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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 9, 1999
SUNRISE MEDICAL INC.
(Exact name of Company as specified in its charter)
Delaware 0-12744 95-3836867
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
2382 Faraday Avenue, Suite 200, Carlsbad, California 92008
(Address of principal executive offices) (Zip Code)
Company's telephone number, including area code: (760) 930-1500
N/A
____________________________________________________________
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On February 9, 1999 Sunrise Medical Inc. (the "Company") executed the
First Amendment to Rights Agreement (the "First Amendment"), which amended in
certain respects the Amended and Restated Rights Agreement between the Company
and ChaseMellon Shareholder Services, L.L.C., dated as of May 16, 1997 (the
"Amended and Restated Rights Agreement").
The First Amendment, among other things, eliminates provisions in the
Amended and Restated Rights Agreement that would have required certain
actions to be taken only by "Interested Directors." A copy of the First
Amendment is attached hereto as Exhibit 4.1 and is incorporated herein by
reference. The foregoing discussion is qualified in its entirety by reference
to the First Amendment and the Amended and Restated Rights Agreement.
On January 26, 1999 the Board of Directors unanimously also voted to
adopt the Second Amended and Restated Bylaws of the Company, a copy of which is
attached hereto as Exhibit 3.1.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) and (b) Financial Statements and Pro Forma Financial
Information
None
(c) Exhibits
3.1 Second Amended and Restated Bylaws of
Sunrise Medical, Inc.
4.1. First Amendment to Rights Agreement, dated as of
February 9, 1999, between Sunrise Medical Inc. and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent.
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SIGNATURES
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.
SUNRISE MEDICAL INC.
Date: February 9, 1999 By: /s/ Steven A. Jaye
-----------------------------------
Steven A. Jaye,
Senior Vice President, General
Counsel and Secretary
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SECOND
AMENDED AND RESTATED
BYLAWS
OF
SUNRISE MEDICAL, INC.,
A DELAWARE CORPORATION
<PAGE>
SECOND
AMENDED AND RESTATED
BYLAWS
OF
SUNRISE MEDICAL, INC.,
a Delaware corporation
TABLE OF CONTENTS
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ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Registered Office. . . . . . . . . . . . . . . . . . . .1
Section 1.2 Other Offices. . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II MEETINGS OF STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . .1
Section 2.1 Place of Meetings.. . . . . . . . . . . . . . . . . . .1
Section 2.2 Annual Meeting of Stockholders.. . . . . . . . . . . . .1
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof. . . . . .1
Section 2.4 Voting.. . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.5 Proxies. . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.6 Special Meetings.. . . . . . . . . . . . . . . . . . . .2
Section 2.7 Notice of Stockholder's Meetings.. . . . . . . . . . . .2
Section 2.8 Maintenance and Inspection of Stockholder
List.. . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.9 Stockholder Action By Written Consent Without a
Meeting. . . . . . . . . . . . . . . . . . . . . . . . .3
Section 2.10 Notice of Stockholder Business and
Nominations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 3.1 Number, Election and Tenure.. . . . . . . . . . . . . .8
Section 3.2 Vacancies. . . . . . . . . . . . . . . . . . . . . . . .8
Section 3.3 Eligibility. . . . . . . . . . . . . . . . . . . . . . .8
Section 3.4 Powers.. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 3.5 Place of Meetings. . . . . . . . . . . . . . . . . . . .9
Section 3.6 Regular Meetings.. . . . . . . . . . . . . . . . . . . .9
Section 3.7 Special Meetings.. . . . . . . . . . . . . . . . . . . .9
Section 3.8 Quorum.. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 3.9 Action Without Meeting.. . . . . . . . . . . . . . . . .9
Section 3.10 Telephonic Meetings.. . . . . . . . . . . . . . . . . 10
Section 3.11 Committees of Directors.. . . . . . . . . . . . . . . 10
Section 3.12 Minutes of Committee Meetings.. . . . . . . . . . . . 10
Section 3.13 Compensation of Directors.. . . . . . . . . . . . . . 10
Section 3.14 Indemnification.. . . . . . . . . . . . . . . . . . . 10
ARTICLE IV OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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i
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Section 4.1 Officers.. . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.2 Election of Officers.. . . . . . . . . . . . . . . . . 13
Section 4.3 Subordinate Officers.. . . . . . . . . . . . . . . . . 13
Section 4.4 Compensation of Officers.. . . . . . . . . . . . . . . 13
Section 4.5 Term of Office; Removal and Vacancies. . . . . . . . . 13
Section 4.6 Chairman of the Board. . . . . . . . . . . . . . . . . 14
Section 4.7 President. . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.8 Vice Presidents. . . . . . . . . . . . . . . . . . . . 14
Section 4.9 Secretary. . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.10 Assistant Secretary.. . . . . . . . . . . . . . . . . 14
Section 4.11 Chief Financial Officer.. . . . . . . . . . . . . . . 15
ARTICLE V CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.1 Certificates. . . . . . . . . . . . . . . . . . . . . 15
Section 5.2 Signatures on Certificates.. . . . . . . . . . . . . . 15
Section 5.3 Statement of Stock Rights, Preferences,
Privileges.. . . . . . . . . . . . . . . . . . . . . . 15
Section 5.4 Lost, Stolen or Destroyed Certificates.. . . . . . . . 16
Section 5.5 Transfers of Stock.. . . . . . . . . . . . . . . . . . 16
Section 5.6 Fixing Record Date.. . . . . . . . . . . . . . . . . . 16
Section 5.7 Registered Stockholders. . . . . . . . . . . . . . . . 16
ARTICLE VI GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.1 Dividends.. . . . . . . . . . . . . . . . . . . . . . 16
Section 6.2 Payment of Dividends.. . . . . . . . . . . . . . . . . 17
Section 6.3 Checks.. . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.4 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . 17
Section 6.5 Corporate Seal.. . . . . . . . . . . . . . . . . . . . 17
Section 6.6 Manner of Giving Notice. . . . . . . . . . . . . . . . 17
Section 6.7 Waiver of Notice.. . . . . . . . . . . . . . . . . . . 17
Section 6.8 Annual Statement.. . . . . . . . . . . . . . . . . . . 17
ARTICLE VII AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 7.1 Amendment by Directors or Stockholders. . . . . . . . . . . . . . . . 18
</TABLE>
<PAGE>
SECOND
AMENDED AND RESTATED
BYLAWS
OF
SUNRISE MEDICAL, INC.,
a Delaware corporation
ARTICLE I
OFFICES
Section 1.1 REGISTERED OFFICE. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section 1.2 OTHER OFFICES. The corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 PLACE OF MEETINGS. Meetings of stockholders shall be
held at any place within or outside the State of Delaware designated by the
Board of Directors. In the absence of any such designation, stockholders'
meetings shall be held at the principal executive office of the corporation.
Section 2.2 ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of
stockholders shall be held each year on a date and at a time designated by the
Board of Directors. At each annual meeting, (i) directors shall be elected only
from the persons who are nominated in accordance with the procedures set forth
in Section 2.10 below and (ii) any proper business shall be conducted only which
has been submitted in accordance with the procedures set forth in Section 2.10
below.
Section 2.3 QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF. A
majority of the voting power of the stock issued and outstanding and entitled to
vote at any meeting of stockholders, the holders of which are present in person
or represented by proxy, shall constitute a quorum for the transaction of
business except as otherwise provided by law, by the Certificate of
Incorporation, or by these Bylaws. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum and the
votes present may continue to transact business until adjournment. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority of the voting power of the stock represented in person
or by proxy may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented.
The Chairman of the Board (or the President in the absence of the Chairman of
the Board) may adjourn the meeting from time to time, whether or not there is
such a quorum. At any adjourned meeting at which a quorum shall be present or
represented, any business may be transacted
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which might have been transacted at the meeting as originally notified. If
the adjournment is for more than thirty days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote thereat.
Section 2.4 VOTING. When a quorum is present at any meeting, the
vote of the holders of a majority of the voting power of the stock present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of the
statutes, or the Certificate of Incorporation, or these Bylaws, or the rules and
regulations of any stock exchange applicable to the corporation or otherwise
provided by law or pursuant to any regulation applicable to the corporation, a
different vote is required in which case such express provision shall govern and
control the decision of such question. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall have one vote for each
share of stock having voting power, registered in his name on the books of the
corporation on the record date set by the Board of Directors. All elections
shall be decided by a plurality vote.
Section 2.5 PROXIES. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the corporation at the beginning of
each meeting in order to be counted in any vote at the meeting.
Section 2.6 SPECIAL MEETINGS. Special meetings of the stockholders,
for any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or the Secretary at the request in writing of a majority of the
Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 2.7 NOTICE OF STOCKHOLDER'S MEETINGS. Whenever stockholders
are required or permitted to take any action at a meeting, a written notice of
the meeting shall be given which notice 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. The written notice of any meeting shall be given
to each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting, unless otherwise required by
law. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
Section 2.8 MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST. The
Secretary shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the
<PAGE>
meeting, during ordinary business hours, for a period of at least
ten 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.
Section 2.9 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
(a) Unless otherwise provided in the Certificate of Incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice to the stockholders and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the greater of (i) 75% of the voting power of shares issued
and outstanding and entitled to vote and (ii) the minimum number of shares that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the date the earliest dated written consent
was received in accordance with Section 2.9(b) of this Article II, a written
consent or consents signed by a sufficient number of holders to take such action
are delivered to the corporation in the manner prescribed in Section 2.9(b) of
this Article II. Consents may be revoked by written notice (i) to the
corporation, (ii) to the stockholder or stockholders soliciting consents or
soliciting revocations in opposition to action by consent (the "Soliciting
Stockholders") or (iii) to a proxy solicitor or other agent designated by the
corporation or the Soliciting Stockholders. Prompt notice of the corporate
action taken by written consent shall be given to those stockholders who did not
consent in writing.
(b) In order that the corporation may determine the stockholders
entitled to express consent to corporate action in writing without a meeting,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which date shall not be more than 10 days after the
date upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within 10 days after the date on
which such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within 10 days of the
date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by applicable law, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the date on
which the
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Board of Directors adopts the resolution taking such prior action. Every
signed written consent shall be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business or to any officer
or agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery shall be by hand or by
certified or registered mail, return receipt requsted.
(c) PROCEDURES
(1) Within ten (10) business days after receipt of the earliest
dated written consent delivered to the corporation in the manner provided in
Section 228 of the General Corporation Law of the State of Delaware or the
determination by the Board of Directors of the corporation that the corporation
should seek corporate action by written consent, as the case may be, the
secretary of the corporation shall engage nationally recognized independent
inspectors of elections for the purpose of performing a ministerial review of
the validity of the consents and revocations. The cost of retaining inspectors
of election shall be borne by the corporation. For the purpose of permitting
the inspectors to perform such review, no action by written consent without a
meeting shall be effective until such date as the independent inspectors certify
to the corporation that the consents delivered to the corporation in accordance
with this Section 2.9 represent not less than the greater of (i) 75% of the
voting power of shares issued and outstanding and entitled to vote and (ii) the
minimum number of shares that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Nothing contained in this Section 2.9(c) shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
(2) Following appointment of the inspectors, consents and
revocations shall be delivered to the inspectors upon receipt by the
corporation, the Soliciting Stockholders or their proxy solicitors or other
designated agents. As soon as practicable following the earlier of (a) the
receipt by the inspectors, a copy of which shall also be delivered to the
corporation, of any written demand by the Soliciting Stockholders of the
corporation, or (b) sixty (60) days after the date of the earliest dated consent
delivered to the corporation in the manner provided in Section 228 of the
General Corporation Law of the State of Delaware, the inspectors shall issue a
preliminary report to the corporation and the Soliciting Stockholders stating
the number of valid and unrevoked consents received and whether, based on the
preliminary count, the requisite number of valid and unrevoked consents has been
obtained to authorize or take the action specified in the consents.
(3) Unless the corporation and the Soliciting Stockholders
shall agree to a shorter or longer period, the corporation and the Soliciting
Stockholders shall have forty-eight (48) hours to review the consents and
revocations and to advise the inspectors and the opposing party in writing,
which writing must be received within such forty-eight (48) hour period, as
to whether they intend to challenge the preliminary report of the inspectors.
If no
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written notice of an intention to challenge the preliminary report is
received by the inspectors and the opposing party within forty-eight (48) hours
after the inspectors' issuance of the preliminary report, the inspectors shall
issue to the corporation and the Soliciting Stockholders their final report
containing the information from the inspectors' determination with respect to
whether the requisite number of valid and unrevoked consents was obtained to
authorize and take the action specified in the consents. If the corporation or
the Soliciting Stockholders issue written notice of an intention to challenge
the inspectors' preliminary report within forty-eight (48) hours after the
issuance of that report, a challenge session shall be scheduled by the
inspectors as promptly as practicable. Following completion of the challenge
session, the inspectors shall as promptly as practicable issue their final
report to the Soliciting Stockholders and the corporation, which report shall
contain the information included in the preliminary report, plus any change in
the vote total as a result of the challenge and a certification of whether the
requisite number of valid and unrevoked consents was obtained to authorize or
take the action specified in the consents.
Section 2.10 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders only (a)
pursuant to the corporation's notice of meeting (or any supplement thereto), (b)
by or at the direction of the Board of Directors or the Chairman of the Board or
(c) by any stockholder of the corporation who was a stockholder of the
corporation of record at the time the notice provided for in this Section 2.10
is delivered to the Secretary of the corporation, who is entitled to vote at the
meeting and complies with the notice procedures set forth in this Section 2.10.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(a)(1) of this Section 2.10, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than thirty (30) days before or more than seventy (70) days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than (x) the close of
business on the later of the ninetieth (90th) day prior to such annual meeting
or (y) the tenth (10th) day following the day on which public announcement of
the date of such meeting is first made by the corporation. In no event shall
the public announcement of an adjournment or postponement of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth: (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a director
all information relating to such person that is required to be disclosed in
<PAGE>
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(and such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made, and in the event that such business includes a proposal to
amend the Bylaws of the corporation, the language of the proposed amendment; and
(c) as to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, (iii)
a representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to propose such business or nomination, (iv) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons pursuant to which the nomination or
nominations are to be made by the stockholder, and (v) a representation whether
the stockholder or the beneficial owner, if any, intends or is part of a group
which intends to (a) deliver a proxy statement and form of proxy to holders of
at least the percentage of the corporation's outstanding Common Stock required
to approve or adopt the proposal or elect the nominee and/or (b) otherwise
solicit proxies from stockholders in support of such proposal or nomination.
The corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as a director of the corporation
or for use in the preparation of materials used for the solicitation of proxies
for the election of directors.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 2.10 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the corporation at an
annual meeting is increased and there is no public announcement by the
corporation naming all of the nominees for director or specifying the size of
the increased Board of Directors at least one hundred (100) days prior to the
first anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 2.10 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
corporation who is a stockholder of record at the time the
<PAGE>
notice provided for in this Section 2.10 is delivered to the Secretary of the
corporation, who shall be entitled to vote at the meeting and upon such
election and who complies with the notice procedures set forth in this
Section 2.10. In the event the corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of Directors, any such stockholder may nominate a person or persons (as the
case may be) for election to such position(s) as specified in the
corporation's notice of meeting, if the stockholder's notice required by
paragraph (a)(2) of this Section 2.10 shall be delivered to the Secretary at
the principal executive offices of the corporation not earlier than the close
of business on the one hundred twentieth (120th) day prior to such special
meeting and not later than the close of business on the later of (x) the
ninetieth (90th) day prior to such special meeting, or (y) the tenth (10th)
day following the day on which public announcement is first made of the date
of the special meeting and of the nominees proposed by the Board of Directors
to be elected at such meeting. In no event shall the public announcement of
an adjournment or postponement of a special meeting commence a new time
period for the giving of a stockholder's notice as described above.
(c) GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.10 shall be eligible to be elected at an
annual or special meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 2.10. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the chairman of the meeting shall
have the power and duty to (i) determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 2.10 and (ii) if
any proposed nomination or business is not in compliance with this Section 2.10,
including if the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicits or is part of a group which solicits
proxies in support of such stockholder's proposal without the stockholder having
made the representation required by clause (c)(v) of Section (a)(2) of this
Bylaw, to declare that such defective nomination shall be disregarded or that
such proposed business shall not be transacted.
(2) For purposes of this Section 2.10, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.10, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.10. Nothing in this Section 2.10 shall be
deemed to affect any rights (i) of stockholders to request inclusion of
proposals in the corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) of the holders of any series of preferred stock to elect
directors under specified circumstances.
<PAGE>
ARTICLE III
DIRECTORS
Section 3.1 NUMBER, ELECTION AND TENURE. The authorized number of
directors which shall constitute the Board shall not be less than four (4) nor
more than ten (10). The exact number shall be determined from time to time by
resolution of the Board. Until otherwise determined by such resolution, the
Board shall consist of eight (8) persons. Directors shall be elected at the
annual meeting of stockholders and each director shall serve until such person's
successor is elected and qualified or until such person's death, retirement,
resignation or removal. The directors need not be stockholders. Subject to the
rights, if any, of the holders of shares of Preferred Stock then outstanding, if
any, any director or the entire Board of Directors may be removed, with or
without cause, by the holders of 75% of the voting power of the shares then
entitled to vote at an election of directors except that (i) unless the
certificate of incorporation provides otherwise, if the corporation shall have a
classified Board of Directors, shareholders may effect such removal only for
cause, and (ii) so long as the corporation shall have cumulative voting in
respect of the election of directors, if less than the entire board is to be
removed, no director may be removed without cause if the votes cast against the
removal of the director would be sufficient to elect that person if then
cumulatively voted at an election of the entire Board of Directors or, if the
corporation shall have classes of directors, at an election of the class of
directors of which that person is a part.
Section 3.2 VACANCIES. Vacancies on the Board of Directors by reason
of death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled only by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
The directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and qualified, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 3.3 ELIGIBILITY. Subject to the rights, if any, of the
holders of shares of Preferred Stock then outstanding, if any, only persons who
are nominated in accordance with the procedures set forth in Section 2.10 shall
be eligible for election as directors at an annual or special meeting of
stockholders.
Section 3.4 POWERS. The property and business of the corporation
shall be managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these Bylaws expressly conferred upon
them, the Board may exercise all such
<PAGE>
powers of the corporation and do all such lawful acts and things as are not
by statute or by the Certificate of Incorporation or by these Bylaws directed
or required to be exercised or done by the stockholders.
Section 3.5 PLACE OF MEETINGS. The directors may hold their meetings
and have one or more offices, and keep the books of the corporation outside of
the State of Delaware.
Section 3.6 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 the Board.
Section 3.7 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the President on forty-eight hours' notice to each
director, either personally or by mail, facsimile or by telegram; special
meetings shall be called by the President or the Secretary in like manner and on
like notice on the written request of two directors unless the Board consists of
only one director; in which case special meetings shall be called by the
President or Secretary in like manner or on like notice on the written request
of the sole director.
Section 3.8 QUORUM. At all meetings of the Board of Directors a
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business, and the vote of a
majority of the directors present at any meeting at which there is a quorum,
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these Bylaws. If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. If only one director is authorized, such sole director shall
constitute a quorum.
Section 3.9 ACTION WITHOUT MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 3.10 TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any 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 such participation in a
meeting shall constitute presence in person at such meeting.
Section 3.11 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by the Board, designate one or more committees, each such
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 a
<PAGE>
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 the 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 the power
or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the Bylaws of the corporation; and, unless the resolution or the Certificate
of Incorporation expressly so provide, no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of stock.
Section 3.12 MINUTES OF COMMITTEE MEETINGS. Each committee shall
keep regular minutes of its meetings and report the same to the Board of
Directors when required.
Section 3.13 COMPENSATION OF DIRECTORS. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, the Board of Directors
shall have the authority to fix the compensation of directors. The directors
may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
Section 3.14 INDEMNIFICATION.
(a) The corporation shall indemnify to the fullest extent permitted
by law any person (together with the persons described in paragraph (b) of this
Section 3.14, an "Indemnitee") who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director or officer of the corporation, or is or was serving at the written
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines, ERISA excise taxes and
amounts paid or to be paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with
<PAGE>
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(b) The corporation shall indemnify to the fullest extent permitted
by law any person (together with the persons described in paragraph (a) of this
Section 3.14, an "Indemnitee") who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of the corporation, or is or was
serving at the written request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no such indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
(c) Notwithstanding the provisions of paragraphs (a) or (b) of this
Section 3.14, except as otherwise provided in paragraph (e) of this Section
3.14, the corporation shall be required to indemnify an Indemnitee in connection
with a proceeding (or part thereof) commenced by such Indemnitee only if the
commencement of such proceeding (or part thereof) by the Indemnitee was
authorized by the Board of Directors of the corporation.
(d) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil, criminal, administrative or investigative action,
suit or proceeding shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer, to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this Section 3.14.
(e) If a claim for indemnification or advancement of expenses under
this Section 3.14 is not paid in full within thirty days after a written claim
therefor by the Indemnitee has been received by the corporation, the Indemnitee
may file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the corporation shall have the burden of proving that
the Indemnitee is not entitled to the requested indemnification or advancement
of expenses under applicable law.
(f) The indemnification provided by this Section 3.14 shall be
deemed to be a contract right and shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any statute,
provision in the Certificate of Incorporation or these Bylaws,
<PAGE>
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased
to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) The Board of Directors may authorize, by a vote of a majority of
a quorum of the Board of Directors, the corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Section 3.14.
(h) For the purposes of this Section 3.14, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, limited liability company,
trust or other enterprise, shall stand in the same position under the provisions
of this Section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit plan;
and references to "serving at the request of the corporation" shall include
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) Any repeal or modification of the provisions of this Section 3.14
shall not adversely affect any right or protection hereunder of any Indemnitee
in respect of any act or omission occurring prior to the time of such repeal or
modification.
(k) This Section 3.14 shall not limit the right of the corporation,
to the extent and in the manner permitted by law, to indemnify and to advance
expenses to persons other than persons specified in paragraphs (a) and (b) of
this Section 3.14 when and as authorized by appropriate corporate action.
<PAGE>
ARTICLE IV
OFFICERS
Section 4.1 OFFICERS. The officers of this corporation shall be
chosen by the Board of Directors and shall include a Chairman of the Board, a
President, a Secretary, and a Chief Financial Officer. The corporation may also
have at the discretion of the Board of Directors such other officers as are
desired, including one or more Vice Presidents, one or more Assistant
Secretaries, and such other officers as may be appointed in accordance with the
provisions of Section 4.3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these Bylaws otherwise provide.
Section 4.2 ELECTION OF OFFICERS. The Board of Directors, at its
first meeting after each annual meeting of stockholders, shall choose the
officers of the corporation.
Section 4.3 SUBORDINATE 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.
Section 4.4 COMPENSATION OF OFFICERS. The salaries of all officers
and agents of the corporation shall be fixed by the Board of Directors.
Section 4.5 TERM OF OFFICE; REMOVAL AND VACANCIES. The officers of
the corporation shall hold office until their successors are chosen and qualify
in their stead. 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. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
Section 4.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if
such an officer be elected, shall, if present, preside at all meetings of the
stockholders and of the Board of Directors and exercise and perform such other
powers and duties as may be from time to time assigned to him by the Board of
Directors or prescribed by these Bylaws. If there is no President, the Chairman
of the Board shall in addition be the Chief Executive Officer of the corporation
and shall have the powers and duties prescribed in Section 4.7 of this Article
IV.
Section 4.7 PRESIDENT. Subject to such supervisory powers, if
any, as may be given by the Board of Directors to the Chairman of the Board,
the President shall be the Chief Executive Officer of the corporation and
shall, subject to the control of the Board of Directors, have general
supervision, direction and control of the business and officers of the
corporation. In the absence of the Chairman of the Board, he shall preside at
all meetings of the stockholders and at all meetings of the Board of
Directors. He shall be an ex-officio member of all committees and shall have
the general powers and duties of management usually vested in the office of
<PAGE>
President and Chief Executive Officer of corporations, and shall have such
other powers and duties as may be prescribed by the Board of Directors or
these Bylaws.
Section 4.8 VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all 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 Vice Presidents shall have such other duties as from time to
time may be prescribed for them, respectively, by the Board of Directors.
Section 4.9 SECRETARY. The Secretary shall attend all sessions of
the Board of Directors and all meetings of the stockholders and record all votes
and the minutes of all proceedings in a book to be kept for that purpose; and
shall perform like duties for the standing committees when required by the Board
of Directors. He shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or these Bylaws. He shall
keep in safe custody the seal of the corporation, and when authorized by the
Board, affix the same to any instrument requiring it, and when so affixed it
shall be attested by his signature or by the signature of an 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.
Section 4.10 ASSISTANT SECRETARY. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by the
Board of Directors, or if there be no such determination, the Assistant
Secretary designated by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 4.11 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 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, and shall render to the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Chief Financial Officer and of the financial condition of the
corporation. If required by the Board of Directors, he shall give the
corporation a bond, in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors, for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
<PAGE>
ARTICLE V
CERTIFICATES OF STOCK
Section 5.1 CERTIFICATES. Every holder of stock of the corporation
shall be entitled to have a certificate signed by, or in the name of the
corporation by, the Chairman or Vice Chairman of the Board of Directors, or the
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Chief Financial Officer of the corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the
corporation.
Section 5.2 SIGNATURES ON CERTIFICATES. Any or all of 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 5.3 STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES. If
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 5.5 TRANSFERS OF STOCK. Upon surrender to the corporation,
or the transfer agent of the corporation, of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignation or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
<PAGE>
Section 5.6 FIXING RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders, or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action (except action to be taken pursuant
to a written consent of stockholders without a meeting as specifically
contemplated in Section 2.9(b) of Article II), the Board of Directors may fix a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 5.7 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 bound to recognize any
equitable or other claim or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 DIVIDENDS. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 6.2 PAYMENT OF DIVIDENDS. Before payment of any dividend
there may be set aside out of any funds of the corporation available for
dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive to
the interests of the corporation, and the directors may abolish any such
reserve.
Section 6.3 CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 6.4 FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 6.5 CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
<PAGE>
Section 6.6 MANNER OF GIVING NOTICE. Whenever, under the provisions
of the statutes or of the Certificate of Incorporation or of these Bylaws,
notice is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by facsimile or
telegram.
Section 6.7 WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
Section 6.8 ANNUAL STATEMENT. The Board of Directors shall present
at each annual meeting, and at any special meeting of the stockholders when
called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
ARTICLE VII
AMENDMENTS
Section 7.1 AMENDMENT BY DIRECTORS OR STOCKHOLDERS. The Board of
Directors is expressly empowered to adopt, amend or repeal the bylaws of the
corporation, without the approval of the stockholders. Any adoption, amendment
or repeal of the bylaws of the corporation by the Board of Directors shall
require the approval of a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any resolution providing for adoption, amendment or repeal is
presented to the Board). The holders of 75% of the voting power of the stock
issued and outstanding and entitled to vote shall also have power to adopt,
amend or repeal the bylaws of the corporation.
<PAGE>
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of February 9, 1999 ("First Amendment"), to
Amended and Restated Rights Agreement dated as of May 16, 1997 (the "Rights
Agreement"), between Sunrise Medical, Inc. (the "Company") and ChaseMellon
Shareholder Services, L.L.C. (the "Rights Agent"). Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to them in the
Rights Agreement.
WHEREAS, the Company and the Rights Agent previously entered into the
Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend any provision of
the Rights Agreement in accordance with the terms of such Section 26.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
agreements set forth in this Amendment, the parties hereby amend the Rights
Agreement as follows:
1. The first proviso of Section 1(c)(ii) of the Rights Agreement
is hereby amended to (a) delete the words "prior to such Person's becoming an
Acquiring Person" and substitute therefor the words "has approved such agreement
and determined that such Person shall not be deemed to be the Beneficial Owner
of such securities within the meaning of this SECTION 1(C)" and (b) delete the
words "such agreement has been approved by" and substitute therefor the words
"prior to such Person's becoming an Acquiring Person".
2. Section 1(k) of the Rights Agreement is hereby amended to
delete the words "Interested Director" and "23(c)".
3. The second sentence of Section 3(a) of the Rights Agreement is
hereby amended and restated in its entirety as follows:
"The preceding sentence notwithstanding, prior to the occurrence of a
Distribution Date specified as a result of an event described in
clause (ii) (or such later Distribution Date as the Board of Directors
of the Company may select pursuant to this sentence), the Board of
Directors of the Company may postpone, one or more times, the
Distribution Date which would occur as a result of an event described
in clause (ii) beyond the date set forth in clause (ii) of the
preceding sentence."
4. Section 11(a)(ii) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"Subject to Section 27 of this Agreement, in the event that a Trigger
Event occurs, then, promptly following the first occurrence of a
Trigger Event, proper provision shall be made so that each holder of a
Right, except as provided below, shall
<PAGE>
thereafter have a right to receive, upon exercise thereof in
accordance with the terms of this Rights Agreement, such number of
Common Shares as shall equal the result obtained by (x) multiplying the
then-current Purchase Price by the then-number of Common Shares for which
a Right is then exercisable and (y) dividing that product by 50% of the
current per share market price of the Common Shares (determined pursuant to
Section 11(d)) on the date of the occurrence of, or the date of the first
public announcement of, one of the events listed above in this Section
11(a)(ii) (the "Adjustment Shares"); PROVIDED, HOWEVER, that if the
transaction that would otherwise give rise to the foregoing adjustment
is also subject to the provisions of Section 13, then only the
provisions of Section 13 shall apply and no adjustment shall be made
pursuant to this Section 11(a)(ii). Notwithstanding the foregoing,
upon the occurrence of a Trigger Event, any Rights that are or were
acquired or beneficially owned by an Acquiring Person or any Associate
or Affiliate of the Acquiring Person shall become null and void and
any holder (whether or not such holder is an Acquiring Person or an
Associate or Affiliate of an Acquiring Person) of such Rights shall
thereafter have no right to exercise such Rights under any provision
of this Rights Agreement or otherwise. Any Right Certificate issued
pursuant to Section 3 or 22 that represents Rights beneficially owned
by: (1) an Acquiring Person or any Associate or Affiliate thereof, (2)
a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes
such, or (3) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which
the Board of Directors of the Company has determined is part of a
plan, arrangement or understanding which has as a primary purpose or
effect avoidance of this Section 11(a)(ii) and any Right Certificate
issued pursuant to Section 6, 7(d) or 22 or this Section 11 upon
transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain the following
legend (PROVIDED, HOWEVER, that the Rights Agent shall not be
responsible for affixing such legend unless the Company has notified
the Rights Agent in writing thereof):
The Rights represented by this Right Certificate are
held or have been held by a Person who was an
Acquiring Person or an Affiliate or an Associate of
an Acquiring Person or a nominee thereof. This Right
Certificate and the Rights represented hereby have
become null and void as specified in Section
11(a)(ii) of the Rights Agreement.
<PAGE>
The Company shall use all reasonable efforts to insure that the
provisions of this Section 11(a)(ii) are complied with, but neither
the Company nor the Rights Agent shall have any liability to any
holder of Right Certificates or other Person as a result of the
Company's failure to make any determinations with respect to any
Acquiring Person or its Affiliates, Associates or transferees
hereunder."
5. The last sentence of Section 11(d) of the Rights Agreement is
hereby amended to add the words "or if on any such date the Common Shares are
not so quoted and no such market maker is making a market in the Common Shares,"
after the word "traded" and before the word "current".
6. Section 11(f) of the Rights agreement is hereby amended to (a)
delete the words "11(a) through (c), inclusive" and substitute therefor the
words "11(b), 11(c), 11(e), 11(h), 11(i) and 11(m)"; and (b) delete the words
"and 13" and substitute therefor the words ", 13 and 14".
7. Section 13(b) of the Rights Agreement is hereby amended to (a)
delete the words "In the event" and substitute therefor the words "Upon the
consummation", and to (b) add the words "of the type described in clause (A),
(B) or (C) of SECTION 13(A)" after the word "transaction" and before the word
"involving".
8. Section 20(c) of the Rights Agreement is hereby amended to add
a second sentence at the end thereof, which reads in its entirety as follows:
"Anything to the contrary notwithstanding, in no event shall the
Rights Agent be liable for special, punitive, indirect, consequential
or incidental loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Rights Agent has been advised of
the likelihood of such loss or damage."
9. Section 22 of the Rights Agreement is hereby amended to add a
second sentence at the end thereof, which reads in its entirety as follows:
"In addition, in connection with the issuance or sale of Common Shares
following the Distribution Date and prior to the Expiration Date, the
Company shall, with respect to Common Shares so issued or sold
pursuant to the exercise of stock options or under any employee plan
or arrangement, granted or awarded, or upon exercise, conversion or
exchange of securities issued by the Company, in each case
existing prior to the Distribution Date, issue Right Certificates
representing the appropriate number of Rights in connection with such
issuance or sale; PROVIDED, HOWEVER, that (i) no such Right
Certificate shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company
or the Person to whom such Right Certificate would be issued and
(ii) no such Right
<PAGE>
Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof."
10. Section 23(a) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(a) The Board of Directors of the Company may, at its option, at
any time prior to a Trigger Event, redeem all but not less than all of
the then outstanding Rights at a redemption price of $.01 per Right,
appropriately adjusted to reflect any stock split, stock dividend,
recapitalization or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the
"REDEMPTION PRICE"), and the Company may, at its option, pay the
Redemption Price in Common Shares (based on the "current per share
market price," determined pursuant to Section 11(d), of the Common
Shares at the time of redemption), cash or any other form of
consideration deemed appropriate by the Board of Directors. The
redemption of the Rights by the Board of Directors may be made
effective at such time, on such basis and subject to such conditions
as the Board of Directors in its sole discretion may establish."
11. Section 23(c) of the Rights Agreement is hereby deleted in its
entirety.
12. Section 24 of the Rights Agreement is hereby amended to add the
words "at any time after the earlier of the Shares Acquisition Date and the
Distribution Date" after the word "propose" and before subheading "(a)".
13. The first sentence of Section 26 of the Rights Agreement is
hereby amended by deleting clause (ii) thereof in its entirety, renumbering
clause (iii) as (ii), and adding the word "or" immediately prior to the new
clause (ii).
14. Section 34 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"Section 34. DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS.
The Board of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise the rights and
powers specifically granted to the Board of Directors of the Company or to
the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including, without limitation, a determination to redeem or not
redeem the Rights or amend this Agreement). All such actions,
calculations, interpretations and determinations (including, for purposes
of clause (y) below, all omissions with respect to the foregoing) that are
done or made by the Board of Directors of the Company in good faith shall
(x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights, as such, and all
<PAGE>
other parties, and (y) not subject the Board of Directors to any liability
to the holders of the Rights. The Rights Agent shall always be entitled to
assume that the Board of the Company acted in good faith and shall be fully
protected and shall incur no liability in reliance on such assumption."
15. The fourth paragraph of Exhibit A to the Rights Plan ("Form of
Right Certificate) is hereby amended and restated in its entirety as follows:
"Subject to the provisions of the Agreement, the Board of
Directors may, at its option, (i) redeem the Rights evidenced by this
Right Certificate at a redemption price of $.01 per Right or (ii)
exchange Common Shares for the Rights evidenced by this Certificate,
in whole or in part."
16. Clause (ii) of the second paragraph of Exhibit B to the Rights
Plan (SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES), is hereby amended to add the
words "or such later date as may be determined by the Board of Directors prior
to such time as any person or group of affiliated persons becomes an Acquiring
Person" after the word "days" and before the word "following".
17. The first sentence of the fourth paragraph of Exhibit B to the
Rights Plan (SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES) is hereby amended and
restated in its entirety as follows:
"The Rights Agreement provides that until the Distribution Date
(or earlier redemption, exchange, termination or expiration of the
Rights), the Rights will be transferred with and only with the Common
Shares."
18. The tenth paragraph of Exhibit B to the Rights Plan (SUMMARY OF
RIGHTS TO PURCHASE COMMON SHARES), is hereby amended to delete the words "public
announcement that a Person has become an Acquiring Person" and replace them with
the words "time that a Person becomes an Acquiring Person".
19. The eleventh paragraph of Exhibit B to the Rights Plan (SUMMARY
OF RIGHTS TO PURCHASE COMMON SHARES) is hereby deleted in its entirety.
20. The thirteenth paragraph of Exhibit B to the Rights Plan
(SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES) is hereby amended by deleting
clause (ii) thereof in its entirety, renumbering clause (iii) as (ii) and adding
the word "or" immediately prior to the new clause (ii).
21. This First Amendment shall be effective as of the date hereof
and, except as expressly set forth herein, the Rights Agreement shall remain in
full force and effect and be otherwise unaffected hereby.
<PAGE>
21.1. This First Amendment may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all such counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first written above.
SUNRISE MEDICAL, INC.
By:/s/ Steven A. Jaye
-------------------------------------
Name: Steven A. Jaye
Title: Senior Vice President, General
Counsel and Secretary
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By:/s/ Ian D. Gass
------------------------------------------
Name: Ian D. Gass
Title: Assistant Vice President
