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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
STERLING SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 75-1873956
(State of Incorporation or Organization) (IRS Employer Identification No.)
300 CRESCENT COURT, SUITE 1200 75201
DALLAS, TEXAS (Zip Code)
(Address of Principal Executive Offices)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to Section securities pursuant to Section
12(b) of the Exchange Act and is 12(g) of the Exchange Act and is
effective pursuant to General effective pursuant to General
Instruction A.(c), please check Instruction A.(d), please check
the following box. [X] the following box. [ ]
Securities Act registration statement file number
to which this form relates:
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, par value $.10 per share New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
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INTRODUCTORY NOTE
The information set forth herein supersedes in its entirety the information
set forth in the Company's Registration Statement on Form 8-A, filed with the
Securities and Exchange Commission on March 7, 1990. The information set forth
herein is presented as of the date hereof, and may be modified or superseded by
information set forth in documents or reports filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, after the date hereof.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
The Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), of Sterling Software, Inc., a Delaware corporation (the
"Company"), provides that the authorized capital stock of the Company consists
of 125,000,000 shares of common stock, par value $.10 per share ("Common
Stock"), and 10,000,000 shares of preferred stock, par value $.10 per share
("Preferred Stock").
COMMON STOCK
The Common Stock is listed on the New York Stock Exchange under the symbol
"SSW".
The holders of Common Stock are entitled to one vote per share owned of
record on all matters voted upon by stockholders. Subject to preferential
rights that may be applicable to any Preferred Stock outstanding, holders of
Common Stock are entitled to receive dividends if, as and when declared by the
Board of Directors of the Company (the "Board of Directors") out of funds
legally available therefor. In the event of a liquidation, dissolution or
winding-up of the Company, holders of Common Stock are entitled to share equally
and ratably in the assets of the Company, if any, remaining after the payment of
all liabilities of the Company and the liquidation preferences of any
outstanding Preferred Stock. Holders of the Common Stock have no preemptive
rights, cumulative voting rights or rights to convert their Common Stock into
any other securities, and there are no redemption or sinking fund provisions
with respect to the Common Stock.
PREFERRED STOCK
The Board of Directors has the authority to issue the authorized shares of
Preferred Stock in one or more series and to fix the designations, relative
powers, preferences, rights, qualifications, limitations and restrictions of all
shares of each such series, including without limitation dividend rates,
conversion rights, voting rights, redemption and sinking fund provisions,
liquidation preferences and the number of shares constituting each such series,
without any further vote or action by the stockholders. The issuance of
Preferred Stock could decrease the amount of earnings and assets available for
distribution to holders of Common Stock or adversely affect the rights and
powers, including voting rights, of the holders of Common Stock. The issuance
of Preferred Stock also could have the effect of delaying, deterring or
preventing a change in control of the Company without further action by the
stockholders.
RIGHTS AGREEMENT
Pursuant to the Rights Agreement dated December 18, 1996, between the
Company and BankBoston, N.A., as amended (the "Rights Agreement"), 1,250,000
shares of Preferred Stock, designated as Series A Junior Participating Preferred
Stock ("Junior Preferred Shares"), are reserved for issuance. One right
issuable pursuant to the Rights Agreement (a "Right") is attached to each issued
and outstanding share of Common Stock. Each Right nominally entitles the holder
to purchase 1/100th of a Junior Preferred Share (structured so as to be
substantially the equivalent of a share of Common Stock) at a price (the
"Purchase Price") of $100.00 per 1/100th of a Junior Preferred Share (subject to
adjustment).
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In general, the Rights will not become exercisable, or transferable apart
from the shares of Common Stock, unless a person or group of affiliated or
associated persons becomes the beneficial owner of, or commences a tender offer
that would result in beneficial ownership of, 15% or more of the outstanding
shares of Common Stock (any such person or group of persons being referred to in
the Rights Agreement as an "Acquiring Person"). Thereafter, under certain
circumstances, each Right (other than any Rights that are or were beneficially
owned by such Acquiring Person, which Rights will be void) could become
exercisable to purchase at the Purchase Price a number of shares of Common Stock
(or, in certain circumstances, the common stock of a company into which the
Company is merged or consolidated or to which the Company sells all or
substantially all of its assets) having a market value equal to two times the
Purchase Price. The Rights will expire on December 31, 2006, unless earlier
redeemed by the Company at a redemption price of $.01 per Right (subject to
adjustment), or otherwise exchanged or amended in accordance with the terms of
the Rights Agreement.
CERTAIN CORPORATE GOVERNANCE MATTERS
The Certificate of Incorporation and the Bylaws, as amended (the "Bylaws"),
of the Company provide that the directors of the Company are to be classified
into three classes, with the directors in each class serving for three-year
terms and until their successors are elected. Any additional person elected to
the Board will be added to a particular class of directors to be determined at
the time of such election. In accordance with the Certificate of Incorporation
and the Bylaws, the number of directors in each class will be identical, or as
nearly as practicable thereto. The Certificate of Incorporation and the Bylaws
provide, in general, that (i) the number of directors of the Company will be
fixed by resolution of the Board, (ii) a majority of directors in office, though
less than a quorum, may fill any vacancy or newly created directorship on the
Board, with any new director to hold office for the remainder of the full term
of the class of directors in which the vacancy occurred or the new directorship
was created and until such director's successor shall have been elected and
qualified, and (iii) stockholder action can be taken only at an annual or
special meetings of stockholders and not by written consent in lieu of a
meeting. The Bylaws require that stockholders desiring to nominate one or more
persons as directors of the Company deliver written notice thereof to the
Secretary of the Company not later than (i) with respect to an election to be
held at an annual meeting, 90 days prior to the anniversary date of the
immediately preceding annual meeting and (ii) with respect to an election to be
held at a special meeting, the seventh day following the date on which notice of
such special meeting is first given to stockholders. The Bylaws require that
any such notice set forth the name and address of the stockholder and the person
or persons to be nominated, a representation that the stockholder is a holder of
record of stock in the Company entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice, a description of all arrangements or undertakings
between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder, such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission and the consent of each nominee to serve as a director of the Company
if so elected. The presiding officer of any such meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure. The Bylaws further require that stockholders desiring to
bring any business before an annual meeting of stockholders deliver written
notice thereof to the Secretary of the Company not less than 60 days prior to
the meeting. However, in the event that less than 67 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be received by the Secretary of the
Company not later than the close of business on the seventh day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made. The Bylaws further require that the notice by the
stockholder set forth a description of the business to be brought before the
meeting and certain information concerning the stockholder proposing such
business, including such stockholder's name and address, the class and number of
shares of the Company's capital stock that are owned beneficially by such
stockholder and any material interest of such stockholder in the business
proposed to be brought before the meeting.
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Under the applicable provisions of Delaware General Corporation Law (the
"DGCL"), the approval of a Delaware corporation's board of directors, in
addition to stockholder approval, is required to adopt any amendment to the
corporation's certificate of incorporation, but a corporation's bylaws may be
amended either by action of its stockholders or, if the corporation's
certificate of incorporation so provides, its board of directors. The
Certificate of Incorporation provides that any change to the provision therein
regarding the number, election and term of directors or the provision therein
permitting the notice provisions for the nomination of directors to be set forth
in the Bylaws must be approved by the holders of 75% of the voting power of all
shares entitled to vote generally in the election of directors, voting together
as a single class.
Under the DGCL, a corporation is prohibited from engaging in any business
combination with a person who, together with his affiliates or associates owns
(or within a three-year period did own) 15% or more of the corporation's voting
stock (an "interested stockholder"), unless (i) prior to the date on which such
person became an interested stockholder, the board of directors approved either
the business combination or the transaction which resulted in the stockholder
becoming an interested stockholder, (ii) the interested stockholder acquired 85%
of the voting stock of the corporation (excluding specified shares) upon
consummation of the transaction, or (iii) on or subsequent to the date on which
such person became an interested stockholder the business combination is
approved by the board of directors of such corporation and authorized by the
affirmative vote (at an annual or special meeting and not by written consent) by
at least 66 2/3% of the outstanding voting shares of such corporation (excluding
shares held by such interested stockholder). A "business combination" includes
(i) mergers, consolidations and sales or other dispositions of 10% or more of
the assets of a corporation to or with an interested stockholder, (ii) certain
transactions resulting in the issuance or transfer to an interested stockholder
of any stock of such corporation or its subsidiaries, and (iii) other
transactions resulting in a disproportionate financial benefit to an interested
stockholder. This "business combination" provision of the DGCL does not apply
to a corporation if the certificate of incorporation or bylaws contains a
provision expressly electing not to be governed by this provision. The
Certificate of Incorporation does not address the business combination provision
of the DGCL. Accordingly, the business combination provision of the DGCL
applies to the Company.
The foregoing provisions of the Certificate of Incorporation and the
Bylaws, the provisions of the Rights Agreement and the business combination
provisions of the DGCL may discourage or make more difficult the acquisition of
control of the Company by means of a tender offer, open market purchase, proxy
contest or otherwise.
* * * * *
The foregoing discussion is not intended to be complete and is qualified in
its entirety by reference to the Certificate of Incorporation, the Bylaws and
the Rights Agreement, copies of which are filed as Exhibits 3.1, 3.2 and 4.1,
respectively, hereto, and to the DGCL.
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ITEM 2. EXHIBITS.
3.1 Certificate of Incorporation, as amended, of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q, dated April 28, 1998)
3.2 Bylaws, as amended, of the Company
4.1 Rights Agreement, dated as of December 18, 1996, between the
Company and BankBoston, N.A., as rights agent (including a
Form of Certificate of Designations of Series A Junior
Participating Preferred Stock as Exhibit A thereto, a Form of
Right Certificate as Exhibit B thereto and a Summary of
Rights to Purchase Preferred Stock as Exhibit C thereto)
(incorporated by reference to Exhibit 1 to the Company's
Current Report on Form 8-K, dated December 18, 1996)
4.2 First Amendment to Rights Agreement, dated as of March 12,
1998, by and between the Company and BankBoston, N.A., as
rights agent (including a Form of Amended and Restated
Certificate of Designations of Series A Junior Participating
Preferred Stock as Exhibit A thereto) (incorporated by
reference to Exhibit A to the Company's Registration
Statement on Form 8-A/A, dated April 3, 1998)
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereto duly authorized.
STERLING SOFTWARE, INC.
Date: May 27, 1998 /s/ Don J. McDermett, Jr.
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Don J. McDermett, Jr.
Senior Vice President and General Counsel
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Index to Exhibits
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3.1 Certificate of Incorporation, as amended, of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q, dated April 28, 1998)
3.2 Bylaws, as amended, of the Company
4.1 Rights Agreement, dated as of December 18, 1996, between the
Company and BankBoston, N.A., as rights agent (including a Form
of Certificate of Designations of Series A Junior Participating
Preferred Stock as Exhibit A thereto, a Form of Right
Certificate as Exhibit B thereto and a Summary of Rights to
Purchase Preferred Stock as Exhibit C thereto) (incorporated by
reference to Exhibit 1 to the Company's Current Report on Form
8-K, dated December 18, 1996)
4.2 First Amendment to Rights Agreement, dated as of March 12, 1998,
by and between the Company and BankBoston, N.A., as rights agent
(including a Form of Amended and Restated Certificate of
Designations of Series A Junior Participating Preferred Stock as
Exhibit A thereto) (incorporated by reference to Exhibit A to
the Company's Registration Statement on Form 8-A/A, dated April
3, 1998)
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EXHIBIT 3.2
RESTATED
BYLAWS
OF
STERLING SOFTWARE, INC.
(ADOPTED AND EFFECTIVE AS OF MARCH 25, 1998)
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TABLE OF CONTENTS
Page
ARTICLE I - OFFICES............................................... 1
Section 1. Registered Office................................ 1
Section 2. Other Offices.................................... 1
ARTICLE II - STOCKHOLDERS......................................... 1
Section 1. Meetings......................................... 1
Section 2. Annual Meeting................................... 1
Section 3. List of Stockholders............................. 2
Section 4. Special Meetings................................. 2
Section 5. Notice........................................... 2
Section 6. Quorum........................................... 2
Section 7. Voting........................................... 3
Section 8. Proxy............................................ 3
ARTICLE III - BOARD OF DIRECTORS.................................. 3
Section 1. Board of Directors............................... 3
Section 2. Number of Directors.............................. 3
Section 3. Vacancies........................................ 4
ARTICLE IV - MEETINGS OF THE BOARD................................ 4
Section 1. Meetings......................................... 4
Section 2. Annual Meeting................................... 5
Section 3. Regular Meetings................................. 5
Section 4. Special Meetings................................. 5
Section 5. Quorum........................................... 5
Section 6. Executive Committee.............................. 5
Section 7. Other Committees................................. 6
Section 8. Action by Consent................................ 6
Section 9. Compensation of Directors........................ 6
ARTICLE V - NOTICE OF MEETINGS.................................... 6
Section 1. Form of Notice................................... 6
Section 2. Waiver........................................... 6
Section 3. Telephone Meetings............................... 6
ARTICLE VI - OFFICERS............................................. 7
Section 1. In General....................................... 7
Section 2. Election......................................... 7
Section 3. Other Officers and Agents........................ 7
Section 4. Salaries......................................... 7
Section 5. Term of Office and Removal....................... 7
Section 6. Chairman of the Board............................ 7
Section 7. Vice Chairman of the Board....................... 7
Section 8. Chief Executive Officer.......................... 7
Section 9. President........................................ 8
Section 10. Vice Presidents.................................. 8
Section 11. Secretary........................................ 8
Section 12. Assistant Secretaries............................ 8
Section 13. Treasurer........................................ 8
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Section 14. Assistant Treasurers............................. 8
Section 15. Controller....................................... 9
Section 16. Bonding.......................................... 9
ARTICLE VII - CERTIFICATES OF SHARES.............................. 9
Section 1. Form of Certificates............................. 9
Section 2. Lost Certificates................................ 9
Section 3. Transfer of Shares............................... 9
Section 4. Registered Stockholders.......................... 9
ARTICLE VIII - GENERAL PROVISIONS................................. 10
Section 1. Dividends........................................ 10
Section 2. Reserves......................................... 10
Section 3. Fiscal Year...................................... 10
Section 4. Seal............................................. 10
Section 5. Annual Statement................................. 10
Section 6. Checks........................................... 10
ATTICLE IX - INDEMNITY............................................ 10
Section 1. Indemnification.................................. 10
Section 2. Indemnification Additional to Other Rights....... 11
ARTICLE X - AMENDMENTS............................................ 11
Section 1. By Stockholders.................................. 11
Section 2. By the Board of Directors........................ 11
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ARTICLE I
OFFICES
Section 1. Registered Office. The initial registered office of the
corporation shall be at such place as is designated in the Certificate of
Incorporation (herein, as amended from time to time, so called), or thereafter
the registered office may be at such other place as the Board of Directors may
from time to time designate by resolution.
Section 2. Other Offices. The Company 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 or the business of the Company may require.
ARTICLE II
STOCKHOLDERS
Section 1. Meetings. All meetings of the stockholders for the election of
Directors shall be held at the principal office of the corporation, or at such
other place within or without the State of Delaware, as may be fixed from time
to time by the Board of Directors. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual Meeting. An annual meeting of the stockholders shall be
held on such date in each fiscal year of the corporation as the Board of
Directors shall select, at which meeting the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting. To be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of the corporation.
To be timely, a stockholder's notice must be delivered to or mailed to and
received at the principal executive offices of the corporation not less than
sixty days prior to the meeting; provided, however, that in the event that less
than sixty-seven days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the seventh day
following the date on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
company, which shall be sent to the attention of the corporation's Secretary,
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting (a) a brief description of the business desired to be brought
before the annual meeting, (b) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business, (c) the class
and number of shares of the corporation which are beneficially owned by the
stockholder, and (d) any material interest of the stockholder in such business.
In addition, notwithstanding anything in this Section 2, Article II to the
contrary, a stockholder intending to nominate one or more persons for election
as a Director at an annual or special meeting must comply with Section 2,
Article III of these Bylaws (herein, as amended from time to time, so called)
for such nomination or nominations to be properly brought before such meeting.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 2.
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The presiding officer of an annual meeting shall, if the facts warrant,
determine that business was not properly brought before the meeting and in
accordance with the provisions of this Section 2, and, if such presiding officer
should so determine, such presiding officer shall so declare to the meeting and
any such business not properly brought before the meeting shall not be
transacted.
Section 3. List of Stockholders. At least ten days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, with the address of and the number of
voting shares registered in the name of each, shall be prepared by the officer
or agent having charge of the stock transfer books. Such list shall be kept on
file 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 for a period of ten days prior to
such meeting and shall be subject to inspection by any stockholder at any time
during usual business hours. Such list shall be produced and kept open at the
time and place of the meeting during the whole time thereof, and shall be,
subject to the inspection of any stockholder who may be present. The Board of
Directors may fix in advance a record date for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders, such
record date to be not less than ten nor more than sixty days prior to such
meeting, or the Board of Directors may close the stock transfer books for such
purpose for a period of not less than ten nor more than sixty days prior to such
meeting. In the absence of any action by the Board of Directors, the close of
business on the date next preceding the day on which the notice is given shall
be the record date.
Section 4. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by the General Corporation Law
of the State of Delaware (herein called "the Act"), by the Certificate of
Incorporation or by these Bylaws, may be called by the President or the Board of
Directors, or shall be called by the President or Secretary at the request in
writing of the holders entitled to cast at least one-fifth of the votes which
all stockholders are entitled to cast at the particular meeting. Such request
shall state the purpose or purposes of the proposed meeting. Business
transacted at all special meetings shall be confined to the purposes stated in
the notice of the meeting unless all stockholders entitled to vote are present
and consent.
Section 5. Notice. Written or printed notice stating the place, day and
hour of any meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary,
or the officer or person calling the meeting, to each stockholder of record
entitled to vote at the meeting.
Section 6. Quorum. At all meetings of the stockholders, the presence in
person or by proxy of the holders of a majority of the shares issued and
outstanding and entitled to vote shall be necessary and sufficient to constitute
a quorum for the transaction of business except as otherwise provided by the
Act, by the Certificate of Incorporation or by these Bylaws. 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 notified.
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Section 7. Voting. When a quorum is present at any meeting, the vote of
the holders of a majority of the shares having voting power present in person or
represented by proxy at such meeting shall decide any questions brought before
such meeting, unless the question is one upon which, by express provision of the
Act or of the Certificate of Incorporation or of these Bylaws, a different vote
is required, in which case such express provision shall govern and control the
decision of such question. Election of Directors at an annual or special meeting
shall be by plurality vote, i.e., the person or persons receiving the greatest
number of votes cast shall be duly elected to the directorship or directorships
being filled at such meeting. The stockholders present in person or by proxy at
a duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
Section 8. Proxy. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders, except to the extent that the voting rights of the shares of any
class or classes are limited or denied by the Certificate of Incorporation. At
any meeting of the stockholders, every stockholder having the right to vote
shall be entitled to vote in person, or by proxy appointed by an instrument in
writing subscribed by such stockholder, or by his duly authorized attorney in
fact, and bearing a date not more than three years prior to said meeting, unless
said instrument provides for a longer period. Such proxy shall be filed with
the Secretary of the corporation prior to or at the time of the meeting.
A duly executed proxy shall be irrevocable if, and only as long as, it is
coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest with which it
is coupled is an interest in the stock itself or an interest in the corporation
generally.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Board of Directors. The business and affairs of the corporation
shall be managed by its Board of Directors who may exercise all such powers of
the corporation and do all such lawful acts and things as are not by the Act or
by the Certificate of Incorporation or by these Bylaws directed or required to
be exercised or done by the stockholders.
Section 2. Number of Directors. Except as otherwise fixed pursuant to the
provisions of Article IV of the Certificate of Incorporation relating to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation to elect additional
directors under specified circumstances, the number of Directors shall be fixed
by resolution of the Board of Directors from time to time, none of whom need be
stockholders or residents of the State of Delaware. The Directors, other than
those who may be elected by the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally held office, into
three classes, as nearly equal in number as possible, as determined by the Board
of Directors, one class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1988, another class to hold office
initially for a term expiring at the annual meeting of stockholders to be held
in 1989, and another class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1990, with members of each class to
hold office until their successors
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are elected and qualified. At each annual meeting of the stockholders of the
corporation, the successors to the class of Directors whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election.
Subject to the rights of holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of Directors may be made by the Board of Directors
or a committee appointed by the Board of Directors or by any stockholder
entitled to vote in the election of Directors generally. However, any
stockholder entitled to vote in the election of Directors generally may nominate
one or more persons for election as Directors at a meeting only if written
notice of such stockholder's intent to make such nomination or nominations has
been given, either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the corporation not later than (i) with respect to
an election to be held at an annual meeting of stockholders, ninety days prior
to the anniversary date of the immediately preceding annual meeting, and (ii)
with respect to an election to be held at a special meeting of stockholders for
the election of Directors, the close of business on the seventh day following
the date on which notice of such meeting is first given to stockholders. Each
such notice shall set forth: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of stock in the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or undertakings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e)
the consent of each nominee to serve as a Director of the corporation if so
elected. The presiding officer of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
Section 3. Vacancies. Any Director may be removed either for or without
cause, at any special or annual meeting of stockholders by the affirmative vote
of a majority in number of shares of the stockholders present in person or by
proxy at such meeting and entitled to vote for the election of such Director.
Newly created directorships resulting from any increase in the authorized number
of directors and any vacancies occurring in the Board of Directors caused by
death, resignation, retirement, disqualification or removal from office of any
Directors or otherwise, may be filled by the vote of a majority of the Directors
then in office, though less than a quorum. Any Director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the class of Directors in which the new directorship was created or the
vacancy occurred and until such Director's successor shall have been elected and
qualified.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. Meetings. The Directors of the corporation may hold their
meetings, both regular and special, at such times and places as are fixed from
time to time by resolution of the Board of Directors.
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Section 2. Annual Meeting. The first meeting of each newly elected Board
of Directors shall be held without further notice immediately following the
annual meeting of stockholders, and at the same place, unless by unanimous
consent of the Directors then elected and serving such time or place shall be
changed.
Section 3. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place as shall from time to time be
determined by resolution of the Board.
Section 4. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President or by a majority of
the Directors in office. The purpose of any special meeting shall be specified
in the notice or any waiver of notice. Each notice of a meeting of the Board of
Directors may be delivered personally or by telephone to a Director not later
than the day before the day on which the meeting is to be held; sent to a
Director at his residence or usual place of business, or at any other place of
which he will have notified the corporation, by telegram, telex, cable,
wireless, facsimile or similar means at least 24 hours before the time at which
the meeting is to be held; or posted to him at such place by prepaid first class
or air mail, as appropriate, at least three days before the day on which the
meeting is to be held. Notice of a meeting of the Board of Directors need not be
given to any Director who submits a signed waiver of notice, whether before or
after the meeting, or who attends the meeting without protesting, prior to or at
its commencement, the lack of notice to him.
Section 5. Quorum. At all meetings of the Board of Directors the presence
of a majority of the number of Directors then constituting the Board of
Directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the affirmative vote of at least a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by the
Act or by the Certificate of Incorporation or by these Bylaws. If a quorum
shall not be present at any meeting 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 6. Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate an Executive Committee, to
consist of two or more Directors of the corporation, one of whom shall be
designated as chairman, who shall preside at all meetings of such Committee. The
Executive Committee shall have and may exercise all of 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; provided, however, that the Executive Committee
shall not have power or authority in reference to (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
Act to be submitted to stockholders for approval, or (ii) adopting, amending or
repealing any bylaw of the corporation. The Executive Committee shall keep
regular minutes of its proceedings and report the same to the Board of Directors
when required. Any member of the Executive Committee may be removed, for or
without cause, by the affirmative vote of a majority of the whole Board of
Directors. If any vacancy or vacancies occur in the Executive Committee caused
by death, resignation, retirement, disqualification, removal from office or
otherwise, the vacancy shall be filled by the affirmative vote of a majority of
the whole Board of Directors.
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Section 7. Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate other committees, each
committee to consist of two or more Directors of the corporation, which
committees shall have such power and authority and shall perform such functions
as may be provided in such resolution. Such committee or committees shall have
such name or names as may be designated by the Board and shall keep regular
minutes of their proceedings and report the same to the Board of Directors when
required.
Section 8. Action by Consent. Any action required or permitted to be taken
at any meeting of the Board of Directors, the Executive Committee or any other
committee of the Board of Directors, may be taken without such a meeting if a
consent in writing, setting forth the action so taken, is signed by all the
members of the Board of Directors or the Executive Committee or such other
committee, as the case may be and the writing or writings are filed with the
minutes of proceedings of the Board or Committee.
Section 9. Compensation of Directors. Directors, as such, shall not
receive any stated salary for their services, but may receive such compensation
and reimbursements as may be determined from time to time by resolution of the
Board; provided that nothing herein contained shall be construed to preclude any
Director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE V
NOTICE OF MEETINGS
Section 1. Form of Notice. Whenever under the provisions of the Act or of
the Certificate of Incorporation or of these Bylaws, notice is required to be
given to any Director or stockholder, and no provision is made as to how such
notice shall be given, it shall not be construed to mean personal notice, but
any such notice may be given in writing, by mail, postage prepaid, addressed to
such Director or stockholder at such address as appears on the books of the
corporation. Any notice required or permitted to be given by mail shall be
deemed to be given at the time when the same be thus deposited in the United
States mail as aforesaid.
Section 2. Waiver. Whenever any written notice is required to be given
to any stockholder or Director of the corporation, under the provisions of the
Act or of the Certificate of Incorporation or of these Bylaws, a waiver thereof
in writing signed by the person or persons entitled to such notice, whether
before or after the time stated in such notice, shall be deemed equivalent to
the giving of such notice.
Section 3. Telephone Meetings. Stockholders, members of the Board of
Directors or members of any committee designated by the Board of Directors may
participate in and hold meetings of such stockholders, 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.
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ARTICLE VI
OFFICERS
Section 1. In General. The officers of the corporation shall be elected by
the Board of Directors and shall be a President, a Vice President, a Secretary
and a Treasurer. The Board of Directors may also elect a Chairman of the Board,
Vice Chairman of the Board, additional Vice Presidents, Assistant Vice
Presidents, a Controller, and one or more Assistant Secretaries and Assistant
Treasurers. Any two or more offices may be held by the same person.
Section 2. Election. The Board of Directors shall annually elect officers
and shall, by resolution, designate one of such officers to be Chief Executive
Officer of the corporation. None of such officers need be a member of the Board
of Directors.
Section 3. Other Officers and Agents. The Board of Directors may also
elect and appoint such other officers and agents as it shall deem necessary, who
shall be elected and appointed for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board.
Section 4. Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors or, if so authorized by the
Board of Directors, by the Chief Executive Officer.
Section 5. Term of Office and Removal. Each officer of the corporation
shall hold office until his death, or his resignation or removal from office, or
the election and qualification of his successor, whichever shall first occur.
Any officer or agent elected or appointed by the Board of Directors may be
removed by the Board of Directors, whenever in its judgment the best interests
of the corporation will be served thereby. If the office of any officer becomes
vacant for any reason, the vacancy may be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if any, shall
preside at all meetings of the stockholders at which he may be present and at
all meetings of the Board at which he may be present, and shall be ex officio a
member of all standing committees and shall perform such other duties as may be
assigned to him by the Board of Directors.
Section 7. Vice Chairman of the Board. The Vice Chairman of the Board, if
any, shall have such powers and perform such duties as the Board of Directors or
the Executive Committee may from time to time prescribe or as the Chairman of
the Board may from time to time delegate to him. In the absence or disability of
the Chairman of the Board, the Vice Chairman of the Board shall perform the
duties and exercise the powers of the Chairman of the Board.
Section 8. Chief Executive Officer. The Chief Executive Officer of the
corporation shall have, subject only to the Board of Directors and the Executive
Committee, general and active management and supervision of the business and
affairs of the corporation and shall see that all orders and resolutions of the
Board of Directors and the Executive Committee are carried into effect. He
shall have all powers and duties of supervision and management usually vested in
the general manager
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of a corporation, including the supervision and direction of all other officers
of the corporation and the power to appoint and discharge agents and employees.
Section 9. President. The President shall be the chief administrative
officer of the corporation. In the absence of the Chairman of the Board or the
Vice Chairman of the Board, if any, he shall preside at all meetings of the
Board of Directors. He shall be ex officio a member of all standing committees
and shall execute bonds, mortgages, and all other contracts or instruments
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and 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. The President
shall perform such other duties as from time to time may be assigned to him by
the Board of Directors and by the Chief Executive Officer of the corporation.
Section 10. Vice Presidents. Each Vice President shall have such powers
and perform such duties as the Board of Directors or the Executive Committee may
from time to time prescribe, or as the Chief Executive Officer may from time to
time delegate to him. In the absence or disability of the President, a Vice
President designated by the Board of Directors shall perform the duties and
exercise the powers of the President.
Section 11. Secretary. The Secretary shall attend all meetings of the
stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The Secretary shall perform like duties for the
Board of Directors and the Executive Committee when required. He 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 the Chief Executive Officer, under whose
supervision he shall be. He shall keep in safe custody the seal of the
corporation.
Section 12. Assistant Secretaries. Each Assistant Secretary shall have such
powers and perform such duties as the Board of Directors may from time to time
prescribe. Unless otherwise provided by the Board of Directors, in the absence
or disability of the Secretary, any Assistant Secretary may perform the duties
and exercise the powers of the Secretary.
Section 13. Treasurer. The Treasurer shall have the custody of all
corporate funds and securities, shall keep full and accurate accounts of
receipts and disbursements of 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. He shall disburse
the funds of the corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, shall render to the Chief Executive
Officer and Directors, at the regular meetings of the Board, or whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the corporation, and shall perform such other duties as
the Board of Directors may prescribe.
Section 14. Assistant Treasurers. Each Assistant Treasurer shall have such
powers and perform such duties as the Board of Directors may from time to time
prescribe. Unless otherwise provided by the Board of Directors, in the absence
or disability of the Treasurer, any Assistant Treasurer may perform and exercise
the powers of the Treasurer.
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Section 15. Controller. The Controller shall share with the Treasurer
responsibility for the financial and accounting books and records of the
corporation, shall report to the Treasurer, and shall perform such other duties
as the Board of Directors or the Executive Committee or the Chief Executive
Officer may from time to time prescribe.
Section 16. Bonding. If required by the Board of Directors, all or
certain of the officers shall give the corporation a bond, in such form, in such
sum, and with such surety or sureties as shall be satisfactory to the Board, for
the faithful performance of the duties of their office and for the restoration
to the corporation, in case of their death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in their possession or under their control belonging to the
corporation.
ARTICLE VII
CERTIFICATES OF SHARES
Section 1. Form of Certificates. Certificates, in such form as may be
determined by the Board of Directors, representing shares to which stockholders
are entitled shall be delivered to each stockholder. Such certificates shall be
consecutively numbered and shall be entered in the stock book of the corporation
as they are issued. Each certificate shall state on the face thereof the
holder's name, the number, class of shares, and the par value of such shares or
a statement that such shares are without par value. They shall be signed by the
President or a Vice President and the Secretary or an Assistant Secretary, and
may be sealed with the seal of the corporation or a facsimile thereof. If any
certificate is countersigned by a transfer agent, or an assistant transfer agent
or registered by a registrar, either of which is other than the corporation or
an employee of the corporation, the signatures of the corporation's officers may
be facsimiles. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on such certificate or
certificates, shall cease to be such officer or officers of the corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates have been delivered by the corporation or its agents, such
certificate or certificates may nevertheless be adopted by the corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
Section 2. Lost Certificates. The Board of Directors may direct that a new
certificate be issued in place of any certificate theretofore issued by the
corporation alleged to have been lost, stolen or destroyed and the Board of
Directors may require the owner of such lost, stolen or destroyed certificate,
or his legal representative, to give the corporation a bond, in such form, in
such sum, and with such surety or sureties 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 3. Transfer of Shares. Shares of stock shall be transferable only
on the books of the corporation by the holder thereof in person or by his duly
authorized attorney, lawfully constituted in writing. No transfer shall be
made which is inconsistent with law.
Section 4. Registered Stockholders. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be
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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 VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the outstanding shares of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting. Dividends may be declared and paid in cash, in property, or in shares
of the corporation, subject to the provisions of the Act and the Certificate of
Incorporation. The Board of Directors may fix in advance a record date for the
purpose of determining stockholders entitled to receive payment of any dividend,
such record date to be not more than sixty days prior to the payment date of
such dividend, or the Board of Directors may close the stock transfer books for
such purpose for a period of not more than sixty days prior to the payment date
of such dividend. In the absence of any action by the Board of Directors, the
date upon which the Board of Directors adopts the resolution declaring such
dividend shall be the record date.
Section 2. Reserves. There may be created by resolution of the Board of
Directors out of the net profits of the corporation such reserve or reserves as
the Directors from time to time, in their discretion, think proper to provide
for contingencies, or to equalize dividends, or to repair or maintain any
property of the corporation, or for such other purpose as the Directors shall
think beneficial to the corporation, and the Directors may modify or abolish any
such reserve in the manner in which it was created.
Section 3. Fiscal Year. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
Section 4. Seal. The corporation shall have a seal, and said seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Any officer of the corporation shall have authority to
affix the seal to any document requiring it.
Section 5. Annual Statement. The Board of Directors shall present at each
annual meeting, and when called for by vote of the stockholders at any special
meeting of the stockholders, a full and clear statement of the business and
condition of the corporation.
Section 6. Checks. 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.
ARTICLE IX
INDEMNITY
Section 1. Indemnification. The corporation shall indemnify its
directors to the fullest extent permitted by the Act and may, if and to the
extent authorized by the Board of Directors, so
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indemnify its officers and any other person whom it has the power to indemnify
against any liability, expense or other matter whatsoever.
Section 2. Indemnification Additional to Other Rights. The rights of
indemnification provided for in this Article IX shall be in addition to any
rights to which any such Director, officer or employee may be entitled under any
agreement, vote of stockholders, the Certificate of Incorporation, or as a
matter of law or otherwise.
ARTICLE X
AMENDMENTS
Section 1. By Stockholders. These Bylaws may be amended or repealed by the
vote of stockholders entitled to at least a majority of the votes which all
stockholders are entitled to cast thereon, at any regular or special meeting of
the stockholders, duly convened after notice to the stockholders of that
purpose.
Section 2. By the Board of Directors. These Bylaws may also be amended or
repealed by the Board of Directors by the vote of a majority of Directors,
except as such power may be limited by any one or more bylaws adopted by the
stockholders.
Adopted and effective as of March 25, 1998
/s/ Jeannette P. Meier
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Jeannette P. Meier,
Secretary
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