeting only if written
notice of such stockholder's intent has been given to the
Secretary of the Company not less than 60 days nor more than 90
days prior to the anniversary date of the immediately preceding
annual meeting. In the event the annual meeting is called for a
date that is not within 30 days before or after such anniversary
date, the stockholder's written notice of such intent must be
given within 10 days before or after such anniversary date. In
the case of a special meeting of stockholders called for the
purpose of electing directors, to be timely, a stockholder's
notice must be delivered to or mailed and received not later than
the close of business on the tenth day following the day on which
notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made by the
Company, whichever first occurs. The Chairman of the meeting may
determine that the nomination of any person was not made in
compliance with the Advance Notice Provisions.
The Advance Notice Provisions further provide that, for
business to be properly introduced by a stockholder of the
Company where such business is not specified in the notice of
meeting or brought by or at the direction of the Board, the
stockholder must have given not less than 60 nor more than 90
days prior to the anniversary date of the immediately preceding
annual meeting of the stockholders. In the event the annual
meeting is called for a date that is not within 30 days before or
after such anniversary date, notice by the stockholder must be
given 10 days before or after such anniversary date. The
Chairman of the Board may, if the facts warrant, determine and
declare that any business was not properly brought before such
meeting and such business will not be transacted.
The Advance Notice Provisions are designed to provide the
Company with advance warning of a threatened proxy contest and
time to evaluate and react to any such contest. Although the
Advance Notice Provisions do not give the Board or the Chairman
of the meeting any powers to approve or disapprove such
stockholder nominees or other matters, the Advance Notice
Provisions may have the effect of (i) precluding the
consideration of nominees and other matters at a particular
meeting or (ii) discouraging or deterring a third party from
conducting a solicitation of proxies to elect its own slate of
directors or otherwise attempting to obtain control of the
Company, if the proper procedures are not followed, even if such
matters may be deemed by some stockholders to be beneficial to
the Company and its stockholders.
ITEM 2. EXHIBITS
*Exhibit 1. Form of stock
certificate of
common stock,
par value $.01
per share.
Exhibit 2. Form of Amended
and Restated
Certificate of
Incorporation
of the Company,
as filed March
__, 1996.
Exhibit 3. Form of Amended
and Restated
By-Laws of the
Company, as
amended as of
March __, 1996.
* To be filed by amendment.
SIGNATURES
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
DIAGNOSTIC/RETRIEVAL SYSTEMS, INC.
By:______________________________
Nancy R. Pitek
Comptroller,
Treasurer and Secretary
Dated: March 26, 1996
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
*1. Form of stock certificate of common stock, par value
$.01 per
share.
2. Form of Amended and Restated Certificate of Incorporation
of the Company, as filed March __, 1996.
3. Form of Amended and Restated By-Laws of the Company,
as amended as of March __, 1996.
* To be filed by amendment.
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DIAGNOSTIC/RETRIEVAL SYSTEMS, INC.
We, the President and Secretary of
Diagnostic/Retrieval Systems, Inc., a corporation
existing under the laws of the State of Delaware, do
hereby certify as follows:
The original Certificate of Incorporation
of Diagnostic/Retrieval Systems, Inc. (the
"Corporation") was filed with the Secretary of State
of the State of Delaware on November 8, 1968.
This Amended and Restated Certificate of
Incorporation restates, integrates and further
amends the provisions of the Certificate of
Incorporation of the Corporation.
This Amended and Restated Certificate of
Incorporation has been duly adopted, all in
accordance with the provisions of Sections 242 and
245 of the Delaware General Corporation Law.
Upon the filing (the "Effective Time") of
this Amended and Restated Certificate of
Incorporation pursuant to the Delaware General
Corporation Law, each share of the Company's Class A
Common Stock, par value $.01 per share (the "Class A
Common Stock"), and each share of the Company's
Class B Common Stock, par value $.01 per share (the
"Class B Common Stock"), shall be reclassified as
and changed into one validly issued, fully paid and
non-assessable share of Common Stock authorized by
subparagraph (a) of Article FOURTH, without any
action by the holder thereof. Each certificate that
theretofore represented a share or shares of Class A
Common Stock or Class B Common Stock shall
thereafter represent that number of shares of Common
Stock into which the share or shares of Class A
Common Stock or Class B Common Stock represented by
such Certificate shall have been reclassified.
FIRST: The name of the corporation
(hereinafter called the "corporation") is
Diagnostic/Retrieval Systems, Inc.
SECOND: The address, including street,
number, city and county of the registered office of
the corporation in the State of Delaware is
Wilmington, County of New Castle (19905); and the
name of the registered agent of the corporation in
the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and of
the purposes to be conducted and promoted by the
corporation, which shall be in addition to the
authority of the corporation to conduct any lawful
business, to promote any lawful purpose, and to
engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of the State of Delaware, is as
follows:
To carry on a general mercantile,
industrial, investing, and trading business in all
its branches; to devise, invent, manufacture,
fabricate, assemble, install, service, maintain,
alter, buy, sell, import, export, license as
licensor or licensee, lease as lessor or lessee,
distribute, job, enter into, negotiate, execute,
acquire, and assign contracts in respect of, as
principal, and as sales, business, special, or
general agent, representative, broker, factor,
merchant, distributor, jobber, advisor, and in any
other lawful capacity, goods, wares, merchandise,
commodities, and unimproved, improved, finished,
processed, and other real, personal, and mixed pro-
party of any and all kinds, together with the
components, resultants, and by-products thereof.
To purchase, receive, take by grant, gift,
devise, bequest or otherwise, lease or otherwise
acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal
property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange,
transfer or otherwise dispose of, or mortgage or
pledge, all or any of its property and assets, or
any interest therein, wherever situated.
To engage generally in the real estate
business as principal, agent, broker, and in any
lawful capacity, and generally to take, lease,
purchase, or otherwise acquire, and to own, use,
hold, sell, convey, exchange, mortgage, work, clear,
improve, develop, divide, and otherwise handle,
manage, operate, deal in, and dispose of, real
estate, real property, lands, multiple-dwelling
structures, houses, buildings and other works and
any interest or right therein; to take, lease,
purchase or otherwise acquire, and to own, use,
hold, sell, convey, exchange, hire, pledge,
mortgage, and otherwise handle, and deal in and
dispose of, as principal, agent, broker, and in any
lawful capacity, such personal property, chattels,
chattels real, rights, easements, privileges,
chooses in action, notes, bonds, mortgages, and
securities as may lawfully be acquired, held, or
disposed of, and to acquire, purchase, sell, assign,
transfer, dispose of, and generally deal in and
with, as principal, agent, broker, and in any lawful
capacity, mortgages and other interests in real,
personal, and mixed properties; to carry on a
general construction, contracting, building, and
realty management business as principal, agent,
representative, contractor, sub-contractor, and in
any other lawful capacity.
To apply for, register, obtain, purchase,
lease, take licenses in respect of, or otherwise
acquire, and to hold, own, use, operate, develop,
enjoy, turn to account, grant licenses, franchises
and immunities in respect of, manufacture under and
to introduce, sell, assign, mortgage, pledge or
otherwise dispose of, and, in any manner, deal with
and contract with reference to:
(a) inventions, devices,
formulae, processes and any
improvements and modifications
thereof;
(b) letters patent, patent
rights, patented processes,
copyrights, designs, and similar
rights, trade-marks, trade names,
trade symbols and other indications
of origin and ownership granted by or
recognized under the laws of the
United States of America, the
District of Columbia, any state or
subdivision thereof, and any
commonwealth, territory, possession,
dependency, colony, agency or
instrumentality of the United States
of America and of any foreign
country, and all rights connected
therewith or appertaining thereunto;
(c) franchises, licenses,
grants and concessions.
To guarantee, purchase, take, receive,
subscribe for, and otherwise acquire, own, hold,
use, and otherwise employ, sell, lease, exchange,
transfer, and otherwise dispose of, mortgage, lend,
pledge, and otherwise deal in and with, securities
(which term, for the purpose of this Article THIRD,
includes, without limitation of the generality
thereof, any shares of stock, bonds, debentures,
notes, mortgages, other obligations, and any
certificates, receipts or other instruments
representing rights to receive, purchase or
subscribe for the same, or representing any other
rights or interests therein or in any property or
assets) of any persons, domestic and foreign firms,
associations, and corporations, and by any
government or agency or instrumentality thereof; to
make payment therefor in any lawful manner; and,
while owner of any such securities, to exercise any
and all rights, powers and privileges in respect
thereof, including the right to vote.
To make, enter into, perform and carry out
contracts of every kind and description with any
person, firm, association, corporation or government
or agency or instrumentality thereof.
To acquire by purchase, exchange or
otherwise, all, or any part of, or any interest in,
the properties, assets, business and good will of
any one or more persons, firms, associations or
corporations heretofore or hereafter engaged in any
business for which a corporation may now or
hereafter be organized under the laws of the State
of Delaware; to pay for the same in cash, property
or its own or other securities; to hold, operate,
reorganize, liquidate, sell or in any manner dispose
of the whole or any part thereof; and in connection
therewith, to assume or guarantee performance of any
liabilities, obligations or contracts of such
persons, firms, associations or corporations, and to
conduct the whole or any part of any business thus
acquired.
To lend money in furtherance of its
corporate purposes and to invest and reinvest its
funds from time to time to such extent, to such
persons, firms, associations, corporations,
governments or agencies or instrumentalities
thereof, and on such terms and on such security, if
any, as the Board of Directors of the corporation
may determine.
To make contracts of guaranty and
suretyship of all kinds and endorse or guarantee the
payment of principal, interest or dividends upon,
and to guarantee the performance of sinking fund or
other obligations of, any securities, and to
guarantee in any way permitted by law the
performance of any of the contracts or other
undertakings in which the corporation may otherwise
be or become interested, of any person, firm,
association, corporation, government or agency or
instrumentality thereof, or of any other
combination, organization or entity whatsoever.
To borrow money without limit as to amount
and at such rates of interest as it may determine;
from time to time to issue and sell its own
securities, including its shares of stock, notes,
bonds, debentures, and other obligations, in such
amounts, on such terms and conditions, for such
purposes and for such prices, now or hereafter
permitted by the laws of the State of Delaware and
by this certificate of incorporation, as the Board
of Directors of the corporation may determine; and
to secure any of its obligations by mortgage, pledge
or other encumbrance of all or any of its property,
franchises and income.
To be a promoter or manager of other
corporations of any type or kind; and to participate
with others in any corporation, partnership, limited
partnership, joint venture, or other association of
any kind, or in any transaction, undertaking or
arrangement which the corporation would have power
to conduct by itself, whether or not such
participation involves sharing or delegation of
control with or to others.
To draw, make, accept, endorse, discount,
execute, and issue promissory notes, drafts, bills
of exchange, warrants, bonds, debentures, and other
negotiable or transferable instruments and evidences
of indebtedness whether secured by mortgage or
otherwise, as well as to secure the same by mortgage
or otherwise, so far as may be permitted by the laws
of the State of Delaware.
To purchase, receive, take, reacquire or
otherwise acquire, own and hold, sell, lend,
exchange, reissue, transfer or otherwise dispose of,
pledge, use, cancel, and otherwise deal in and with
its own shares and its other securities from time to
time to such an extent and in such manner and upon
such terms as the Board of Directors of the
corporation shall determine; provided that the
corporation shall now use its funds or property for
the purchase of its own shares of capital stock when
its capital is impaired or when such use would cause
any impairment of its capital, except to the extent
permitted by law.
To organize, as an incorporator, or cause
to be organized under the laws of the State of
Delaware, or of any other state of the United States
of America, or of the District of Columbia, or of
any commonwealth, territory, dependency, colony,
possession, agency or instrumentality of the United
States of America, or of any foreign country, a
corporation or corporations for the purpose of
conducting and promoting any business or purpose for
which corporations may be organized, and to
dissolve, wind up, liquidate, merge or consolidate
any such corporation or corporations or to cause the
same to be dissolved, wound up, liquidated, merged
or consolidated.
To conduct its business, promote its
purposes, and carry on its operations in any and all
of its branches and maintain offices both within and
without the State of Delaware, in any and all States
of the United States of America, in the District of
Columbia, and in any or all commonwealths,
territories, dependencies, colonies, possessions,
agencies or instrumentalities of the United States
of America and of foreign governments.
To promote and exercise all or any part of
the foregoing purposes and powers in any and all
parts of the world, and to conduct its business in
all or any of its branches as principal, agent,
broker, factor, contractor, and in any other lawful
capacity, either alone or through or in conjunction
with any corporations, associations, partnerships,
firms, trustees, syndicates, individuals,
organizations, and other entities in any part of the
world, and, in conducting its business and promoting
any of its purposes, to maintain offices, branches
and agencies in any part of the world, to make and
perform any contracts and to do any acts and things,
and to carry on any business, and to exercise any
powers and privileges suitable, convenient, or
proper for the conduct, promotion, and attainment of
any of the business and purposes herein specified or
which at any time may be incidental thereto or may
appear conducive to, or expedient for, the
accomplishment of any of such business and purposes
and which might be engaged in or carried on by a
corporation incorporated or organized under the
General Corporation Law of the State of Delaware,
and to have and exercise all of the powers conferred
by the laws of the State of Delaware upon
corporations incorporated or organized under the
General Corporation Law of the State of Delaware.
The foregoing provisions of this Article
THIRD shall be construed both as purposes and powers
and each as an independent purpose and power. The
foregoing enumeration of specific purposes and
powers shall not be held to limit or restrict in any
manner the purposes and powers of the corporation,
and the purposes and powers herein specified shall,
except when otherwise provided in this Article
THIRD, be in no way limited or restricted by
reference to, or inference from, the terms of any
provision of this or any other Article of this
certificate of incorporation; provided, that the
corporation shall not conduct any business, promote
any purpose, or exercise any power or privilege
within or without the State of Delaware which, under
the laws thereof, the corporation may not lawfully
conduct, promote, or exercise.
FOURTH: (a) The aggregate number of
shares of capital stock which the corporation is
authorized to issue is 22,000,000 consisting of
20,000,000 shares of Common Stock each having a par
value of $0.01 per share and 2,000,000 shares of
Preferred Stock each having a par value of $10.00
per share.
(b) No holder of shares of
stock of the corporation of any class now or
hereafter authorized shall be entitled as of right
to purchase or subscribe for any part of any
unissued shares of stock of the corporation of any
class now or hereafter authorized or any additional
shares of stock to be issued by reason of any
increase of the authorized capital stock of the
corporation of any class, or any bonds, certificates
of indebtedness, debentures or other securities
convertible into stock of the corporation of any
class now or hereafter authorized, but any such
unissued stock or such additional authorized issue
of new stock, or such securities convertible into
stock, may be issued and disposed of, pursuant to
resolutions of the Board of Directors, to such
persons, firms, corporations or associations, and
upon such terms, as may be deemed advisable by the
Board of Directors in the exercise of its
discretion.
(c) The Board of Directors
hereby is vested with the authority to provide for
the issuance of the Preferred Stock, at any time and
from time to time, in one or more series, each of
such series to have such powers, designations,
preferences and relative, participating or optional
or other special rights and such qualifications,
limitations or restrictions thereon as expressly
provided in the resolution or resolutions duly
adopted by the Board of Directors providing for the
issuance of shares of such series. The authority
which hereby is vested in the Board of Directors
shall include, but not be limited to, the authority
to provide for the following matters relating to
each series of the Preferred Stock:
(1) the number of shares
to constitute such series and the designations
thereof;
(2) the voting power, if
any, of holders of shares of such series and,
if voting power is limited, the circumstances
under which such holders may be entitled to
vote; provided, however, that the Board of
Directors shall not create any series of
Preferred Stock with more than one vote per
share;
(3) the rate of dividends,
if any, and the extent of further participation
in dividend distributions, if any, and whether
dividends shall be cumulative or non-
cumulative;
(4) whether or not such
series shall be redeemable, and, if so, the
terms and conditions upon which shares of such
series shall be redeemable;
(5) the extent, if any, to
which such series shall have the benefit of any
sinking fund provision for the redemption or
purchase of shares;
(6) the rights, if any, of
such series, in the event of the dissolution of
the corporation, or upon any distribution of
the assets of the corporation; and
(7) whether or not the
shares of such series shall be convertible,
and, if so, the terms and conditions upon which
shares of such series shall be convertible.
FIFTH: The corporation is to have
perpetual existence.
SIXTH: 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.
SEVENTH: For the management of the
business and for the conduct of the affairs of the
corporation, and in further definition, limitation
and regulation of the powers of the corporation and
of its directors and of its stockholders or any
class thereof, as the case may be, it is further
provided:
1. The management of the business
and the conduct of the affairs of the
corporation, including the election
of the Chairman of the Board of
Directors, if any, the President, the
Treasurer, the Secretary, and other
principal officers of the
corporation, shall be vested in its
Board of Directors. The number of
directors which shall constitute the
whole Board of Directors shall be
fixed by, or in the manner provided
in, the By-Laws. The phrase "whole
Board" and the phrase "total number
of directors" shall be deemed to have
the same meaning, to wit, the total
number of directors which the
corporation would have if there were
no vacancies. No election of
directors need be by written ballot.
2. Directors are and shall continue
to be divided into three subclasses.
As of the date hereof, the subclasses
Class A-I, Class A-II and Class A-III
shall be designated Class I, Class II
and Class III, respectively. The
number of directors in each subclass
shall continue to be determined by
the Board of Directors and shall
consist of as nearly equal a number
of directors as possible. The term
of Class I directors initially shall
expire at the annual meeting of
stockholders held in 1996; the term
of Class II directors initially shall
expire at the next ensuing annual
meeting of stockholders; and the term
of Class III directors initially
shall expire at the second ensuing
annual meeting of stockholders. In
the case of each class, the directors
shall serve until their respective
successors are duly elected and
qualified. At each annual meeting of
stockholders, directors of the
respective class whose term expires
shall be elected, and the directors
chosen to succeed those whose terms
shall have expired shall be elected
to hold office for a term to expire
at the third ensuing annual meeting
of stockholders after their election,
and until their respective successors
are elected and qualified.
Any vacancy in the office of a
director may be filled by the vote of
the majority of the remaining
directors, regardless of any quorum
requirements set forth in the By-Laws
of the corporation. Any director
elected to fill a vacancy in the
office of director shall serve until
the next annual meeting of
stockholders at which directors of
the class for which such director
shall have been chosen are to be
elected, and until his or her
successor is elected and qualified.
Newly created directorships may be
filled by the Board of Directors.
3. In furtherance and not in
limitation of the powers conferred by
statute, the power to adopt, alter,
or repeal the By-Laws of the
Corporation shall be vested in the
Board of Directors as well as the
stockholders; stockholders may not
make, adopt, alter, amend, change or
repeal the By-Laws of the Corporation
except upon the affirmative vote of
not less than sixty-six and two-
thirds percent (66 %) of the
outstanding stock of the Corporation
entitled to vote thereon.
4. Whenever the corporation shall be
authorized to issue only one class of
stock, each outstanding share shall
entitle the holder thereof to notice
of, and the right to vote at, any
meeting of stockholders. Whenever
the corporation shall be authorized
to issue more than one class of
stock, no outstanding share of any
class of stock which is denied voting
power under the provisions of the
certificate of incorporation shall
entitle the holder thereof to notice
of, and the right to vote at, any
meeting of stockholders, except as
required by law; provided, that no
share of any such class which is
otherwise denied voting power shall
entitle the holder thereof to vote
upon the increase or decrease in the
number of authorized shares of said
class.
5. Notwithstanding any other
provisions of this Certificate of
Incorporation or the By-Laws of the
Corporation to the contrary, any
action required or permitted to be
taken by the stockholders of the
Corporation must be effected at a
duly called annual or special meeting
of such stockholders and may not be
taken by written consent without such
a meeting.
6. No director shall be personally
liable to the Corporation or its
stockholders for monetary damages for
any breach of fiduciary duty by such
director as a director.
Notwithstanding the foregoing
sentence, a director shall be liable
to the extent provided by applicable
law (i) for breach of the director's
duty of loyalty to the Corporation or
its stockholders, (ii) for acts or
omissions not in good faith or which
involve intentional misconduct or a
knowing violation of law, (iii)
pursuant to Section 174 of the
Delaware General Corporation Law or
(iv) for any transaction from which
the director derived an improper
personal benefit. No amendment to or
repeal of this subsection 6 to
Article SEVENTH shall apply to or
have any effect on the liability or
alleged liability of any director of
the corporation for or with respect
to any acts or omissions of such
director occurring prior to such
amendment.
EIGHTH: (a) No contract or transaction
between the corporation and one or more of its
directors or officers, or between the corporation
and any other corporation, partnership, association,
or other organization in which one or more of its
directors or officers are directors or officers, or
have a financial interest, shall 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 of Directors or a
committee thereof which authorizes the contract or
transaction, or solely because his or their votes
are counted for such purpose, if:
(1) The material facts as to
his relationship or interest and as
to the contract or transaction are
disclosed or are known to the Board
of Directors 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 be less than
a quorum; or
(2) The material facts as to
his 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
(3) The contract or transaction
is fair as to the corporation as of
the time it is authorized, approved
or ratified, by the Board of
Directors, a committee thereof, or
the stockholders.
(b) Common or interested
directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or
transaction.
NINTH: (a) The corporation shall have
power to indemnify any person who was or is a party
or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the
right of the corporation) by reason of the fact that
he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the
request of the corporation as a director, officer,
employee or agent of another corporation,
partnership, joint venture, trust or other
enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding
if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect
to any criminal action or proceeding, had no
reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create an
assumption that the person did not act in good faith
and in a manner which he reasonably believed to be
in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) The corporation shall have
power to indemnify any person who was or is a party
or is threatened to be made a party to any
threatened, pending or completed action or suit by
or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request
of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or
settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the
corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be
liable for negligence or misconduct in the
performance of his duty to the corporation unless,
and only to the extent that, the Court of Chancery
or the court in which such action or suit was
brought shall determine upon application that,
despite the adjudication of liability but in view of
all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other
court shall deem proper.
(c) To the extent that a
director, officer, employee or agent of the
corporation has been successful on the merits or
otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b), or
in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(d) Any indemnification under
paragraphs (a) and (b) (unless ordered by a court)
shall be made by the corporation only as authorized
in the specific case upon a determination that
indemnification of the director, officer, employee
or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth
in paragraphs (a) and (b). Such determination shall
be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or
(2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses incurred in
defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors
in the specific case upon receipt of any undertaking
by or on behalf of the director, officer, employee
or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be
indemnified by the corporation as authorized in this
Article.
(f) The indemnification
provided by this Article shall not be deemed
exclusive of any other rights to which those seeking
indemnification may be entitled under any By-Law,
agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his
official capacity and as to action in another
capacity while holding such office, and shall
continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and
administrators of such a person.
(g) The corporation shall have
power to purchase and maintain insurance on behalf
of any person who is or was a director, officer,
employee or agent of the corporation, or is or was
serving at the request of the corporation as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or
other enterprise against any liability asserted
against him and incurred by him in any such capacity
or arising out of his status as such, whether or not
the corporation would have the power to indemnify
him against such liability under the provisions of
this Article.
TENTH: From time to time any of the
provisions of this certificate of incorporation may
be amended, altered or repealed, and other
provisions authorized by the laws of the State of
Delaware at the time in force may be added or
inserted in the manner and at the time prescribed by
said laws and by this certificate of incorporation.
All rights at any time conferred upon the
stockholders of the corporation by this certificate
of incorporation are granted subject to the
provisions of this Article TENTH.
IN WITNESS WHEREOF, we have duly executed this
certificate on behalf of the corporation this th day
of March, 1996.
Mark S. Newman
Chairman of the Board,
President and Chief
Executive Officer
AMENDED AND RESTATED
BY-LAWS
OF
DIAGNOSTIC/RETRIEVAL SYSTEMS, INC.
(a Delaware corporation)
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of Dover,
County of Kent, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places both within and
without the State of Delaware as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Annual meetings
and special meetings of the stockholders shall be held at
such time and place, either within or without the State
of Delaware, as shall be fixed from time to time by the
Board of Directors. Whenever the directors shall fail to
fix such place, the meeting shall be held at the
registered office of the Corporation in the State of
Delaware.
Section 2. Annual Meetings. The annual
meeting shall be held on the date and at the time fixed,
from time to time, by the Board of Directors, provided,
each successive annual meeting shall be held on a date
within thirteen months after the date of the preceding
annual meeting. Annual meetings may be called by the
Board of Directors or by any officer instructed by the
Board of Directors to call the meeting.
Section 3. Special Meetings. Special meetings
shall be held on the dates and at the time fixed by the
Board of Directors. Special meetings may be called by
the Board of Directors or by any officer instructed by
the Board of Directors to call the meeting.
Section 4. Notice or Waiver of Notice.
Written notice of all meetings shall be given, stating
the place, date and hour of the meeting and stating the
place within the city or other municipality or community
at which the list of stockholders of the Corporation may
be examined. The notice of an annual meeting shall state
that the meeting is called for the election of directors
and for the transaction of other business which may
properly come before the meeting, and shall (if any other
action which could be taken at a special meeting is to be
taken at such annual meeting) state the purpose or
purposes. The notice of a special meeting in all
instances shall state the purpose or purposes for which
the meeting is called. If any action is proposed to be
taken which would, if taken, entitle stockholders to
receive payment for their shares of stock, the notice
shall include a statement of that purpose and to that
effect.
Section 5. Conduct of Meeting. Meetings of
the stockholders shall be presided over by one of the
following officers in the order of seniority and if
present and acting - the Chairman of the Board, if any,
the Vice-Chairman of the Board, if any, the President, a
Vice-President, or, if none of the foregoing is in office
and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the Corporation, or in
his or her absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the chairman of the
meeting shall appoint a secretary of the meeting.
Section 6. Proxy Representation. Every
stockholder may authorize another person or persons to
act for such stockholder by proxy in all matters in which
a stockholder is entitled to participate, whether by
waiving notice of any meeting, voting or participating at
a meeting. Every proxy must be signed by the stockholder
or by such stockholder's attorney-in-fact. No proxy
shall be voted or acted upon after three years from its
date unless such proxy provides for a longer period. A
duly executed proxy shall 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 proxy may be made irrevocable
regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest
in the Corporation generally.
Section 7. Nature of Business. No business
may be transacted at an annual meeting of Stockholders,
other than business that is either: (a) specified in the
notice of meeting (or any supplement thereto) given by or
at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction
of the Board of Directors (or any duly authorized
committee thereof) or (c) otherwise properly brought
before the annual meeting by any stockholder of the
Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this
Section 7 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and
(ii) who complies with the notice procedures set forth in
this Section 7.
In addition to any other applicable
requirements, for business to be properly brought before
an annual meeting by a stockholder, such stockholder must
have given timely notice thereof in proper written form
to the Secretary of the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual
meeting of the stockholders; provided, however, that in
the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to
be timely must be so received not later than the close of
business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the
annual meeting was made, whichever occurs first.
To be in proper written form, a stockholder's
notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the annual
meeting: (a) a brief description of the business desired
to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting; (b)
the name and record address of such stockholder; (c) the
class or series and number of shares of capital stock
which are owned beneficially or of record by such
stockholder; (d) a description of all arrangements or
understandings between such stockholder and any other
person or persons (including their names) in connection
with the proposal of such business by such stockholder
and any material interest of such stockholder in such
business; and (e) a representation that such stockholder
intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be conducted at the annual
meeting of stockholders except business brought before
the annual meeting in accordance with this Section 7;
provided, however, that, once business has been properly
brought before the annual meeting in accordance with such
procedures, nothing in this Section 7 shall be deemed to
preclude discussion by any stockholder of any such
business. If the Chairman of an annual meeting
determines that business was not properly brought before
the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting
that the business was not properly brought before the
meeting and such business shall not be transacted.
Section 8. Nomination of Directors. Only
persons who are nominated in accordance with the
following procedures shall be eligible for election as
directors of the Corporation. Nominations of persons for
election to the Board of Directors may be made at any
annual meeting of stockholders, or at any special meeting
of stockholders called for the purpose of electing
directors, (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or
(b) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the
notice provided for in this Section 8 and on the record
date for the determination of stockholders entitled to
vote at such meeting and (ii) who complies with the
notice procedures set forth in this Section 8.
In addition to any other applicable
requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation (a) in
the case of an annual meeting, not less than sixty (60)
days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the
event that the annual meeting is called for a date that
is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to
be timely must be so received not later than the close of
business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b)
in the case of a special meeting of stockholders called
for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the
day on which notice of the date of the special meeting
was mailed or public disclosure of the date of the
special meeting was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business
address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
record by the person and (iv) any other information
relating to the person that would be required to be
disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder
giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of
shares of capital stock of the Company which are owned
beneficially or of record by such stockholder, (iii) a
description of all arrangements or understandings between
such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to
which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (v) any
other information relating to such stockholder that would
be required to be disclosed in a proxy statement or other
filings required to be made in connection with
solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder. Such notice must
be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a
director of the Corporation unless nominated in
accordance with the procedures set forth in this Section
8. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing
procedures, the Chairman shall declare to the meeting
that the nomination was defective and such defective
nomination shall be disregarded.
Section 9. Inspectors and Judges. The
directors, in advance of any meeting, shall appoint one
or more inspectors of election or judges of the vote, as
the case may be, to act at the meeting or any adjournment
thereof. The directors may designate one or more persons
as alternate inspectors or judges to replace any
inspector or judge who fails to act. If no inspector or
judge or alternate inspector or judge is able to act at a
meeting of stockholders, the person presiding at the
meeting shall appoint one or more inspectors or judges to
act at the meeting. Each inspector, or judge, if any,
before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the
duties of inspector or judge at such meeting with strict
impartiality and according to the best of his or her
ability. The inspectors or judges, if any, shall
determine the number of shares of stock outstanding and
the voting power of each, the shares of stock represented
at the meeting, the existence of a quorum, the validity
and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and
questions arising in connection with the right to vote,
count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all
stockholders. On request of the person presiding at the
meeting, the inspector or inspectors or judge or judges,
if any, shall make a report in writing of any challenge,
question or matter determined by him, her or them and
execute a certificate of any fact found by him, her or
them.
Section 10. Quorum. The holders of a majority
of the outstanding shares of common stock of the
Corporation issued, outstanding and entitled to vote,
present in person or represented by proxy, shall
constitute a quorum at a meeting of stockholders for the
transaction of any business. However, the foregoing
shall not be deemed to permit a vote upon any transaction
as to which the certificate of incorporation or these By-
Laws require approval by a vote of the holders of more
than a majority of the outstanding shares of common stock
of the Corporation, or by more than a majority of the
outstanding votes to which the holders of the outstanding
shares of common stock of the Corporation are entitled,
unless the holders of such portion of the outstanding
shares of common stock of the Corporation, or the holders
of shares entitled to such portion of votes, as the case
may be, are present, whether in person or by proxy. The
stockholders present may adjourn the meeting to some
future time, without notice other than announcement at
the meeting, despite the absence of a quorum.
Section 11. Voting. Each share of common
stock shall entitle the holder thereof to one vote with
respect to any matters presented at any meeting of
stockholders. In the election of each class of
directors, a plurality of the votes cast with respect to
each respective class shall elect. Any other action
shall be authorized by a majority of the votes cast
except where the Delaware General Corporation Law
prescribes a different percentage of votes and/or a
different exercise of voting power and except as
otherwise provided in these By-Laws or the certificate of
incorporation. In the election of directors, voting need
not be by ballot. Voting by ballot shall not be required
for any other corporate action except as otherwise
provided by the Delaware General Corporation Law.
Section 12. Stockholder List. The officer of
the Corporation who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of
the stockholders showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place
within the city or other municipality or community where
the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is
present.
Section 13. Stock Ledger. The stock ledger of
the Corporation shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger,
the list required by Section 11 of this Article II or the
books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Duties and Powers. The business of
the Corporation shall be managed by or under the
direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the
certificate of incorporation or by these By-Laws directed
or required to be exercised or done by the stockholders.
The use of the phrase "whole Board" herein refers to the
total number of directors which the corporation would
have if there were no vacancies.
Section 2. Number and Qualifications of
Directors. The number of directors which shall
constitute the whole Board shall be such number, not less
than five nor more than nine, as shall be determined from
time to time by a resolution adopted by the directors
then in office or by the remaining director if there be
only one. Until such time as action shall be taken by
the Board to determine a different number, the number of
directors which shall constitute the whole Board shall be
five. Directors need not be stockholders of the
Corporation, citizens of the United States, or residents
of the State of Delaware.
Section 3. Meetings. Meetings of the Board of
Directors of the Corporation shall be held at such place
within or without the State of Delaware as shall be fixed
by the Board of Directors. Meetings of the Board of
Directors shall be held at such time as the Board of
Directors shall fix, except that the first meeting of a
newly elected Board shall be held as soon after its
election as the directors may conveniently assemble. No
call shall be required for regular meetings of the Board
of Directors for which the time and place have been
fixed. Special meetings of the Board of Directors may be
called by or at the direction of the Chairman of the
Board, if any, the Vice-Chairman of the Board, if any, or
the President, or of a majority of the directors in
office.
Section 4. Notice or Waiver of Notice. No
notice shall be required for regular meetings for which
the time and place have been fixed. Written, oral or any
other mode of notice of the time and place shall be given
for special meetings in sufficient time for the
convenient assembly of the directors thereat. The notice
of any meeting need not specify the purpose of the
meeting. Any requirements of furnishing a notice shall
be waived by any director who signs a written waiver of
such notice before or after the time stated therein.
Section 5. Quorum. Except as may be otherwise
specifically provided by law, the certificate of
incorporation or these By-Laws, a majority of the whole
Board shall constitute a quorum except when a vacancy or
vacancies prevents such majority, whereupon a majority of
the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least
one-third of the whole Board. A majority of the
directors present, whether or not a quorum is present,
may adjourn a meeting to another time and place. Except
as otherwise provided in the certificate of incorporation
or these By-Laws, and except as otherwise provided by the
Delaware General Corporation Law, the act of the Board
shall be the act by vote of a majority of the directors
present at a meeting, a quorum being present. The quorum
and voting provisions herein stated shall not be
construed as conflicting with any provisions of the
Delaware General Corporation Law, the certificate of
incorporation or these By-Laws which govern a meeting of
directors held to fill vacancies and newly created
directorships in the Board.
Section 6. Action in Writing. Any action
required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or
committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section 7. Meetings by Means of Conference
Telephone. Unless otherwise provided by the certificate
of incorporation or these By-Laws, members of the Board
of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in
a meeting of the Board of Directors or such committee by
means of a conference telephone 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 7 shall constitute
presence in person at such meeting.
Section 8. Chairman of the Meeting. The
President if present and acting, shall preside at all
meetings. Otherwise, any other officer chosen by the
Board, shall preside.
Section 9. Committees. The Board of Directors
may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee
to consist of two 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. Any such committee, to the extent
provided in the resolution of the Board, shall have and
may exercise the powers of the Board of Directors in the
management of the business and affairs of the
Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require
it. In the absence or disqualification of any member of
any such committee or committees, the member or members
thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute
a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
Section 10. Compensation. The directors may
be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such
payment shall preclude any director from serving the
Corporation in any other capacity and receiving
compensation therefor. Members of special or standing
committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the
Corporation shall be chosen by the Board of Directors and
shall be a President, a Secretary and a Treasurer. The
Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors, a Vice-Chairman
thereof and one or more Vice-Presidents, Assistant
Secretaries and Assistant Treasurers, and may elect or
appoint such other officers and agents as are desired.
Any number of offices may be held by the same person,
unless otherwise prohibited by law, the certificate of
incorporation or these By-Laws.
Section 2. Election. Unless otherwise
provided in the resolution of election or appointment,
each officer shall hold office until the meeting of the
Board of Directors following the next annual meeting of
stockholders and until such officer's successor has been
elected and qualified, or until their earlier resignation
or removal. Any officer may resign at any time upon
written notice. The Board of Directors may remove any
officer for cause or without cause. Any vacancy
occurring in any office of the Corporation shall be
filled by the Board of Directors.
Section 3. Chairman of the Board of Directors.
Except where by law the signature of the President is
required, the Chairman of the Board of Directors shall
possess the power, as from time to time may be authorized
by the Board of Directors or by the President, to sign
all contracts, certificates and other instruments of the
Corporation. During the absence or disability of the
President, the Chairman of the Board of Directors shall
exercise all the powers and discharge all the duties of
the President as may be authorized by the Board of
Directors or President. The Chairman of the Board of
Directors shall also perform such other duties and may
exercise such other powers as from time to time may be
assigned to him or her by the President, these By-Laws or
by the Board of Directors.
Section 4. President. The President shall,
subject to the control of the Board of Directors, have
general supervision of the business of the Corporation
and shall see that all orders and resolutions of the
Board of Directors are carried into effect. He shall
execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under
the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may
sign and execute documents when so authorized by these
By-Laws, the Board of Directors or the President. In the
absence or disability of the Chairman of the Board of
Directors, or if there be none, the President shall
preside at all meetings of the stockholders and the Board
of Directors. The President shall be the Chief Executive
Officer of the Corporation. The President shall also
perform such other duties and may exercise such other
powers as from time to time may be assigned to him or her
by these By-Laws or by the Board of Directors.
Section 5. Vice-Presidents. At the request of
the President or in his or her absence or in the event of
the President's inability or refusal to act (and if there
be no Chairman of the Board of Directors), the Vice-
President or the Vice-Presidents if there is more than
one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice-
President shall perform such other duties and have such
other powers as the Board of Directors from time to time
may prescribe. If there be no Chairman of the Board of
Directors and no Vice- President, the Board of Directors
shall designate the officer of the Corporation who, in
the absence of the President or in the event of the
inability or refusal of the President to act, shall
perform the duties of the President, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President.
Section 6. Secretary. The Secretary shall
attend all meetings of the Board of Directors and all
meetings of stockholders and record all of the
proceedings thereat in a book or books to be kept for
that purpose; the Secretary shall also perform like
duties for the standing committees when required. The
Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or
President, under whose supervision the Secretary shall
be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the
stockholders and special meetings of the Board of
Directors, and if there be no Assistant Secretary, then
either the Board of Directors or the President may choose
another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary,
if there be one, shall have authority to affix the same
to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by
the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other
officer to affix the seal of the Corporation and to
attest the affixing by such officer's signature. The
Secretary shall see that all books, reports, statements,
certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as
the case may be.
Section 7. Treasurer. The Treasurer shall
have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such
depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so
requires, an account of all his or her transactions as
Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of
the duties of the office of Treasurer and for the
restoration to the Corporation, in case of his or her
death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of
whatever kind in his or her possession or under this
control belonging to the Corporation.
Section 8. Assistant Secretaries. Except as
may be otherwise provided in these By-Laws, Assistant
Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any
Vice-President, if there be one, or the Secretary, and in
the absence of the Secretary or in the event of the
Secretary's disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 9. Assistant Treasurers. Assistant
Treasurers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any
Vice-President, if there be one, or the Treasurer, and in
the absence of the Treasurer or in the event of the
Treasurer's disability or refusal to act, shall perform
the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of
the office of Assistant Treasurer and for the restoration
to the Corporation, in the case of his or her death,
resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in his or her possession or under his or
her control belonging to the Corporation.
Section 10. Other Officers. Such other
officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors.
The Board of Directors may delegate to any other officer
of the Corporation the power to choose such other
officers and to prescribe their respective duties and
powers.
Section 11. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation
by the President or any Vice President and any such
officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may
deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which
the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights
and power incident to the ownership of such securities
and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder
of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of, the Corporation
(i) by the Chairman or Vice-Chairman of the Board of
Directors if any, or by the President or a Vice-President
and (ii) by the Treasurer or any Assistant Treasurer, or
the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by
such holder in the Corporation.
Section 2. Signatures. Any or all of the
signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same
effect as if the signator were such officer, transfer
agent or registrar at the date of issue.
Section 3. Notations on Certificates.
Whenever the Corporation shall be authorized to issue
more than one class of stock or more than one series of
any class of stock, and whenever the Corporation shall
issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or
series or of any such partly paid stock shall set forth
thereon the statements prescribed by the Delaware General
Corporation Law. Any restrictions on the transfer or
registration of transfer of any shares of stock of any
class or series shall be noted conspicuously on the
certificate representing such shares.
Section 4. Lost Certificates. The Corporation
may issue a new certificate of stock in place of any
certificate theretofore issued by it alleged to have been
lost, stolen or destroyed, and the Board of Directors may
require the owner of any lost, stolen or destroyed
certificate, or such owner's legal representative, to
give the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made against it
on account of the alleged loss, theft or destruction of
any such certificate or the issuance of any such new
certificate.
Section 5. Fractional Share Interests. The
Corporation may, but shall not be required to, issue
fractions of a share. In lieu thereof it shall either
arrange for the disposition of fractional interests by
those entitled thereto, pay in cash the fair value of
fractions of a share, as determined by the Board of
Directors, to those entitled thereto or issue scrip or
fractional warrants in registered or bearer form over the
manual or facsimile signature of an officer of the
Corporation or of its agent, exchangeable as therein
provided for full shares, but such scrip or fractional
warrants shall not entitle the holder to any rights of a
stockholder except as therein provided. Such scrip or
fractional warrants may be issued subject to the
condition that the same shall become void if not
exchanged for certificates representing full shares of
stock before a specified date, or subject to the
condition that the shares of stock for which such scrip
or fractional warrants are exchangeable may be sold by
the Corporation and the proceeds thereof distributed to
the holders of such scrip or fractional warrants, or
subject to any other conditions which the Board of
Directors may determine.
Section 6. Transfers. Upon compliance with
provisions restricting the transfer or registration of
transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the
Corporation shall be made only on the stock ledger of the
Corporation by the registered holder thereof, or by such
registered holder's attorney thereunto authorized by
power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer agent or
a registrar, if any, and on surrender of the certificate
or certificates for such shares of stock properly
endorsed and the payment of all taxes due thereon.
Section 7. Record Date. For the purpose of
determining the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment
thereof, or for the purpose of determining stockholders
entitled to receive payment of any dividend or other
distribution or the 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 of Directors may fix,
in advance, a date as the record date for any such
determination of stockholders. Such date shall not
precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and
shall not be more than sixty days or less than ten days
before the date of such meeting, nor more than sixty days
prior to any other action. If no record date is fixed:
the record date for the determination of stockholders
entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day
next preceding the day on which the meeting is held; and
the record date for determining stockholders when prior
action by the Board of Directors is necessary shall be at
the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. When a
determination of stockholders of record entitled to
notice of or to vote at any meeting of stockholders has
been made as provided in this paragraph, such
determination shall apply to any adjournment thereof;
provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section 8. Beneficial Owners. The Corporation
shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on
its books as the owner of shares, and shall not be bound
to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person,
whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
Section 9. Meaning of Certain Terms. As used
herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or
vote thereat, as the case may be, the term "share" or
"shares" or "share of stock" or "shares of stock" or
"stockholder" or "stockholders" refers to an outstanding
share or shares of stock and to a holder or holders of
record of outstanding shares of stock when the
Corporation is authorized to issue only one class of
shares of stock, and said reference is also intended to
include any outstanding share or shares of stock and any
holder or holders of record of outstanding shares of
stock of any class upon which or upon whom the
certificate of incorporation confers such rights where
there are two or more classes or series of shares of
stock or upon whom the Delaware General Corporation Law
confers such rights notwithstanding that the certificate
of incorporation may provide for more than one class or
series of shares of stock, one or more of which are
limited or denied such rights thereunder; provided,
however, that no such right shall vest in the event of an
increase or decrease in the authorized number of shares
of stock of any class or series which otherwise is denied
voting rights under the provisions of the certificate of
incorporation.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice
is required by law, the certificate of incorporation or
these By-Laws, to be given to any director, member of a
committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee
or stockholder, at his or her address as it appears on
the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United
States mail. Written notice may also be given personally
or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any
notice is required by law, the certificate of
incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver
thereof in writing, signed, by the person or persons
entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the
capital stock of the Corporation, subject to the
provisions of the certificate of incorporation, if any,
may be declared by the Board of Directors at any regular
or special meeting, and may be paid in cash, in property,
or in shares of the capital stock. Before payment of any
dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation,
or for any proper purpose, and the Board of Directors may
modify or abolish any such reserve.
Section 2. Disbursements. All checks or
demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person
or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of
the Corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
Section 4. Corporate Seal. The corporate seal
shall be in such form as the Board of Directors shall
prescribe.
