<PAGE> 1
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) July 29, 1997
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Laidlaw Environmental Services, Inc.
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(Exact name of Company as specified in its charter)
Delaware 1-8368 51-0228924
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(State or other (Commission (IRS Employer
jurisdiction File Number) Identification
of incorporation) Number)
1301 Gervais Street, Suite 300, Columbia, South Carolina 29201
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(Address of principal executive offices) (Zip Code)
Company's telephone number, including area code: (803) 933-4200
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ITEM 5. OTHER EVENTS
Description of Common Stock
General. Pursuant to the Restated Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), of Laidlaw Environmental
Services, Inc. (the "Company"), the authorized capital stock of the Company
consists of 350,000,000 shares of common stock, par value $1.00 per share (the
"Common Stock") and 1,000,000 shares of preferred stock, par value $1.00 per
share. As of July 9, 1997, 180,375,811 shares of Common Stock and no shares of
preferred stock were issued and outstanding.
The following description of the Common Stock is a summary, does not
purport to be complete or to give effect to applicable statutory or common law
and is subject in all respects to the applicable provisions of law, the
Certificate of Incorporation and the Amended and Restated Bylaws of the Company
(the "Bylaws") and the information herein is qualified in its entirety by this
reference.
The holders of a majority of the issued and outstanding Common Stock
constitute a quorum at any meeting of the stockholders and the affirmative vote
of a majority of the shares present is required for stockholder approval,
except for certain proposals to amend the Certificate of Incorporation which
require the affirmative vote of the holders of a majority of all outstanding
Common Stock for approval. Other amendments to the Certificate of Incorporation
concerning (a) special meetings of stockholders, (b) amendments to the Bylaws,
(c) certain provisions relating to the Board of Directors and (d) certain
business transactions, when not approved by a majority of the Board of
Directors, require the affirmative vote of 75% of all outstanding Common Stock
for approval. Removal of any director or of the entire Board of Directors may
be effected only for cause and only at a meeting of the stockholders called for
that purpose by the affirmative vote of the holders of 75% or more of the
shares of the Company entitled to vote.
The Company's Board of Directors is divided into three classes, each of
which serves for a term of three years.
Holders of Common Stock are entitled to one vote per share in the election
of directors and on all other matters on which the stockholders are entitled or
permitted to vote. Holders of Common Stock are not entitled to cumulative
voting rights. Therefore, holders of a majority of the shares voting for the
election of directors can elect all the directors to be elected at a meeting.
Subject to the terms of any outstanding series of preferred stock, the holders
of Common Stock
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are entitled to dividends in such amounts and at such times as may be declared
by the Company's Board of Directors out of funds legally available therefor. On
liquidation or dissolution, holders of Common Stock are entitled to share
ratably in all net assets available for distribution to stockholders after
payment of any liquidation preferences to holders of preferred stock. Holders
of Common Stock have no redemption, conversion or preemptive rights.
Special Provisions of the Certificate of Incorporation and Delaware Law.
The provisions of the Certificate of Incorporation and the Bylaws summarized in
the succeeding paragraphs may be deemed to have an anti-takeover effect or may
delay, defer or prevent a tender offer or takeover attempt that a stockholder
might consider in such stockholder's best interest, including those attempts
that might result in a premium over the market price for the shares held by a
stockholder.
Pursuant to the Certificate of Incorporation, the Board of Directors may
by resolution establish one or more series of preferred stock, having such
number of shares, designation, preferences and relative, participating,
optional or other special rights as may be fixed by the Board of Directors
without any further stockholder approval. Such rights, preferences, privileges
and limitations as may be established could have the effect of impeding or
discouraging the acquisition of control of the Company.
The Bylaws provide that stockholders' nominations for the Board of
Directors must be timely received by the Company and must comply with specified
form and content requirements. The Bylaws also provide that special meetings of
stockholders may be called only by particular members of the Board of Directors
or the President of the Company.
Limitation of Director Liability. Section 102(b)(7) of the Delaware
General Corporation Law ("DGCL") authorizes a corporation to limit or to
eliminate the personal liability of directors to the corporation or its
stockholders for monetary damages for breach of directors' fiduciary duty of
care, provided that such provision does not limit or eliminate the liability of
a director for (i) any breach of the director's duty of loyalty to the Company
or its stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) unlawful payments
of dividends or unlawful stock repurchases or redemptions as provided in
Section 174 of the DGCL or (iv) any transaction from which the director derived
an improper personal benefit. Although Section 102(b)(7) does not change
directors' duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or rescission. The Certificate of
Incorporation limits the liability of directors to the Company or its
stockholders to the fullest extent permitted by Section 102(b)(7).
Indemnification. To the maximum extent permitted by law, the Bylaws
provide for mandatory indemnification of current and former directors,
officers, employees, agents and fiduciaries of the Company or of any other
corporation, partnership, joint
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venture, trust, employee benefit plan or other enterprise which such
indemnified persons is or was serving at the request of the Company (each, an
"Indemnitee") against all expenses, liabilities and losses to which they may
become subject or which they may incur as a result of being or having been a
director, officer, employee or agent of the Company or of such other
enterprise. In addition, the Company must advance amounts to an Indemnitee for
reasonable expenses incurred by or on behalf of him in connection with
indemnifiable claims.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions, it is the understanding of the Company that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Delaware Anti-Takeover Law. Section 203 of the DGCL generally provides
that a stockholder acquiring more than 15% of the outstanding voting stock of a
corporation subject to the statute (an "Interested Stockholder") but less than
85% of such stock may not engage in certain Business Combinations (as defined
in Section 203) with the corporation for a period of three years after the time
that the stockholder became an Interested Stockholder unless (i) prior to such
time, the corporation's board of directors approved either the Business
Combination or the transaction in which the stockholder became an Interested
Stockholder or (ii) at or subsequent to such time, the Business Combination is
approved by the corporation's board of directors and authorized at a
stockholders' meeting by a vote of at least two-thirds of the corporation's
outstanding voting stock not owned by the Interested Stockholder. Under Section
203, these restrictions will not apply to certain Business Combinations
proposed by an Interested Stockholder following the earlier of the announcement
or notification of one of certain extraordinary transactions involving the
corporation and a person who was not an Interested Stockholder during the
previous three years or who became an Interested Stockholder with the approval
of the corporation's board of directors, if such extraordinary transaction is
approved or not opposed by a majority of the directors then in office who were
directors prior to such person becoming an Interested Stockholder during the
previous three years or were recommended for election or elected to succeed
such directors by a majority of such directors.
Section 203 defines the term Business Combination to encompass a wide
variety of transactions with or caused by an Interested Stockholder, including
transactions in which the Interested Stockholder receives or could receive a
benefit on other than a pro rata basis with other stockholders, such as
mergers, certain asset sales, certain issuances of additional shares to the
Interested Stockholder, transactions with the
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corporation which increase the proportionate interest in the corporation
directly or indirectly owned by the Interested Stockholder or transactions in
which the Interested Stockholder receives certain other benefits.
The provisions of Section 203, coupled with the Board of Director's
authority to issue preferred stock without further stockholder action, could
delay or frustrate the removal of incumbent directors or a change in control of
the Company. The provisions also could discourage, impede or prevent a merger,
tender offer or proxy contest, even if such event would be favorable to the
interests of stockholders. The Company's stockholders, by adopting an amendment
to the Certificate of Incorporation, may elect not to be governed by Section
203 effective 12 months after such adoption. Neither the Certificate of
Incorporation nor the Bylaws exclude the Company from the restrictions imposed
by Section 203.
Interested Stockholder Transactions. Pursuant to the Certificate of
Incorporation, unless certain business combinations with an "Interested
Stockholder" have been approved by a majority of the entire Board of Directors,
such business combinations shall require the affirmative vote of the holders of
at least 75% of the outstanding shares of capital stock of the Company entitled
to vote (the "Voting Shares"). An Interested Stockholder is defined in the
Certificate of Incorporation to be any person who is (i) the beneficial owner,
directly or indirectly, of more than 20% of the Voting Shares or (ii) an
affiliate of the Company who at any time within the previous two years was the
beneficial owner, directly or indirectly, of not less than 20% of the then
outstanding Voting Shares or (iii) an assignee of shares of the Company's
capital stock that were at any time within the previous two years beneficially
owned, directly or indirectly, by an Interested Stockholder, if the assignment
occurred in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act. The types of
business combinations as to which these provisions of the Certificate of
Incorporation relate include: (i) mergers or consolidations of the Company or
any of its subsidiaries with or into an Interested Stockholder or any other
corporation which, after the merger or consolidation, would be an affiliate of
an Interested Stockholder; (ii) any sale, lease or other disposition of assets
of the Company or any of its subsidiaries having an aggregate fair market
value of $5,000,000 or more to an Interested Stockholder or an affiliate
thereof; (iii) the issuance or transfer of securities of the Company having an
aggregate fair market value of $5,000,000 or more to an Interested Stockholder
or an affiliate thereof; (iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Company or (v) any reclassification of
securities or recapitalization of the Company or any merger or consolidation
of the Company with any of its subsidiaries or any similar transaction that has
the effect of increasing the proportionate share of the outstanding shares of
any class of equity or
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convertible securities of the Company or any of its subsidiaries which is owned
by an Interested Stockholder or an affiliate thereof.
Common Stock Purchase Rights. Each share of Common Stock outstanding
includes one common stock purchase right (a "Right") which is non-detachable
and non-exercisable until certain defined events occur, including certain
tender offers or exchange offers or the acquisition by a person or group of
affiliated or associated persons of 15% of the Company's Common Stock. Upon the
occurrence of certain defined events, the Right entitles the holder to purchase
additional stock of the Company or stock of an acquiring company at a 50%
discount. The Rights expire on June 30, 1999 unless earlier redeemed by the
Company at a price of $.01 per Right.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
None
(b) Exhibits
See Exhibit Index.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LAIDLAW ENVIRONMENTAL SERVICES, INC.
Date: July 25, 1997 By: /s/ Kenneth W. Winger
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Kenneth W. Winger, President
and Chief Executive Officer
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EXHIBIT INDEX
Exhibit
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4(i) Restated Certificate of Incorporation of the Company, filed as Exhibit
3(a) to the Company's Form 10-Q for the quarter ended May 31, 1997, is
incorporated herein by reference.
4(ii) Amended and Restated Bylaws of the Company.
4(iii) Rights Agreement, dated as of June 14, 1989 between Rollins
Environmental Services, Inc. and Registrar and Transfer Company, as
Rights Agent, as filed as an Exhibit to Form 8-K filed by the Company on
June 13, 1995, is incorporated herein by reference.
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BY-LAWS
OF
LAIDLAW ENVIRONMENTAL SERVICES, INC.
ARTICLE I
The Corporation
Section 1.1 Name. The title of this Corporation is Laidlaw Environmental
Services, Inc.
Section 1.2 Office. The registered office of this Corporation shall be
located at 1209 Orange Street, Wilmington, Delaware, or at such other place as
the Board of Directors may designate in accordance with Section 133 of the
Delaware Corporation Law.
Section 1.3 Seal. The corporate seal of the Corporation shall have
inscribed thereon the name of the Corporation and the year of its creation
(1978) and the words "Incorporated Delaware".
(1)
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ARTICLE II
Stockholders
Section 2.1 Annual Meeting. The annual meeting of stockholders shall be
held at such place within or without the State of Delaware as the Board of
Directors from time to time determine.
A majority of the amount of the stock issued and outstanding and entitled
to vote shall constitute a quorum for the transaction of all business, except
as otherwise provided by law, the charter of the Corporation or these by-laws.
Each stockholder shall be entitled to one vote, either in person or by proxy,
for each share of stock standing registered in his or her name on the books of
the Corporation on the record date selected by the Board of Directors in
accordance with these by-laws, unless more or less than one vote per share is,
by the terms of the instrument creating special or preferred shares, conferred
upon the holders thereof.
Notice of the annual meeting shall be mailed by the Secretary to each
stockholder at his or her last known post office address no less than ten (10)
days and no more than fifty (50) days prior thereto.
Section 2.2 Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board of
Directors, the Chairman of the Executive Committee, if any, or the President
and not by any other person.
Section 2.3 Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise provided by law, the written notice of any meeting
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. If
mailed, such notice shall be deemed to be given when deposited in the mail,
postage prepaid, directed to the stockholder at his address as it appears on
the records of the Corporation.
Section 2.4 Adjournments. Any meeting of the stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting. 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
(2)
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notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 2.5 Quorum. At each meeting of stockholders, except where
otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a quorum. In the
absence of a quorum, the stockholders so present may, by majority vote, adjourn
the meeting from time to time in the manner provided in Section 2.4 of these
by-laws until a quorum shall attend.
Section 2.6 Organization. Meetings of stockholders shall be presided over
by the Chairman of the Board, if any, or in his absence by the Chairman of the
Executive Committee, if any, or in his absence by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.7 Voting: Proxies. Unless otherwise provided in the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the 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 stockholder may revoke
any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or another duly
executed proxy bearing a later date with the Secretary of the Corporation.
Voting at meetings of stockholders need not be by written ballot and need not
be conducted by inspectors unless the holders of a majority of the outstanding
shares of all classes of stock entitled to vote thereon present in person or by
proxy at such meeting shall so determine. At all meetings of stockholders for
the election of directors a plurality of the votes cast shall be sufficient to
elect. All other elections and questions shall, unless otherwise provided by
law or by the certificate of incorporation or these by-laws, be decided by the
vote of the holders of a majority of the outstanding shares of stock entitled
to vote thereon present in person or by proxy at the meeting, provided that
(except as otherwise required by law or by the certificate of incorporation or
these by-laws) the Board of Directors may require a larger vote upon any
election or question.
Section 2.8 Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive
(3)
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payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion of
exchange or 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) nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action. If no record date is
fixed: (1) the record date for determining 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, in notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held; and (2) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. 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 2.9 List of Stockholders Entitled To Vote. The Secretary 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 who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 2.10 Action by Consent of Stockholders. No action to be taken or
which may be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action is
specifically denied.
(4)
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ARTICLE III
Board of Directors
Section 3.1 Number: Qualifications. The Board of Directors shall consist
of up to ten (10) members. The directors shall be divided into three (3)
classes. The first class (Class I) shall consist of four (4) directors and the
term of office of such class shall expire at the annual meeting of the
stockholders in 1998. The second class (Class II) shall consist of three (3)
directors and the term of office of such class shall expire at the annual
meeting of stockholders in 1999. The third class (Class III) shall consist of
three (3) directors and the term of office of such class shall expire at the
annual meeting of the stockholders in 2000. At each annual election commencing
at the next annual meeting of the stockholders in 1998, the successors of the
class of directors whose term expires at that time shall be elected to hold
office for the term of three (3) years to succeed those whose term expires, so
that the term of office of one class of directors shall expire in each year.
Each director shall hold office for the term for which he is elected or
appointed or until his successor shall be elected and qualified, or until his
death or until he shall resign. Directors need not be stockholders nor
residents of the State of Delaware.
Section 3.2 Election; Resignation; Removal; Vacancies. At each annual
meeting of stockholders, the stockholders shall elect directors to replace
those directors whose terms then expire. Any director may resign at any time
upon written notice to the Corporation. Stockholders may remove directors only
for cause. Any vacancy occurring in the Board of Directors for any cause may
be filled only be the Board of Directors, acting by vote of a majority of the
directors then in office, although less than quorum. Each director so elected
shall hold office until the expiration of the term of office of the director
whom he has replaced.
Section 3.3 Notice Of Nomination Of Directors. Nominations for the
election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Such nominations
shall be made by notice in writing, delivered or mailed by first class United
States mail, postage prepaid, to the Secretary of the Corporation not less than
fourteen (14) days nor more than fifty (50) days prior to any meeting of the
stockholders called for the election of directors; provided, however, that if
less than twenty-one (21) days' notice of the meeting is given to stockholders,
such written notice shall be delivered or mailed, as prescribed, to the
Secretary of the Corporation not later than the close of the seventh day
following the day one which notice of the meeting was mailed to stockholders.
Notice of nominations which are proposed by the Board of Directors shall be
given by the Chairman on behalf of the Board. Each such notice shall set forth
(1), age, business address and, if known, residence address of each nominee
proposed in such notice, (2) the principal occupation or employment of each
such nominee and (3) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
(5)
<PAGE> 6
The Chairman of the meeting may, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 3.4 Non-Discrimination Statement. Consistent with the
Corporation's equal employment opportunity policy, nominations for the election
of directors shall be made by the Board of Directors and accepted from
stockholders in a manner consistent with these by-laws and without regard to
the nominee's race, color, ethnicity, religion, sex, age, national origin,
veteran status, handicap or disability.
Section 3.5 Regular Meetings. Regular meetings of the Board of Directors
may be held at such places within or without the State of Delaware and at such
times as the Board of Directors may from time to time determine, and if so
determined notices thereof need not be given.
Section 3.6 Special Meetings. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Delaware
whenever called by the President, the Chairman of the Board of Directors or by
the Chairman of the Executive Committee, if any. Reasonable notice thereof
shall be given by the person calling the meeting, not later than the second day
before the date of the special meeting.
Section 3.7 Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board, may participate in any
meeting of such Board or committee by means of 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
by-law shall constitute presence in person at such meeting.
Section 3.8 Quorum: Vote Required For Action: Informal Action. At all
meetings of the Board of Directors a majority of the whole Board shall
constitute a quorum for the transaction of business. Except in cases in which
the certificate of incorporation or these by-laws otherwise provide, the vote
of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. Unless otherwise
restricted by the certificate of incorporation or these 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 members of the
Board or such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of the proceedings of the
Board or committee.
Section 3.9 Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Chairman of the Executive Committee, if any or in his absence by the President,
or in their
(6)
<PAGE> 7
absence by a chairman chosen at the meeting. The Secretary shall act as a
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 3.10 Compensation of Directors. The directors and members of
standing committees shall receive such fees or salaries as fixed by resolution
of the Board of Directors and in addition will receive expenses in connection
with attendance or participation in each regular or special meeting.
(7)
<PAGE> 8
ARTICLE IV
Committees
Section 4.1 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 one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of the
committee, the member or members 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 place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
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, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have power or authority in reference to
amending the certificate of incorporation of the Corporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange or all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of dissolution, or amending these by-laws. The
Board of Directors may, at the annual organization meeting thereof, designate
and elect an Executive Committee consisting of not more than four (4) members,
all of whom shall be members of the Board of Directors. The Executive
Committee, if any, shall have and may exercise all of the powers and authority
of the Board of Directors in the management of business and affairs of the
Corporation to the fullest extent permitted by law (as presently allowed under
Section 141 (c) to the Delaware General Corporation Law as revised effective
July 1, 1996, and as may be allowed in the future pursuant to amendments or
revisions to applicable law).
Section 4.2 Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter, repeal rules
for the conduct of its business. In the absence of such rules each committee
shall conduct its business in the same manner as the Board of Directors
conducts its business pursuant to Article III of these by-laws.
(8)
<PAGE> 9
ARTICLE V
Officers
Section 5.1 Executive Officers. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a Chairman of the Board,
President, Chief Executive Officer, Executive Vice President, Chief Operating
Officer, Senior Vice President of Finance, Chief Financial Officer, Secretary
and General Counsel. The Board of Directors may also choose additional Vice
Presidents, and one or more Assistant Secretaries and Assistant Financial
Officers. Any number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws otherwise provide.
Section 5.2 Election of Officers. The Board of Directors at its first
meeting after each annual meeting of stockholders shall choose a Chairman of
the Board, Chief Executive Officer, President, Executive Vice President, Chief
Operating Officer, Senior Vice President of Finance, Chief Financial Officer,
Secretary, and General Counsel.
Section 5.3 Other Officers. The Board of Directors may appoint such other
officers and agents as it shall deem necessary 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.
Section 5.4 Term; Removal; Vacancies. The officers of the Corporation
shall hold office until their successors are chosen and qualify. Any officer
elected or appointed 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.
Section 5.5 Duties of the Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board. He shall submit a complete report
of the operations and condition of the Corporation for the year to the
stockholders at their annual meeting.
Section 5.6 President. The President shall be the Chief Executive Officer
of the Corporation, shall have general and active management 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 have the general supervision and
direction of all the other officers of the Corporation; he shall submit a
complete report of the operations and condition of the Corporation for the year
to the Chairman and to the Directors at their regular meetings, and from time
to time shall report to the Directors all matters which the interest of the
Corporation may require to be brought to their notice. He shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and
(9)
<PAGE> 10
executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. He shall have the general powers and duties usually vested in
the office of a President of a corporation.
Section 5.7 Executive Vice President. In the absence of the President or
in the event of his inability or refusal to act, the Executive Vice President
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. The
Executive Vice President shall perform such other duties and have such other
powers as the Board of Directors or the President may from time to time
prescribe.
Section 5.8 Chief Operating Officer. The Chief Operating Officer shall at
the direction of the President supervise and direct the operations of the
Corporation. He shall perform such other duties as may be assigned to him by
the Board of Directors or the President.
Section 5.9 Senior Vice President of Finance. The Senior Vice President of
Finance shall be the Chief Accounting and Chief Financial Officer of the
Corporation and shall be responsible to the Board of Directors and the
President for all financial control and internal audit of the Corporation and
its subsidiaries. He shall perform such other duties as may be assigned to him
by the Board of Directors or the President.
Section 5.10 Vice Presidents. The Vice Presidents elected or appointed by
the Board of Directors shall perform such duties and exercise such powers as
may be assigned to them from time to time by the Board of Directors, the
Executive Committee, if any, or the President.
Section 5.11 Chief Financial Officer. The Chief Financial Officer 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 money 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. He shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, the President or the Executive
Committee, if any, taking proper vouchers for such disbursements, and shall
render to the President, the Board of Directors, and the Executive Committee,
if any, whenever they may require it, an account of all his transactions as
Chief Financial Officer and of the financial condition of the Corporation.
Section 5.12 Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders
(10)
<PAGE> 11
and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Executive Committee,
if any, or the President, under whose supervision he shall be. He shall have
custody of the corporate seal of the Corporation and he, or an Assistant
Secretary, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by his signature or by the signature
of 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. He shall keep the accounts of stock registered and
transferred in such form and manner and under such regulations as the Board of
Directors may prescribe.
Section 5.13 General Counsel. The General Counsel shall be the legal
adviser of the Corporation and shall perform such services as the Chairman of
the Board, President, Board of Directors or the Executive Committee, if any,
may require.
(11)
<PAGE> 12
ARTICLE VI
Stock
Section 6.1 Certificates. Every holder of stock shall be entitled to have
a certificate signed by or in the name of the Corporation by the Chairman of
the Board of Directors or the President of the Corporation, certifying the
number of shares owned by him in the Corporation. Any of or all the signatures
on the certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon 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 6.2 Lost, Stolen Or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnity it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
(12)
<PAGE> 13
ARTICLE VII
Indemnification
Section 7.1 General. The Corporation shall indemnify, and advance
Expenses (as hereinafter defined) to, Indemnitee (as hereinafter defined) to
the fullest extent permitted by applicable law in effect on July 23, 1986, and
to such greater extent as applicable law may thereafter from time to time
permit. The rights of Indemnitee provided under the preceding sentence shall
include, but shall not be limited to, the rights set forth in the other
Sections of this Article.
Section 7.2 Proceedings Other Than Proceedings By Or In The Right Of The
Corporation. Indemnitee shall be entitled to the indemnification rights
provided in this Section 7.2 if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to any
threatened, pending, or completed Proceeding (as hereinafter defined), other
than a Proceeding by or in the right of the Corporation. Pursuant to this
Section 7.2, Indemnitee shall be indemnified against Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, 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 Proceeding, had no reasonable
cause to believe his conduct was unlawful.
Section 7.3 Proceedings By Or In The Right Of The Corporation. Indemnitee
shall be entitled to the indemnification rights provided in this Section 7.3
to the fullest extent permitted by law if, by reason of his Corporate Status,
he is, or is threatened to be made, a party to any threatened, pending or
completed Proceeding brought by or in the right of the Corporation to procure a
judgment in its favor. Pursuant to this Section 7.3, Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such Proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
Corporation.
Section 7.4 Indemnification For Expenses Of A Party Who Is Wholly Or
Partly Successful. Notwithstanding any other provision of this Article, to the
extent that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
Corporation shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by
(13)
<PAGE> 14
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such claim, issue or matter.
Section 7.5 Indemnification For Expenses Of A Witness. Notwithstanding
any other provision of this Article, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
Section 7.6 Advancement of Expenses. The Corporation shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within twenty (20) days after the receipt by the Corporation of
a statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
proceeding. Such statement or statements shall reasonably evidence the
Expenses incurred by Indemnitee and shall include or be preceded or accompanied
by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses.
Section 7.7 Procedure For Determination Of Entitlement To Indemnification.
(a) To obtain indemnification under this Article, Indemnitee
shall submit to the Corporation a written request, including therein
or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to
indemnification. The determination of Indemnitee's entitlement to
indemnification shall be made not later than sixty (60) days after
receipt by the Corporation of the written request for
indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board
of Directors in writing that Indemnitee has requested
indemnification.
(b) Indemnitee's entitlement to indemnification under any of
Sections 7.2, 7.3 or 7.4 of this Article shall be determined in the
specific case: (i) by the Board of Directors by a majority vote of a
quorum of the Board consisting of Disinterested Directors (as
hereinafter defined); or (ii) by Independent Counsel (as hereinafter
defined), in a written opinion, if (A) a Change of Control (as
hereinafter defined) shall have occurred and Indemnitee so requests,
or (B) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs; or (iii) by the
stockholders of the Corporation; or (iv) as provided in Section 7.8
of this Article.
(c) In the event the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 7.7 (b) of
this Article, the
(14)
<PAGE> 15
Independent Counsel shall be selected as provided in this
Section 7.7 (c). If a Change of Control shall not have
occurred, the Independent Counsel shall be selected by the Board of
Directors, and the Corporation shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel
so selected. If a Change of Control shall have occurred, and if so
requested by Indemnitee in his written request for indemnification,
the Independent Counsel shall be selected by Indemnitee, and
Indemnitee shall give written notice to the Corporation advising it of
the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Corporation, as the case may be, may, within seven
(7) days after such written notice of selection shall have been given,
deliver to the Corporation or to Indemnitee, as the case may be, a
written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in Section
7.13 of this Article, and the objection shall set forth with
particularity the factual basis of such assertion. If such written
objection is made, the Independent Counsel so selected shall be
disqualified from acting as such. If, within twenty (20) days after
submission by Indemnitee of a written request for indemnification
pursuant to Section 7.7 (a) hereof, no Independent Counsel shall have
been selected, or if selected shall have been objected to, in
accordance with this Section 7.7 (c), either the Corporation or
Indemnitee may petition the Court of Chancery of the State of Delaware
for the appointment as Independent Counsel of a person selected by the
Court or by such other person as the Court shall designate, and the
person so appointed shall act as Independent Counsel under Section 7.7
(b) hereof. The Corporation shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel
in acting pursuant to Section 7.7 (b) hereof, and the Corporation
shall pay all reasonable fees and expenses incident to the procedures
of this Section 7.7 (c), regardless of the manner in which such
Independent Counsel was selected or appointed.
Section 7.8 Presumptions and Effect Of Certain Proceeding. If a Change of
Control shall have occurred, Indemnitee shall be presumed (except as otherwise
expressly provided in this Article) to be entitled to indemnification under
this Article upon submission of a request for indemnification in accordance
with Section 7.7 (a) of this Article, and thereafter the Corporation shall have
the burden of proof to overcome that presumption in reaching a determination
contrary to that presumption. Whether or not a Change of Control shall have
occurred, if the person or persons empowered under Section 7.7 of this Article
to determine entitlement to indemnification shall not have made a determination
within sixty (60) days after the receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall
be deemed to have been made and Indemnitee shall be entitled to such
indemnification unless (i) Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification, or (ii) such
indemnification is prohibited
(15)
<PAGE> 16
by law. The termination of any Proceeding described in any of Sections
7.2, 7.3, or 7.4 of this Article, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Article) of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee 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 or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was unlawful.
Section 7.9 Remedies of Indemnitee
(a) In the event that (i) a determination is made pursuant to
Section 7.7 of this Article that Indemnitee is not entitled to
indemnification under this Article, (ii) advancement of Expenses is
not timely made pursuant to Section 7.6 of this Article, or (iii)
payment of indemnification is not made within five (5) days after a
determination of entitlement to indemnification has been made or
deemed to have been made pursuant to Sections 7.7 or 7.8 of this
Article, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of
competent jurisdiction, of his entitlement to such indemnification
or advancement of Expenses. Alternately, Indemnitee, at his option,
may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration
Association. The Corporation shall not oppose Indemnitee's right to
seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 7.7 of this Article that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 7.9 shall be conducted in all
respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, in any
judicial proceeding or arbitration commenced pursuant to this
Section 7.9 the Corporation shall have the burden of proving that
Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have
been made pursuant to sections 7.7 or 7.8 of this Article that
Indemnitee is entitled to indemnification, the Corporation shall be
bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 7.9, unless (i)
Indemnitee misrepresented or failed to disclose a material fact in
making the request for indemnification, or (ii) such indemnification
is prohibited by law.
(d) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this
Section 7.9 that the procedures
(16)
<PAGE> 17
and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court or before any such
arbitrator that the Corporation is bound by all the provisions of
this Article.
(e) In the event that Indemnitee, pursuant to this Section 7.9,
seeks a judicial adjudication of, or an award in arbitration to
enforce his rights under, or to recover damages for breach of, this
Article, Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against,
any and all expenses (of the types described in the definition of
Expenses in Section 7.13 of this Article) actually and reasonably
incurred by him in such judicial adjudication or arbitration, but
only if he prevails therein. If it shall be determined in said
judicial adjudication or arbitration that Indemnitee is entitled to
receive part but not all of the indemnification or advancement of
Expenses sought, the expenses incurred by Indemnitee in connection
with such judicial adjudication or arbitration shall be
appropriately prorated.
Section 7.10. Non-Exclusivity And Survival Of Rights. The rights of
indemnification and to receive advancement of Expenses as provided by this
Article shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Certificate of
Incorporation, the by-laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. Notwithstanding any amendment,
alteration or repeal of any provision of this Article, Indemnitee shall, unless
otherwise prohibited by law, have the rights of indemnification and to receive
advancement of Expenses as provided by this Article in respect of any action
taken or omitted by Indemnitee in his Corporate Status and in respect of any
claim asserted in respect thereof at any time when such provision of this
Article was in effect. The provisions of this Article shall continue as to an
Indemnitee whose Corporate Status has ceased and shall inure to the benefit of
his heirs, executors and administrators.
Section 7.11 Severability. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each
portion of any Section of this Article containing any such provision
held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Article (including, without limitation, each portion of any Section
of this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
(17)
<PAGE> 18
Section 7.12 Certain Persons Not Entitled To Indemnification Or
Advancement Of Expenses. Notwithstanding any other provision of this Article,
no person shall be entitled to indemnification or advancement of Expenses under
this Article with respect to any Proceeding, or any claim therein, brought or
made by him against the Corporation.
Section 7.13 Definitions. For purposes of this Article:
(a) "Change in Control" means a change in control of the Corporation of
a nature that would be required to be reported in response to
Item 5 (f) of Schedule 14A of Regulation 14A (or in response
to any similar item on any similar schedule or form) promulgated
under the Securities Exchange Act of 1934 (the "Act"), whether or
not the Corporation is then subject to such reporting requirement;
provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Act) is or
becomes the "beneficial owner") (as defined in Rule 13d-3 under the
Act), directly or indirectly, or securities of the Corporation
representing 20% or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval
of at least two-thirds of the members of the Board of Directors in
office immediately prior to such person attaining such percentage
interest; (ii) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of Directors
in office immediately prior to such transaction or event constitute
less than a majority of the Board of Directors thereafter; or (iii)
during any period of two (2) consecutive years, individuals who at
the beginning of such period constituted the Board of Directors
(including for this purpose any new director whose election or
nomination for election by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period)
cease for any reason to constitute at least a majority of the Board
of Directors.
(b) "Corporate Status" describes the status of a person who is or
was a director, officer, employee, agent or fiduciary of the
Corporation or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person
is or was serving at the request of the Corporation.
(c) "Disinterested Director" means a director of the Corporation
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(18)
<PAGE> 19
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, or being or preparing to be a witness in a
Proceeding.
(e) "Indemnitee" includes any person who is, or is threatened to
be made, a witness in or a party to any Proceeding as described in
Sections 7.2, 7.3 or 7.4 of this Article by reason of his Corporate
Status.
(f) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five (5) years has been, retained to
represent: (i) the Corporation or Indemnitee in any matter material
to either such party, or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Corporation or Indemnitee in an
action to determine Indemnitee's rights under this Article.
(g) "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, except one initiated by
an Indemnitee pursuant to Section 7.9 of this Article to enforce his
rights under this Article.
Section 7.14. Miscellaneous. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
(19)
<PAGE> 20
ARTICLE VIII
Miscellaneous
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 8.2 Waiver of Notice Of Meetings Of Stockholders, Directors, and
Committees. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 8.3 Interested Directors: Quorum. 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 or 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 the committee in good
faith authorizes the contract or transaction by the affirmative vote 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. Common or interested directors may be counted in
determining the presence of a quorum at the meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
Section 8.4 Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
(20)
<PAGE> 21
Section 8.5 Amendment Of By-Laws. The Board of Directors of the
Corporation is expressly authorized to adopt, amend or repeal the by-laws of
the Corporation by a vote of a majority of the entire Board. The stockholders
may make, alter or repeal any by-law whether or not adopted by them, provided
however, that any such additional by-laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of 75% or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class), unless such
additional by-laws, alterations or repeal shall have been recommended to the
stockholders for adoption by a majority of the Board of Directors, in which
even such additional by-laws, alterations or repeal may be adopted by the
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class).
(21)
