SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 14, 1997
ENVIRODYNE INDUSTRIES, INC.
(Exact Name of Company as Specified in its Charter)
Delaware 0-5485 95-2677354
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification Number)
incorporation or
organization)
701 Harger Road, Suite 190, Oak Brook, Illinois 60521
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (630) 571-8800
Item 5. Other Events
On May 14, 1997, the Board of Directors of Envirodyne Industries, Inc.
("Envirodyne" or the "Company") amended the Company's Amended and
Restated By-law as follows:
(a) Section 1 of Article III has been amended to provide that the
entire Board of Directors of the Company (the "Board") will
consist of five (5) directors;
(b) Section 11 of Article III has been amended to require eighty
percent (80%) approval of the Board to enter into a transaction
between the Company and an Interested Person (as defined in the
By-laws);
(c) Article III has been amended to add a new Section 12 that
establishes a standing committee of Independent Directors known
as the Interested Person Transaction Committee (the "IPTC"). The
IPTC has the following powers and duties: (i) to review, evaluate
and negotiate on behalf of the Company the terms and conditions
of any proposed Interested Transaction, (ii) to recommend to the
Board what action, if any, should be taken with respect to the
proposed Interested Transaction including whether any terms or
conditions thereof should be modified and (iii) to enter into
contracts to retain and to pay the fees, expenses and
disbursements of independent advisors;
(d) Article IX has been amended to require that any amendment,
modification, or repeal of the Amended and Restated By-laws be
approved by eighty percent (80%) of the entire Board; and
(e) The Board adopted certain other amendments to the Company's
Amended and Restated By-laws more fully reflected in the Amended and
Restated By-laws of the Company attached as Exhibit 3.2. hereto.
On May 14, 1997, the Company also announced that it had received a
proposal (the "Zapata Proposal") from Zapata Corporation, a Delaware
corporation ("Zapata") to acquire all of the then outstanding shares of
Envirodyne common stock not owned by Zapata in a negotiated merger in
which Envirodyne stockholders would receive consideration consisting
of $4 cash and shares of Zapata common stock described by Zapata to be
valued at $4.
The Board formed a special committee of independent directors to review
the Zapata Proposal. The members of the committee are Robert N.
Dangremond, Gregory R. Page, and Mark D. Senkpiel. Press releases
issued by the Company relating to these matters are included as
Exhibits 99.1 and 99.2 hereto.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit 3.2 Amended and restated By-laws of Envirodyne Industries,
Inc., as amended through Maya14, 1997
Exhibit 99.1 Press release dated May 14, 1997 related to Zapata Proposal
Exhibit 99.2 Press release dated May 14, 1997 related to amendments to
By-laws and formation of special committee
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.
ENVIRODYNE INDUSTRIES, INC.
Registrant
By: /s/ Gordon S. Donovan
Vice President, Chief
Financial Officer and
Treasurer
May 15, 1997
Exhibit No. Description of Exhibits
Ex. 3.2 Amended and Restated By-laws of Envirodyne Industries,
Inc., as amended through Maya14, 1997
Ex. 99.1 Press release dated May 14, 1997 related to Zapata Proposal
Ex.t 99.2 Press release dated May 14, 1997 related to amendments to
By-laws and formation of special committee
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
ENVIRODYNE INDUSTRIES, INC.
(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. Meetings of the
stockholders for the election of directors or for any
other purpose shall be held at such time and place,
either within or without the State of Delaware, as shall
be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual
Meetings of Stockholders shall be held on such date and
at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the
meeting. Written notice of the Annual Meeting stating
the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before
the date of the meeting.
Section 3. Notice of Stockholder Nominations
of Directors. Only persons who are nominated in
accordance with the following procedures shall be
eligible for election as directors of the Corporation,
except as may be otherwise provided in the Amended and
Restated Certificate of Incorporation of the Corporation.
Nominations of persons for election to the Board of
Directors may be made at any annual meeting of
stockholders (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 3 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 3.
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.
For such notice to be timely for the 1997
Annual Stockholders' Meeting on May 16, 1997, a
stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive
offices of the Corporation on or before March 28, 1997.
Thereafter, 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 ninety (90) days nor more than one hundred
twenty (120) 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 public
disclosure of the date of the annual meeting was made,
whichever first occurs. In no event shall the public
disclosure of an adjournment of an annual meeting
commence a new time period for the giving of a
stockholder's notice as described above.
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 Corporation 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
the 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 be 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
3. 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.
Notwithstanding anything in the third paragraph
of this Section 3 to the contrary, in the event that the
number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no
public disclosure by the Corporation naming all of the
nominees for director or specifying the size of the
increased Board of Directors at least one hundred (100)
days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by
this By-Law shall also be considered timely, but only
with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary
at the principal executive offices of the Corporation not
later than the close of business on the 10th day
following the day on which such public disclosure is
first made by the Corporation.
Section 4. Notice of Stockholder Proposals 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 record on the date of the giving of
the notice provided for in this Section 4 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 4.
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.
For such notice to be timely for the 1997
Annual Stockholders' Meeting on May 16, 1997, a
stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive
offices of the Corporation on or before March 28, 1997.
Thereafter, 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 ninety (90) days nor more than one hundred
twenty (120) 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 public
disclosure of the date of the annual meeting was made,
whichever first occurs. In no event shall the public
disclosure of an adjournment of an annual meeting
commence a new time period for the giving of a
stockholder's notice as described above.
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 (i) 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, (ii)
the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
record by such stockholder, (iv) 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 (v) 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 the procedures set
forth in this Section 4; provided, however, that, once
business has been properly brought before the annual
meeting in accordance with such procedures, nothing in
this Section 4 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 5. Definition. For purposes of
Sections 3 and 4 of these By-laws, "public disclosure"
shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press, PR Newswire,
Bloomberg or comparable national news service or in a
document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
Section 6. Special Meetings. Special Meetings
of Stockholders may be called as provided for in the
Amended and Restated Certificate of Incorporation.
Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes
for which the meeting is called shall be given not less
than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote
at such meeting. Business transacted at all Special
Meetings shall be confined to the purposes stated in the
call.
Section 7. Quorum. Except as otherwise
provided by law or by the Amended and Restated
Certificate of Incorporation, the holders of a majority
of the capital stock issued and outstanding and entitled
to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If,
however, such quorum shall not be present or represented
at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at
which a quorum shall be present or represented, any
business may be transacted which might have been
transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at
the meeting.
Section 8. Voting. Unless otherwise required
by law, the Amended and Restated Certificate of
Incorporation or these Amended and Restated By-Laws, (i)
any question brought before any meeting of stockholders
shall be decided by the vote of the holders of a majority
of the stock represented and entitled to vote thereat and
(ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each
share of the capital stock entitled to vote thereat held
by such stockholder. Such votes may be cast in person or
by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a
longer period. The Board of Directors, in its
discretion, or the officer of the Corporation presiding
at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast
by written ballot.
Section 9. List of Stockholders Entitled to
Vote. The officer of the Corporation who has charge of
the stock ledger of the Corporation shall prepare and
make, at least ten (10) 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 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 (10) days prior to the meeting, either at a
place within the city where the meeting is to be held,
which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the
meeting is to be held. 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 10. 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 6 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. Number and Qualification. The
authorized number of directors that shall constitute the
entire Board of Directors of the Corporation shall be
five (5), at least two (2) of whom shall be Independent
Directors (as defined in Section 11).
Section 2. 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 Amended
and Restated Certificate of Incorporation or by these
Amended and Restated By-Laws directed or required to be
exercised or done by the stockholders.
Section 3. Meetings. The Board of Directors
of the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from
time to time be determined by the Board of Directors at a
duly called meeting of the Board of Directors; provided,
that any director not present at such meeting must be
given notice of any scheduled future regular meeting
within twenty-four (24) hours of the meeting he or she
was unable to attend. Special meetings of the Board of
Directors may be called by the President or by a majority
of the Board of Directors in a duly called meeting of the
Board of Directors. Notice of any Special Meeting
stating the purpose, place, date and hour of the meeting
shall be given to each director either by mail not less
than forty-eight (48) hours before the date of the
meeting or by telephone, electronic facsimile or telegram
on not less than twenty-four (24) hours' notice. In the
event a director is unable to attend a meeting in person,
the Board of Directors shall use all reasonable efforts
to allow such director to attend such meeting by
conference telephone or similar communications equipment.
Section 4. Quorum. Except as may be otherwise
specifically provided by law, the Amended and Restated
Certificate of Incorporation or these Amended and
Restated By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of
business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall
be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors,
the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 5. Actions of Board. Unless otherwise
provided by the Amended and Restated Certificate of
Incorporation or these Amended and Restated By-Laws, any
action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the
Board of Directors or committee, as the case may be,
consent thereto in writing, and the writing or writings
are filed with the minutes or proceedings of the Board of
Directors or committee.
Section 6. Regulations; Manner of Acting. To
the extent consistent with applicable law, the Amended
and Restated Certificate of Incorporation and these
Amended and Restated By-Laws, the Board of Directors may
adopt such rules and regulations for the conduct of
meetings of the Board of Directors and for the management
of the property, affairs and business of the Corporation
as the Board of Directors may deem appropriate.
Section 7. Meetings by Means of Conference
Telephone. Unless otherwise provided by the Amended and
Restated Certificate of Incorporation or these Amended
and Restated 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. Committees. The Board of Directors
may designate and establish one or more committees of the
Board of Directors only by resolution passed by not less
than 80% of the authorized number of directors of the
Corporation. In the absence or disqualification of a
member of a committee, and in the absence of a
designation by the Board of Directors of an alternate
member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Such
appointee must meet any criteria for directors set forth
in these Bylaws, the resolutions of the Board of
Directors designating any committee and in applicable
law. Except as set forth in these Amended and Restated
Bylaws, any such committee, to the extent provided in the
resolution of the Board of Directors passed by not less
than 80% of the authorized number of directors of the
Corporation and subject to any restrictions or
limitations on the delegation of power and authority
imposed by applicable law, shall have and may exercise
all the powers and authority of the Board of Directors in
the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes
and report to the Board of Directors when required;
provided, that the IPTC shall be required to disclose to
the other members of the Board of Directors not on the
IPTC and to any Excluded IPTC Member (as defined in
Section 12) only such information (including, without
limitation, any legal, financial or other advice given to
the IPTC by its advisors) as a majority of the members of
the IPTC deems appropriate from time to time.
Section 9. Reliance on Accounts and Reports,
etc. A director, or a member of any Committee designated
by the Board of Directors shall, in the performance of
his duties, be fully protected in relying in good faith
upon the records of the Corporation and upon information,
opinions, reports or statements presented to the
Corporation by any of the Corporation's officers or
employees, or Committees designated by the Board of
Directors, or by any other person as to the matters the
member reasonably believes are within such other person's
professional or expert competence and who has been
selected with reasonable care by or on behalf of the
Corporation.
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 and/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.
Section 11. Interested Person Transactions.
(a) Notwithstanding any other provision
of these Amended and Restated Bylaws, each transaction,
or, if an individual transaction constitutes a part of a
series of transactions, each series of transactions,
proposed to be entered into between the Corporation or
any of its Affiliates, on the one hand, and any
Interested Person, on the other hand (each an "Interested
Person Transaction"), must be approved by not less than
80% of the authorized number of directors of the
Corporation (after giving the IPTC a reasonable amount of
time to make a recommendation and report as to whether to
approve each such transaction). Notwithstanding the
foregoing, the sale to, or purchase from an Interested
Person of products or raw materials on an arm's-length
basis in the ordinary course of the Corporation's
business consistent with past practice will not be deemed
an Interested Person Transaction. Without limiting the
generality of the foregoing, Interested Person
Transactions include the following: all compensation
arrangements between the Corporation (or its Affiliates)
and an Interested Person; any purchase, sale or issuance
of securities from an Interested Person to the
Corporation (or its Affiliates), or vice-versa; any
action by an Interested Person that would result in a
delisting of the Corporation's common stock; any payment
of a special dividend by the Corporation (or its
Affiliate); settlement of litigation involving an
Interested Person, on the one hand, and the Corporation,
its Affiliates, or any director or officer in his
capacity as such, on the other hand; and any other
significant transaction between an Interested Person and
the Corporation (or its Affiliates).
(b) For the purposes of these Amended and
Restated Bylaws:
(i) "Interested Person" shall
mean (A) any director of the Corporation, (B)
any person who or which, together with all
Affiliates of such person, is the beneficial
owner, or part of a Group which is a beneficial
owner, directly or indirectly, of twenty
percent (20%) or more of the outstanding common
stock of the Corporation (a "Twenty Percent
Stockholder"), (C) any Affiliate or Associate
of any (1) director of the Corporation or (2)
Twenty Percent Stockholder or its Affiliates,
or (D) any person who commences, discontinues,
proposes to settle or otherwise takes any
action with respect to Interested Person
Proceeding;
(ii) "Affiliate" of a person
shall mean (A) any person that, directly or
indirectly, controls or is controlled by or is
under common control with such person, (B) any
other person that owns, beneficially, directly
or indirectly, twenty percent (20%) or more of
the outstanding capital share, shares, equity
interests, or profits interests of such person
or (C) any officer, director, employee,
independent contractor, partner or trustee of
such person or any person controlling,
controlled by or under common control with such
person (excluding trustees and persons serving
in similar capacities who are not otherwise an
Affiliate of such person);
(iii) "Associate" shall mean (A)
any person (other than the Corporation or a
majority-owned subsidiary of the Corporation)
of which such person is a director, officer,
employee or partner or is, directly or
indirectly, the beneficial owner of ten percent
(10%) or more of any class of equity securities
or profits interests, (B) any trust or other
estate in which such person has a substantial
beneficial interest or as to which such person
serves as a trustee or in a similar fiduciary
capacity, (C) any relative or spouse of such
person (whether or not such person lives in the
same home of such person) or (D) any person who
has provided services to, or supplied products
or materials to any person (without limiting
the generality of the forgoing, including,
without limitation, legal, accounting or
consulting services) and received compensation
in excess of $60,000 in any twelve-month period
for such services, products or supplies;
(iv) "person" shall mean and
include individuals, corporations, limited
liability entities, general and limited
partnerships, stock companies or associations,
joint ventures, associations, companies,
trusts, banks, trust companies, land trusts,
business trusts or other entities and
governments and agencies and political
subdivisions thereof;
(v) "control" (including the
correlative meanings of the terms "controlled
by" and "under common control with"), as used
with respect to any person, shall mean the
possession, directly or indirectly, of the
power to direct or cause the direction of the
management and policies of such person, through
agreement, contract, economic influence, the
ownership of voting securities, partnership
interests or other equity interests;
(vi) "Group" shall have the
meaning ascribed to such term in Section
13(d)(3) of the Securities Exchange Act of
1934, as amended and in effect on May 1, 1997;
(vii) "Independent Director"
shall mean any member of the Board of Directors
of the Corporation who is neither a Twenty
Percent Stockholder nor an Affiliate or
Associate of a Twenty Percent Stockholder;
(viii) "Interested Person
Proceeding" shall mean any judicial,
administrative, regulatory or arbitral
proceeding, investigation or inquiry or
administrative charge or complaint pending at
law or in equity before any federal, state,
local or foreign governmental or regulatory
body or any court against the Corporation or
any of its Affiliates, or against its directors
and officers in their capacities as such, and
brought by, or otherwise maintained or
advocated by any Interested Person.
Section 12. Interested Person Transaction
Committee.
(a) The Board of Directors shall at all
times have and maintain a standing committee known as the
Interested Person Transaction Committee (the "IPTC").
The IPTC shall be comprised of all of the Independent
Directors (as defined in Section 11), each of whom shall
be designated to the IPTC by the Board of Directors (or
if not designated by the Board of Directors upon request
of an Independent Director within 10 days of such request
shall be deemed designated to the IPTC automatically and
without further action of the Board of Directors). The
IPTC shall be comprised of no fewer than two directors.
The IPTC shall evaluate and provide recommendations to
the Board of Directors with respect to all proposed
Interested Person Transactions (as defined in Section 11)
(each a "Proposed Interested Person Transaction") prior
to the approval of any Proposed Interested Person
Transaction by the Board of Directors pursuant to Article
III, Section 11 of these Bylaws. Without limiting the
generality of the foregoing, the IPTC shall have the
following powers and duties:
(i) to review and evaluate the
terms and conditions of any Proposed Interested
Person Transaction and to determine, as a
result of its independent consideration, what
actions with respect to any Proposed Interested
Person Transaction may be appropriate and in
the best interests of the Corporation and its
stockholders (including, without limitation,
whether any terms or conditions thereof should
be modified), and to negotiate on behalf of the
Corporation or its Affiliates, prior to the
Board of Directors' giving approval to the
Proposed Interested Person Transaction pursuant
to Article III, Section 11, any modification(s)
to the terms and conditions of the Proposed
Interested Person Transaction it may deem
appropriate and desirable;
(ii) to determine whether any
Proposed Interested Person Transaction is fair
to, and in the best interests of, the
Corporation and its stockholders;
(iii) to retain independent legal
counsel to advise and assist it in connection
with evaluating any Proposed Interested Person
Transaction;
(iv) to retain such other
consultants and agents including, without
limitation, independent investment bankers, as
the IPTC may deem necessary or appropriate to
perform such services and render such opinions
as may be necessary or appropriate for the IPTC
to discharge its duties;
(v) to enter into such
contracts providing for the retention,
compensation, reimbursement of expenses and
disbursements and indemnification of such
independent advisors, legal counsel, investment
bankers, consultants and agents as the IPTC may
deem necessary or appropriate; to the extent
that such independent advisors, legal counsel,
investment bankers, consultants and agents have
been retained by the IPTC, the Corporation
shall be authorized and required to pay all
fees, expenses and disbursements of such
independent advisors, legal counsel, investment
bankers, consultants and agents on presentation
of statements approved by the IPTC; the IPTC
shall have the power to cause the Corporation
to establish a trust fund or other funding
mechanism for the benefit of such independent
advisors, legal counsel, investment bankers,
consultants and agents;
(vi) to oversee and control on
behalf of the Corporation the actions of the
Corporation and its counsel with respect to any
Interested Person Proceeding (as defined in
Section 11) and the approval of the funding of
any legal costs by the Corporation and the IPTC
related thereto; and
(vii) to recommend to the entire
Board of Directors what action, if any, should
be taken by the Corporation with respect to the
Proposed Interested Person Transaction.
(b) The IPTC, and each member thereof,
shall be authorized and empowered to do all acts as may
be necessary or appropriate in its or his or her judgment
to carry out the duties of the IPTC contemplated hereby.
(c) In consideration for service on the
IPTC, the members thereof shall be entitled to receive
fees and reimbursement of expenses in accordance with the
Corporation's policy for Board members serving on
committees currently in effect.
(d) The Corporation shall provide to the
IPTC, each member thereof, and any of its advisers,
agents, counsel and designees, such information and
materials, including, without limitation, the books,
records, projections and financial statements of the
Corporation and any of its Affiliates and any documents,
reports or studies pertaining to the Proposed Interested
Person Transaction as may be useful or helpful in the
discharge of the IPTC's duties or as otherwise may be
determined by the IPTC, or any member thereof, to be
appropriate or advisable in connection with the discharge
of the duties of the IPTC and each of its members.
(e) The officers, agents and employees of
the Corporation are hereby authorized and directed to
assist the IPTC and to provide it with all information
and documents that it shall request with respect to its
consideration and negotiation of the Proposed Interested
Person Transaction, or any modification thereof, or such
other transaction as it may see fit to consider.
(f) The IPTC is authorized to adopt such
procedures concerning its operation as it deems necessary
or appropriate.
(g) In the event any member of the IPTC
has an economic interest other than as a director or
stockholder of the Corporation with respect to any
Proposed Interested Person Transaction (an "Excluded IPTC
Member"), such member shall not be (i) entitled to
participate in any meeting of the IPTC or part of such
meeting involving such Proposed Interested Person
Transaction, (ii) authorized to take any action or
otherwise have any power as a member of the IPTC with
respect to such Proposed Interested Person Transaction or
(iii) entitled to receive any information from the IPTC
or any other members of the IPTC with respect to such
Proposed Interested Person Transaction or the IPTC's
actions or deliberations related thereto.
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
one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of
offices may be held by the same person, unless otherwise
prohibited by law, the Amended and Restated Certificate
of Incorporation or these Amended and Restated By-Laws.
Section 2. Election. The Board of Directors
at its first meeting held after each Annual Meeting of
Stockholders shall elect the officers of the Corporation,
who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors;
and all officers of the Corporation shall hold office
until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer
elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board
of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
The salaries of all officers of the Corporation shall be
fixed by the Board of Directors.
Section 3. 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 powers 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.
Section 4. President. The President shall
preside at all meetings of the stockholders and the Board
of Directors at which he is present. He shall be the
Chief Executive Officer of the Corporation and 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
Amended and Restated By-Laws, the Board of Directors or
the President. The President shall also perform such
other duties and may exercise such other powers as from
time to time may be assigned to him by these Amended and
Restated By-Laws or by the Board of Directors.
Section 5. Vice Presidents. At the request of
the President or in his absence or in the event of his
inability or refusal to act, 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 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 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 he 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 his
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 President or the Board
of Directors so requires, an account of all his
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 his office and for
the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in his possession or under his control
belonging to the Corporation.
Section 8. Assistant Secretaries. Except as
may be otherwise provided in these Amended and Restated
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 his 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 his
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 his office and for the
restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in his possession or under his 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.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder
of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation (i) by
the President or a Vice President and (ii) by the
Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is
countersigned by (i) a transfer agent other than the
Corporation or its employee, or (ii) a registrar other
than the Corporation or its employee, any other signature
on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon 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 he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The Board of
Directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact
by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue
of a new certificate, the Board of Directors may, in its
discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of
Directors shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the
Corporation shall be transferable in the manner
prescribed by law and in these Amended and Restated
By-Laws. Transfers of stock shall be made on the books
of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate
therefor, which shall be cancelled before a new
certificate shall be issued.
Section 5. Record Date. In order that the
Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to 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 of
Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10)
days before the date of such meeting, nor more than sixty
(60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. 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.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice
is required by law, the Amended and Restated Certificate
of Incorporation or these Amended and Restated 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 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
electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any
notice is required by law, the Amended and Restated
Certificate of Incorporation or these Amended and
Restated 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 Amended and Restated 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 by resolution of the Board
of Directors.
Section 4. Corporate Seal. The corporate seal
shall have inscribed thereon the name of the Corporation,
the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions,
Suits or Proceedings Other Than Those by or in the Right
of the Corporation. Subject to Section 3 of this Article
VIII, 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 he is or was
a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the
request of the Corporation as a director, officer,
employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan 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 a presumption 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.
Section 2. Power to Indemnify in Actions,
Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII,
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 he is or was a director
or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust,
employee benefit plan 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;
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 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.
Section 3. Authorization of Indemnification.
Any indemnification under this Article VIII (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 or officer is proper
in the circumstances because he has met the applicable
standard of conduct set forth in Section 1 or Section 2
of this Article VIII, as the case may be. Such
determination shall be made (i) 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 (ii) 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 (iii) by the stockholders. To the extent,
however, that a director or officer of the Corporation
has been successful on the merits or otherwise in defense
of any action, suit or proceeding described above, 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, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined. For purposes
of any determination under Section 3 of this Article
VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books
of account of the Corporation or another enterprise, or
on information supplied to him by the officers of the
Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or
records given or reports made to the Corporation or
another enterprise by an independent certified public
accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in
this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such
person is or was serving at the request of the
Corporation as a director, officer, employee or agent.
The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to
have met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case
may be.
Section 5. Indemnification by a Court.
Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination
thereunder, any director or officer may apply to any
court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible
under Section 1 and Section 2 of this Article VIII. The
basis of such indemnification by a court shall be a
determination by such court that indemnification of the
director or officer is proper in the circumstances
because he has met the applicable standards of conduct
set forth in Section 1 or Section 2 of this Article VIII,
as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII
nor the absence of any determination thereunder shall be
a defense to such application or create a presumption
that the director or officer seeking indemnification has
not met any applicable standard of conduct. Notice of
any application for indemnification pursuant to this
Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application.
If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to
be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance.
Notwithstanding the provisions of Section 3, expenses
incurred by a director or officer in defending or
investigating a threatened or pending action, suit or
proceeding shall be paid by 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
director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this
Article VIII.
Section 7. Nonexclusivity of Indemnification
and Advancement of Expenses. The indemnification and
advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law,
agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity
while holding such office, it being the policy of the
Corporation that indemnification of the persons specified
in Section 1 and Section 2 of this Article VIII or
designated under Section 12 of this Article VIII shall be
made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not
specified in Section 1 or Section 2 of this Article VIII
but whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation
Law of the State of Delaware, under Section 12 of this
Article VIII or otherwise.
Section 8. Insurance. The Corporation may
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 a director or officer of
the Corporation serving at the request of the Corporation
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee
benefit plan 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 or the
obligation to indemnify him against such liability under
the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes
of this Article VIII, references to "the Corporation"
shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is
or was a director, officer, employee or agent of such
constituent corporation, or is or was a director or
officer of such constituent corporation serving at the
request of such constituent corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan
or other enterprise, shall stand in the same position
under the provisions of this Article VIII with respect to
the resulting or surviving corporation as he would have
with respect to such constituent corporation if its
separate existence had continued. For purposes of this
Article VIII, references to "fines" shall include any
excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as
a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as
referred to in this Article VIII.
Section 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided
when authorized or ratified, 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. Any repeal or
modification of this Article VIII by the stockholders
of the Corporation shall not adversely affect any rights
to indemnification and advancement of expenses existing
pursuant to this Article VIII with respect to any acts or
omissions occurring prior to such repeal or modification.
Section 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VIII
to the contrary, except for proceedings to enforce rights
to indemnification (which shall be governed by Section 5
of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in
connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors
of the Corporation.
Section 12. Indemnification of Employees and
Agents. The Corporation may, to the extent authorized
from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to
directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
These Amended and Restated Bylaws may be
altered, amended or repealed, in whole or in part, or new
Bylaws may be adopted by the Board of Directors only by a
vote of at least 80% of the authorized number of
directors of the Corporation.
Exhibit 99.1
FOR IMMEDIATE RELEASE FOR FURTHER INFORMATION:
NASDAQ Small Cap -EDNY MEDIA: INVESTORS
Jeff Zilka Stephen M. Schuster
(312) 255-3048 Gordon S. Donovan
(630) 575-2400
ENVIRODYNE INDUSTRIES FORMS SPECIAL COMMITTEE TO REVIEW
ZAPATA PROPOSAL AND FORMALIZES PROCEDURES
FOR INTERESTED PARTY TRANSACTIONS
OAK BROOK, IL, May 14 -- Envirodyne Industries, Inc. (NASDAQ
Small Cap: EDNY) announced today that its Board of Directors formed a
special committee of independent directors to review the acquisition
proposal received from Zapata Corporation earlier today and adopted certain
amendments to the Company's By-Laws. Following guidance provided by the
Delaware courts, the amendments, among other things, require that
transactions between Envirodyne and an interested party be reviewed by an
independent committee of the Board and approved by eighty percent of all
directors.
Edward Gustafson, Chairman, President and Chief Executive Officer
of Envirodyne, stated that "The Board adopted these procedures to protect
stockholders from the risks of self-dealing that are inherent in
transactions with interested parties."
Envirodyne announced earlier today that it had received a
proposal from Zapata Corporation, Envirodyne's largest stockholder, to
acquire Envirodyne in a negotiated merger. Malcolm and Avram Glazer, who
are Zapata's chairman and president, respectively, are also members of
Envirodyne's Board. In light of the Glazer's conflict of interest, the
Board formed a special committee consisting of those directors not
affiliated with Zapata to review Zapata's acquisition proposal and report
back to the full board in due course.
Gustafson noted that the new By-Law provisions and the formation
of the special committee would help ensure that proposals such as Zapata's
are evaluated impartially by a committee of unbiased directors able to
consider the interests of all stockholders.
A complete description of the By-Law amendments adopted today
will be included in a Current Report on Form 8-K to be filed by Envirodyne
with the Securities and Exchange Commission.
Exhibit 99.2
FOR IMMEDIATE RELEASE FOR FURTHER INFORMATION:
NASDAQ Small Cap - EDNY MEDIA: INVESTORS
Roy Wiley Stephen M. Schuster
(312) 255-3035 Gordon S. Donovan
(630) 575-2400
ENVIRODYNE INDUSTRIES RESPONDS TO ACQUISITION
PROPOSAL BY ZAPATA CORPORATION
OAK BROOK, IL, May 14 -- Envirodyne Industries, Inc. (NASDAQ Small Cap:
EDYN) announced today that it received a proposal from Zapata Corporation
to acquire it. Pursuant to the proposal, Envirodyne would receive $4 in
cash per share and shares of Zapata common stock described by Zapata as
being valued at $4, based on a formula to be negotiated.
Zapata's proposal is subject to a number of significant conditions,
including negotiation of the valuation of Zapata's stock to be offered to
Envirodyne stockholders, refinancing of Envirodyne's outstanding debt and
election of Zapata's three director nominees to Envirodyne's Board.
Edward F. Gustafson, chairman, president and chief executive officer of
Envirodyne, said, "As we have said repeatedly, Envirodyne's Board is
prepared to carefully consider any bona fide proposal to acquire Envirodyne
at a price that is fair to all stockholders, and will carefully review
Zapata's proposal.
"If the independent board concludes that Zapata's proposal is in the best
interest of stockholders, we would obviously proceed with further
discussions with Zapata. But, it makes no sense to begin the process of
negotiating a possible acquisition transaction by turning over control of
Envirodyne to the very person attempting to buy it, as Zapata's offer
requires.
"If Zapata's proposal is a bona fide bid to acquire Envirodyne at a fair
price, Zapata would in fact gain control of Envirodyne and its Board of
Directors at the appropriate time -- after it had negotiated an acceptable
transaction and paid a fair price to all stockholders. But, if the
proposal, which does not obligate Zapata to do anything and does not even
specify how the Zapata shares are to be valued, is merely a cynical attempt
to manipulate the upcoming election, we are confident that our stockholders
will see the proposal for what it really is.
"We continue to believe that the best interests of our stockholders are
served by maintaining an independent Board to negotiate with Zapata or any
other bidder," Gustafson concluded.
