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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): April 19, 1996
Au Bon Pain Co., Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-19253 04-2723701
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
19 Fid Kennedy Avenue, Boston, Massachusetts 02210
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 423-2100
N/A
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On April 19, 1996, the Board of Directors of Au Bon Pain Co., Inc. (the
"Corporation") voted to amend and restate the Corporation's By-laws. The
following summary of the principal amendments to the Corporation's By-laws does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the amended and restated By-laws which are attached as an exhibit
to this Report.
Section 4 of Article III and Section 3 of Article IV of the
Corporation's By-laws have been amended to provide for certain advance notice
and informational requirements for any new business or any Director nomination
which a stockholder wishes to propose for consideration at an annual meeting of
stockholders. Formerly, the Corporation's By-laws did not contain any provisions
relating to stockholder proposals or nominations of candidates for election as
Directors. Under the amended and restated By-laws, a stockholder who wishes to
submit such a proposal or nomination must be a stockholder of record both at the
time notice of the proposal or nomination is given and as of the record date for
the annual meeting in question. To be timely, a stockholder's notice must be
delivered to the Corporation not less than 60 days nor more than 150 days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders (the "Anniversary Date"); provided, that in the event that the
annual meeting of stockholders in any year is to be held more than 30 days prior
to or more than 60 days after the Anniversary Date, then a stockholder's notice
must be delivered to the Corporation not later than the close of business on the
later of (i) the 10th day following the first date on which the date of such
meeting was publicly disclosed or (ii) the 60th day prior to the scheduled date
of such meeting. A stockholder notice must contain certain information intended
to identify the stockholder and the nature of the proposal and, in the case of
Director nominations, information comparable to that required under applicable
rules and regulations of the Securities and Exchange Commission.
Section 4 of Article III and Section 3 of Article IV further provide
that if the Board of Directors determines that any stockholder proposal or
nomination is not timely made or fails to satisfy the informational requirements
in any material respect, such proposal or nomination will not be considered at
the annual meeting. In addition, a stockholder's proposal or nomination will not
be acted upon at the annual meeting unless such stockholder or his
representative is present in person at the annual meeting.
Notwithstanding the amendments to Section 4 of Article III and Section
3 of Article IV of the Corporation's By-laws described above, a stockholder must
also comply with all applicable requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations thereunder
in connection with any stockholder proposal. Nothing in the amended and restated
By-laws shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
Section 2 of Article III of the Corporation's By-laws has been amended
to provide that special meetings of stockholders may be called only by the Board
of Directors or a Co-Chairman of the Board. The By-laws previously provided that
special meetings of stockholders could be called by (i) the Board of Directors,
(ii) a Co-Chairman of the Board or (iii) the Secretary of the Corporation upon
written application of one or more stockholders holding shares of stock
entitling such stockholder or stockholders to cast not less than 10% of the
votes entitled to be cast at such meeting.
Section 5 of Article III has been amended to authorize the Board of
Directors to reschedule and postpone any annual or special meeting of
stockholders and any record date with respect thereto. Section 5 also allows
adjournment of any stockholder meeting if the
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Board of Directors determines that adjournment (i) is necessary or appropriate
to enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available or (ii)
is otherwise in the best interests of the stockholders.
Section 12 has been added to Article I authorizing the Corporation to
appoint an inspector (who may be an officer, employee or agent of the
Corporation) to tabulate votes at stockholder meetings and to determine the
legality and sufficiency of the votes cast. All determinations made by the
inspector are subject to review by both the presiding officer of the meeting and
a court of competent jurisdiction.
Section 2 of Article VI has been amended to provide that Directors may
be removed only for "cause," and defines "cause" as (i) conviction of a felony,
(ii) declaration of unsound mind by order of court, (iii) gross dereliction of
duty, (iv) conviction of any crime involving moral turpitude, or (v) commission
of an action which constitutes intentional misconduct or a knowing violation of
law if such action in either event results both in an improper substantial
personal benefit and a material injury to the Corporation.
Item 7. Exhibits.
Exhibit No. Description
3(ii) By-laws of Au Bon Pain Co., Inc.
as amended and restated as of
April 19, 1996.
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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 thereunto duly authorized.
AU BON PAIN CO., INC.
By: /s/ Anthony J. Carroll
----------------------------
Anthony J. Carroll
Vice President and Chief
Financial Officer (Principal
Financial and Accounting
Officer)
Date: June 12, 1996
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As Amended and Restated
April 19, 1996
TABLE OF CONTENTS
OF
AMENDED AND RESTATED BY-LAWS
OF
AU BON PAIN CO., INC.
<TABLE>
<CAPTION>
SUBJECT PAGE
- ------- ----
<S> <C>
CERTIFICATE OF INCORPORATION..................................................................... 1
FISCAL YEAR...................................................................................... 1
MEETINGS OF STOCKHOLDERS......................................................................... 1
Annual Meetings......................................................................... 1
Special Meetings........................................................................ 2
Place of Meeting........................................................................ 2
Matters to be Considered at an Annual Meeting........................................... 2
Notice of Meetings; Adjournments........................................................ 5
Quorum.................................................................................. 6
Action by Vote.......................................................................... 7
Voting.................................................................................. 7
Action by Consent....................................................................... 8
Proxies................................................................................. 8
Presiding Officer....................................................................... 8
Voting Procedures and Inspectors of Election............................................ 9
DIRECTORS........................................................................................ 9
Powers.................................................................................. 9
Enumeration, Election and Term of Office................................................ 10
Director Nominations.................................................................... 10
Regular Meetings........................................................................ 13
Special Meetings........................................................................ 14
Notices................................................................................. 14
Quorum.................................................................................. 14
Action by Consent....................................................................... 15
Committees.............................................................................. 15
</TABLE>
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<TABLE>
<S> <C>
Meeting by Telecommunications........................................................... 15
Action at Meeting....................................................................... 16
OFFICERS AND AGENTS.............................................................................. 16
Enumeration; Qualification.............................................................. 16
Powers.................................................................................. 16
Election................................................................................ 17
Tenure.................................................................................. 17
Co-Chairman and Vice Chairman........................................................... 17
Vice Presidents......................................................................... 18
Treasurer and Assistant Treasurers...................................................... 18
Secretary and Assistant Secretaries..................................................... 18
RESIGNATIONS, REMOVALS AND VACANCIES............................................................. 19
Resignations............................................................................ 19
Removals................................................................................ 19
Vacancies............................................................................... 20
STOCK ........................................................................................ 21
Stock Authorized........................................................................ 21
Issue of Authorized Unissued Capital Stock.............................................. 21
Certificate of Stock.................................................................... 21
Transfers............................................................................... 22
Lost, Mutilated or Destroyed Certificates............................................... 22
Transfer Agent and Registrar............................................................ 23
Setting Record Date and Closing Transfer Records........................................ 23
MISCELLANEOUS PROVISIONS......................................................................... 24
Execution of Papers..................................................................... 24
Voting of Securities.................................................................... 24
Corporate Seal.......................................................................... 24
Corporate Records....................................................................... 24
Evidence of Authority................................................................... 25
AMENDMENTS....................................................................................... 25
</TABLE>
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AMENDED AND RESTATED BY-LAWS
ARTICLE I
Certificate of Incorporation
The name and purposes of the Corporation shall be as set forth in the
Certificate of Incorporation. These By-Laws, the powers of the Corporation and
its Directors and Stockholders, and all matters concerning the conduct and
regulation of the business of the Corporation, shall be subject to the
provisions in regard thereto, if any, as are set forth in the Certificate of
Incorporation. All references in these By-Laws to the Certificate of
Incorporation shall be construed to mean the Certificate of Incorporation of the
Corporation as from time to time as amended or restated.
ARTICLE II
Fiscal Year
Except as from time to time otherwise determined by the Directors, the
fiscal year of the Corporation shall in each year end on the last Saturday of
December.
ARTICLE III
Meetings of Stockholders
Section 1. Annual Meetings.
The annual meeting of the Stockholders shall be held at the hour, date
and place fixed by the Board of Directors or a Co-Chairman and stated in the
notice of the meeting, which hour, date and place may subsequently be changed at
any time by vote of the Board of Directors. The purpose for which the annual
meeting is to be held, in addition to those prescribed by law, by the
Certificate of Incorporation or these By-Laws, may be specified by the Board of
Directors or a Co-Chairman. If no annual meeting has been held for a period of
thirteen months after the end of the Corporation's last annual meeting of
stockholders, a special meeting in lieu thereof may be held and such special
meeting shall have for the purposes of these By-Laws or otherwise all the force
and effect of annual meeting. Unless otherwise expressly provided to the
contrary, any and all references hereafter in these By-
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laws to an annual meeting or annual meetings shall also be deemed to refer to
any special meeting(s) in lieu thereof.
Section 2. Special Meetings.
A special meeting of the Stockholders may be called at any time only by
a Co-Chairman, or by a majority of the Directors acting by vote or by written
instrument or instruments signed by them. Such call shall state the hour, date,
place, and purpose of the meeting.
Section 3. Place of Meetings.
All meetings of the Stockholders shall be held at the principal office
of the Corporation in Massachusetts, unless a different place in Massachusetts
or, if permitted by the Certificate of Incorporation, elsewhere in the United
States, is designated by either a Co-Chairman or by a majority vote of the
Directors acting by vote or by written instrument or instruments signed by them,
and stated in the notice of the meeting. Any adjourned session of any meeting of
the Stockholders shall be held at such place within Massachusetts or, if
permitted by the Certificate of Incorporation, elsewhere within the United
States as is designated in the vote of adjournment. At a special meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been stated in the written notice of the
special meeting and otherwise properly brought before the special meeting.
Section 4. Matters to be Considered at an Annual Meeting.
At any annual meeting of stockholders or any special meeting in lieu of
annual meeting of stockholders (the "Annual Meeting"), only such business shall
be conducted, and only such proposals shall be acted upon, as shall have been
properly brought before such Annual Meeting. To be considered as properly
brought before an Annual Meeting, business must be: (a) specified in the notice
of meeting, (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 any holder of record (both as of the time notice of such proposal
is
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given by the stockholder as set forth below and as of the record date for the
Annual Meeting in question) of any shares of capital stock of the Corporation
entitled to vote at such Annual Meeting who complies with the requirements set
forth in this Section 4.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 4 to the
Secretary of the Corporation and (ii) be present at such meeting, either in
person or by a representative. A stockholder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its principal
executive office not less than 60 days nor more than 150 days prior to the
anniversary date of the immediately preceding Annual Meeting (the "Anniversary
Date"); provided, however, that in the event the Annual Meeting is scheduled to
be held on a date more than 30 days before the Anniversary Date or more than 60
days after the Anniversary Date, a stockholder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its principal
executive office not later than the close of business on the later of (A) the
60th day prior to the scheduled date of such Annual Meeting or (B) the 10th day
following the day on which public announcement of the date of such Annual
Meeting is first made by the Corporation.
For all purposes of these By-laws, including without limitation,
Section 3 of Article IV of these By-laws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (iii) a letter or report sent to stockholders of
record of the Corporation at the time of the mailing of such letter or report.
A stockholder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an Annual Meeting (other than a stockholder
proposal made pursuant to Rule 14a-8 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")): (i) a brief description of the business the
stockholder desires to bring before such Annual Meeting
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and the reasons for conducting such business at such Annual Meeting, (ii) the
name and address, as they appear on the Corporation's stock transfer books, of
the stockholder proposing such business, (iii) the class and number of shares of
the Corporation's capital stock beneficially owned by the stockholder proposing
such business, (iv) the names and addresses of the beneficial owners, if any, of
any capital stock of the Corporation registered in such stockholder's name on
such books, and the class and number of shares of the Corporation's capital
stock beneficially owned by such beneficial owners, (v) the names and addresses
of other stockholders known by the stockholder proposing such business to
support such proposal, and the class and number of shares of the Corporation's
capital stock beneficially owned by such other stockholders, and (vi) any
material interest of the stockholder proposing to bring such business before
such meeting (or any other stockholders known to be supporting such proposal) in
such proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 4 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 4 in any material respect, such proposal shall not be presented for
action at the Annual Meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 4. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 4 or that the information provided in a stockholder's
notice does not satisfy the information requirements of this Section 4 in any
material respect, such proposal shall not be presented for action at the Annual
Meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a stockholder proposal was made in
accordance with the requirements of this
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Section 4, the presiding officer shall so declare at the Annual Meeting and
ballots shall be provided for use at the meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this Section 4, 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 4. Nothing in this Section 4 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 5. Notice of Meetings; Adjournments.
Unless otherwise provided by law, by these By-Laws or by the
Certificate of Incorporation, written notice of the place, date and hour of all
meetings of the Stockholders and stating the purposes of the meeting shall be
given at least ten (10) and not more than sixty (60) days before the meeting to
each Stockholder who is entitled to vote thereat and to each Stockholder who is
otherwise entitled by law or by the Certificate of Incorporation to such notice,
by leaving such notice with him or at his residence or usual place of business,
or by mailing it, postage prepaid, and addressed to such Stockholder at the
address of such Stockholder as it appears in the stock transfer records of the
Corporation. Such notice shall be deemed to have been delivered when hand
delivered to such address or when deposited in the mails so addressed with
postage prepaid and shall be given by the Secretary, or in case of the death,
absence, incapacity or refusal of the Secretary, by any other officer or by a
person designated either by the Secretary, by the person or persons calling the
meeting or by the Board of Directors. Whenever notice of a meeting is required
to be given a Stockholder under any provision of law, of the Certificate of
Incorporation, or of these By-Laws, a written waiver thereof, executed before or
after the meeting by such Stockholder or his attorney thereunto authorized, and
filed with the records of the meeting, or the attendance of such stockholder at
such meeting other than for the express purpose of objecting at the beginning of
the meeting to the transaction of any business on grounds that the meeting was
not lawfully called or convened, shall be deemed equivalent to such notice.
Neither the
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business to be transacted at, nor the purpose of, any annual or special meeting
of stockholders need be specified in any written waiver of notice.
The Board of Directors may postpone and reschedule any previously
scheduled annual or special meeting of stockholders, and a record date with
respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting or record date has been sent or made pursuant to
Section 4 of this Article III or Section 3 of Article IV hereof or otherwise. In
no event shall the public announcement of an adjournment, postponement or
rescheduling of any previously scheduled Annual Meeting of Stockholders commence
a new time period for the giving of a stockholder's notice under Section 4 of
Article III and Section 3 of Article IV of these By-laws.
When any meeting is convened, the presiding officer may adjourn the
meeting if (a) no quorum is present for the transaction of business, (b) the
Board of Directors determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information that the Board of
Directors determines has not been made sufficiently or timely available to
stockholders, or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any annual or special
meeting of stockholders is adjourned to another hour, date or place, notice need
not be given of the adjourned meeting other than an announcement at the meeting
at which the adjournment is taken of the hour, date and place to which the
meeting is adjourned.
Section 6. Quorum.
At any meeting of the Stockholders, a quorum shall consist of a
majority of the voting power of all classes of the capital stock of the
Corporation issued and outstanding and entitled to vote at the meeting,
represented in person or by proxy; except that if two or more classes or series
of stock are entitled to vote on any matter as separate classes or series, then
in the case of each such class or series a quorum for that matter shall consist
of a majority of the voting power of all stock of that class or series issued
and outstanding; and except when a larger quorum is required by law, by the
Certificate of Incorporation or by these By-Laws.
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Stock owned directly or indirectly by the Corporation, if any, shall not be
deemed outstanding for this purpose. If less than a quorum is present at any
such meeting, the holders of a majority of the voting power of all classes of
stock issued, outstanding and entitled to vote at such meeting that are present
in person or by proxy at such meeting or the presiding officer of the meeting
may adjourn the meeting from time to time, and the meeting may be held as
adjourned without further other than an announcement at the meeting at which the
adjournment is taken of the hour, date and place to which the meeting is
adjourned. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally noticed. The stockholders present at a duly constituted meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 7. Action by Vote.
When a quorum is present at any meeting, any matter other than
elections that is properly before any annual or special meeting of stockholders
shall be decided by vote of the holders of a majority of the votes of all
classes of stock that are present at such meeting in person or by proxy and
entitled to be cast at the meeting, voting together as a single class, except
where a different vote is required by law, by the Certificate of Incorporation
or by these By-Laws. Any election by stockholders shall be determined by vote of
the holders of a plurality of the votes of all classes of stock that are present
at such meeting in person or by proxy and entitled to be cast at the meeting,
voting together as a single class, except when a different vote is required by
law, by the Certificate of Incorporation or by these By-Laws. No ballot shall be
required for any election unless requested by a Stockholder present or
represented at the meeting and entitled to vote in the election.
Section 8. Voting.
Stockholders entitled to vote shall have one vote for each share of
stock entitled to vote held by them of record according to the records of the
Corporation and a proportionate
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vote for a fractional share, unless otherwise provided by the Certificate of
Incorporation. The Corporation shall not, directly or indirectly, vote any share
of its own stock.
Section 9. Action by Consent.
Any action required or permitted to be taken at any meeting of the
Stockholders may be taken without a meeting if a number equaling not less than
the number of votes that would be necessary to authorize or take such action at
a meeting, of the Stockholders entitled to vote on the matter consent to the
action in a signed writing and the written consents are delivered to the
Corporation and are filed with the records of the meetings of Stockholders and
prompt notice of the taking of such corporate action without a meeting by less
than unanimous written consent is given to those Stockholders who have not
consented in writing. Such consents shall be treated for all purposes as a vote
at a meeting.
Section 10. Proxies.
Stockholders entitled to vote may vote either in person or by proxy in
writing dated not more than six months before the meeting named therein, which
proxies shall be filed with the Secretary or other person responsible to record
the proceedings of the meeting before being voted. Unless otherwise specifically
limited by their terms or as otherwise provided by law, such proxies shall
entitle the holders thereof to vote at any adjournment of such meeting but shall
not be valid after the final adjournment of such meeting. A proxy with respect
to stock held in the name of two or more persons shall be valid if executed by
any one of them, unless at or prior to exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a Stockholder shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. Proxies shall be filed with the
presiding officer of the meeting or his designee before being voted.
Section 11. Presiding Officer.
A Co-Chairman, or in the absence of both such officers, the Chief
Executive Officer, shall preside at all annual or special meetings of
stockholders and shall have the power,
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among other things, to adjourn such meeting at any time and from time to time,
subject to Sections 4 and 6 of this Article III. The order of business and all
other matters of procedure at any meeting of the stockholders shall be
determined by the presiding officer.
Section 12. Voting Procedures and Inspectors of Elections.
The Corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the presiding officer
shall appoint one or more inspectors to act at the meeting. Any inspector may,
but need not, be an officer, employee or agent of the Corporation. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath complying with applicable law. The inspector shall perform such
duties as are required by the Delaware General Corporation Law, as amended from
time to time, including the counting of all votes and ballots. The inspectors
may, with the approval of the presiding officer, appoint or retain other persons
or entities to assist the inspectors in the performance of the duties of the
inspectors. The presiding officer may review all determinations made by the
inspectors, and in so doing the presiding officer shall be entitled to exercise
his sole judgment and discretion and he shall not be bound by any determination
made by the inspector(s). All determinations by the inspector(s) and, if
applicable, the presiding officer, shall be subject to further review by any
court of competent jurisdiction.
ARTICLE IV
Directors
Section 1. Powers.
The business of the Corporation shall be managed by a Board of
Directors who shall have and may exercise all the powers of the Corporation
except as otherwise reserved to the Stockholders by law, by the Certificate of
Incorporation or by these By-Laws. In the event of a vacancy in the Board of
Directors, the remaining Directors, except as otherwise
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provided by law or the Certificate of Incorporation, may exercise the power of
the full Board until the vacancy is filled.
Section 2. Enumeration, Election and Term of Office.
The Board of Directors shall consist of not less than three Directors,
except that whenever there shall be only two Stockholders the number of
Directors shall be not less than two, and whenever there shall be only one
Stockholder the number of Directors shall be not less than one. The number and
classes of Directors shall be as determined from time to time by the
Stockholders and may be enlarged by vote of a majority of the Directors then in
office. The Directors shall be chosen in such manner and for such terms as are
provided in the Certificate of Incorporation. No Director need be a Stockholder,
a citizen of the United States or a resident of the State of Delaware.
A Director may resign at any time by written notice to the Board of
Directors.
Section 3. Director Nominations.
Nominations of candidates for election as Directors of the Corporation
at any Annual Meeting may be made (a) by, or at the direction of, a majority of
the Board of Directors or (b) by any holder of record (both as of the time
notice of such nomination is given by the stockholder as set forth below and as
of the record date for the Annual Meeting in question) of any shares of the
capital stock of the Corporation entitled to vote at such Annual Meeting who
complies with the procedures set forth in this Section 3. Any stockholder who
seeks to make such a nomination or his representative must be present in person
at the Annual
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Meeting. Only persons nominated in accordance with the procedures set forth in
this Section 3 shall be eligible for election as Directors at an Annual Meeting.
Nominations, other than those made by, or at the direction of, the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. A stockholder's
notice shall be timely if delivered to, or mailed to and received by, the
Corporation at its principal executive office not less than 60 days nor more
than 150 days prior to the Anniversary Date; provided, however, that in the
event the Annual Meeting is scheduled to be held on a date more than 30 days
before the Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed and received by,
the Corporation at its principal executive office not later than the close of
business on the later of (i) the 60th day prior to the scheduled date of such
Annual Meeting or (ii) the 10th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
A stockholder's notice to the Secretary shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as
a Director (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation's capital stock which are
beneficially owned by such person on the date of such stockholder notice, and
(iv) the consent of each nominee to serve as a Director if elected. A
stockholder's notice to the Secretary shall further set forth as to the
stockholder giving such notice (i) the name and address, as they appear on the
Corporation's stock transfer books, of such stockholder and of the beneficial
owners (if any) of the Corporation's capital stock registered in such
stockholder's name and the name and address of other stockholders known by such
stockholder to be supporting such nominee(s), (ii) the class and number of
shares of the Corporation's capital stock which are held of record, beneficially
owned or represented by proxy by such stockholder and by any other stockholders
known by such stockholder to be supporting such nominee(s) on the record date
for the Annual Meeting in question (if such
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date shall then have been made publicly available) and on the date of such
stockholder's notice, and (iii) a description of all arrangements or
understandings between such 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 such stockholder.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not timely made in accordance with the terms
of this Section 3 or that the information provided in a stockholder's notice
does not satisfy the informational requirements of this Section 3 in any
material respect, then such nomination shall not be considered at the Annual
Meeting in question. If neither the Board of Directors nor such committee makes
a determination as to whether a nomination was made in accordance with the
provisions of this Section 3, the presiding officer of the Annual Meeting shall
determine whether a nomination was made in accordance with such provisions. If
the presiding officer determines that any stockholder nomination was not timely
made in accordance with the terms of this Section 3 or that the information
provided in a stockholder's notice does not satisfy the informational
requirements of this Section 3 in any material respect, then such nomination
shall not be considered at the Annual Meeting in question. If the Board of
Directors, a designated committee thereof or the presiding officer determines
that a nomination was made in accordance with the terms of this Section 3, the
presiding officer shall so declare at the Annual Meeting and ballots shall be
provided for use at the meeting with respect to such nominee.
Notwithstanding anything to the contrary in the second sentence of the
second paragraph of this Section 3, in the event that the number of Directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 75
days prior to the Anniversary Date, a stockholder's notice required by this
Section 3 shall also be considered timely, but only with respect to
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nominees for any new positions created by such increase, if such notice shall be
delivered to, or mailed to and received by, the Corporation at its principal
executive office not later than the close of business on the 15th day following
the day on which such public announcement is first made by the Corporation.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3. Election of Directors at the Annual Meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such Annual Meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as Directors at
the Annual Meeting in accordance with the procedures set forth in this Section 3
shall be provided for use at the Annual Meeting.
Section 4. Regular Meetings.
Regular meetings of the Board of Directors may be held at such times
and places within or without the State of Delaware as the Board of Directors may
from time to time fix and, when so fixed, no notice thereof need be given,
provided that any Director who is absent when such times and places are fixed
shall be given notice as provided in Section 6 of this Article IV of the fixing
of such times and places, and provided further that any resolution relating to
the holding of regular meetings shall remain in force only until the next annual
meeting of Stockholders. The first meeting of the Board of Directors following
the annual meeting of the Stockholders may be held without notice immediately
after and at the same place as the annual meeting of the Stockholders or the
special meeting held in lieu thereof. If in any year a meeting of the Board of
Directors is not held at such time and place, any action to be taken may be
taken at any later meeting of the Board of Directors with the same force and
effect as if held or transacted at such meeting.
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Section 5. Special Meetings.
Special meetings of the Directors may be held at any time and at any
place designated in the call of the meeting, when called by a Co-Chairman or the
Treasurer or by the Secretary or by two Directors and shall be held at the place
designated in the call thereof.
Section 6. Notices.
Notices of any special meeting of the Directors shall be given by the
Secretary to each Director, (a) by mailing to him, postage prepaid, and
addressed to him at his last known home or business address, a written notice of
such meeting at least forty-eight (48) hours before the meeting or (b) by
delivering such notice to him at least twenty-four (24) hours before the meeting
or (c) or delivering by telephone or by facsimile sent to him at his last known
telephone or facsimile number, notice of such meeting at least twenty-four (24)
hours before the meeting or (c) by sending to him at least twenty-four (24)
hours before the meeting, by prepaid telegram addressed to him at such address,
notice of such meeting. If the Secretary refuses or neglects for more than
twenty-four (24) hours after receipt of a call to give notice of such special
meeting, or if the office of the Secretary refuses or neglects for more than
twenty-four (24) hours after receipt of a call to give notice of such special
meeting, or if the office of the Secretary is vacant or the Secretary is absent
from the State of Delaware, or incapacitated, such notice may be given by the
officer or one of the Directors calling the meeting. Notice need not be given to
any Director if a written waiver of notice, executed by him before or after the
meeting, is filed with the records of the meeting, or to any Director who
attends the meeting without protesting prior thereto or at its commencement the
last of notice to him. A notice or waiver of notice of a Directors' meeting need
not specify the purposes of the meeting.
Section 7. Quorum.
At any meeting of the Directors, a quorum for any election or for the
consideration of any question shall consist of a majority of the Directors then
in office. Whether or not a quorum is present any meeting may be adjourned from
time to time by a majority of the
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votes properly cast upon the question, and the meeting may be held as adjourned
without further notice. When a quorum is present at any meeting, the votes of a
majority of the Directors present shall be requisite and sufficient for election
to any office and shall decide any question brought before such meeting, except
in any case where a larger vote is required by law, by the Certificate of
Incorporation or by these By-Laws.
Section 8. Action by Consent.
Any action required or permitted to be taken at any meeting of the
Directors may be taken without a meeting if all the Directors consent to the
action in writing and the written consents are filed with the records of the
meetings of the Directors. Such consent shall be treated for all purposes as a
vote of the Directors at a meeting.
Section 9. Committees.
The Board of Directors, by vote of a majority of the whole Board, may
elect from its number an Executive Committee or other committees and may
delegate thereto some or all of its powers except those which by law, by the
Certificate of Incorporation or by these By-Laws may not be delegated. Except as
the Board of Directors may otherwise determine, any such committee may make
rules for the conduct of its business, but unless otherwise provided by the
Board of Directors or in such rules, its business shall be conducted so far as
possible in the same manner as is provided by these By-Laws for the Board of
Directors. All members of such committees shall hold such offices at the
pleasure of the Board of Directors. The Board of Directors may abolish any such
committee at any time. Any committee to which the Board of Directors delegates
any of its powers or duties shall keep records of its meetings and shall upon
request report its action to the Board of Directors. The Board of Directors
shall have power to rescind any action of any committee, but no such rescission
shall have retroactive effect.
Section 10. Meeting by Telecommunications.
Members of the Board of Directors or any committee elected thereby may
participate in a meeting of such board or committee by means of a conference
telephone or similar
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communications equipment by means of which all persons participating in a
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at the meeting.
Section 11. Action at Meeting.
At any meeting of the Board of Directors at which a quorum is present,
a majority of the Directors present may take any action on behalf of the Board
of Directors, unless a larger number is required by law, by the Certificate of
Incorporation or by these By-laws.
ARTICLE V
Officers and Agents
Section 1. Enumeration; Qualification.
The officers of the Corporation shall be two Co-Chairmen of the Board
of Directors, one or more Vice Presidents, a Treasurer, a Secretary, and such
other officers, if any, as the incorporators at their initial meeting, or the
Directors from time to time, may in their discretion elect or appoint. The
Corporation may also have such agents, if any, as the incorporators at their
initial meeting, or the Directors from time to time, may in their discretion
appoint. Any officer may be, but none need be, a Director or Stockholder. Any
two or more offices may be held by the same person. Any officer may be required
by the Directors to give bond for the faithful performance of his duties to the
Corporation in such amount and with such sureties as the Directors may
determine. The premium for such bonds may be paid by the Corporation.
Section 2. Powers.
Subject to law, to the Certificate of Incorporation and to the other
provisions of these By-Laws, each officer shall have in addition to the duties
and powers herein set forth, such duties and powers as are commonly incident to
his office and such duties and powers as the Directors may from time to time
designate.
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Section 3. Election.
The Co-Chairmen, Chief Executive Officer, the Vice-Presidents, the
Treasurer and the Secretary shall be elected annually by the Directors at their
first meeting following the annual meeting of the Stockholders. Other officers,
if any, may be elected or appointed by the Board of Directors at said meeting or
at any other time.
Section 4. Tenure.
Except as otherwise provided by law or by the Certificate of
Incorporation or by these By-Laws, the Co-Chairmen, the Vice Presidents, the
Treasurer and the Secretary shall hold office until the first meeting of the
Directors following the next annual meeting of the Stockholders and until their
respective successors are chosen and qualified, and each other officer shall
hold office until the first meeting of the Directors following the next annual
meeting of the Stockholders and until their respective successors are chosen and
qualified, unless a different period shall have been specified by the terms of
his election or appointment, or in each case until he sooner dies, resigns, is
removed or becomes disqualified. Each agent shall retain his authority at the
pleasures of the Directors.
Section 5. Co-Chairmen and Vice Chairman.
The Co-Chairmen jointly shall be the chief executive officers of the
Corporation and shall, subject to the direction of the Board of Directors, have
general supervision and control of its business. The Co-Chairmen shall agree
which of them shall preside, when present, at all meetings of Stockholders and
of the Board of Directors. In the absence of the Co-Chairman so designated to
preside at meetings of the Stockholders and Board of Directors, the other
Co-Chairman, when present, shall so preside. Absent or failing agreement between
the Co-Chairmen as to which of them shall so preside, the Board of Directors
shall designate the Co-Chairman to so preside.
In the absence or disability of either Co-Chairman, his powers or
duties shall be performed by the remaining Co-Chairman, or in the absence or
disability of both Co-Chairmen, by the Vice Chairman, if only one, or, if more
than one, by the one designated
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for the purpose by the Directors. Any Vice Chairman shall have such other powers
and shall perform such other duties as the Board of Directors may from time to
time designate.
Section 6. Vice Presidents.
The Board of Directors may elect one or more Vice Presidents of the
Corporation, with such powers and duties as the Board of Directors may designate
from time to time.
Section 7. Treasurer and Assistant Treasurers.
The Treasurer shall, subject to the direction of the Board of
Directors, have general charge of the financial affairs of the Corporation and
shall cause to be kept accurate books of account. He shall have custody of all
funds, securities, and valuable documents of the Corporation, except as the
Board of Directors may otherwise provide.
In the absence or disability of the Treasurer, his powers, and duties
shall be performed by the Assistant Treasurer, if only one, or, if more than
one, by the one designated for the purpose by the Directors. Any Assistant
Treasurer shall have such other powers and perform such other duties as the
Board of Directors may from time to time designate.
Section 8. Secretary and Assistant Secretaries.
The Secretary shall keep a record of the meetings of the Stockholders,
the Board of Directors and the committees of the Board of Directors. In the
event there is no Secretary or he is absent, an Assistant Secretary shall keep a
record of such meetings. Unless the Directors shall appoint a transfer agent
and/or registrar or other officer or officers for the purpose, the Secretary
shall be charged with the duty of keeping, or causing to be kept, accurate
records of all stock outstanding, stock certificates issued and stock transfers.
In the absence of the Secretary from any meeting of the Stockholders, the Board
of Directors or any committee of the Board of Directors, an Assistant Secretary
if one be elected, otherwise a Temporary Secretary designated by the person
presiding at the meeting, shall perform the duties of the Secretary. An
Assistant Secretary shall have such other powers and perform such other duties
as the Board of Directors may from time to time designate.
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ARTICLE VI
Resignations, Removals and Vacancies
Section 1. Resignations.
Any Director or officer may resign at any time by delivering his
resignation in writing to either Co-Chairman or the Secretary or to a meeting of
the Directors. Such resignation shall take effect at such time as is specified
therein, or if no such time is so specified then upon delivery thereof.
Section 2. Removals.
Subject to the provisions of the Certificate of Incorporation,
Directors, including Directors elected by the Directors to fill vacancies in the
Board, may be removed only for cause and only by vote of the holders of the
majority of the voting power of all shares of voting capital stock of the
Corporation entitled to vote in the election of Directors, provided that the
Directors of a class elected by a particular class of Stockholders may be
removed only by the vote of the holders of a majority of the shares of the
particular class of Stockholders entitled to vote for the election of such
Directors.
For purposes of this Section 2, "cause," with respect to the removal of
any Director shall mean only (i) conviction of a felony, (ii) declaration of
unsound mind by order of court, (iii) gross dereliction of duty, (iv) conviction
of any crime involving moral turpitude, or (v) commission of an action which
constitutes intentional misconduct or a knowing violation of law if such action
in either event results both in an improper substantial personal benefit and a
material injury to the Corporation.
The Directors may remove any officer from office with or without
assignment of cause by vote of a majority of the Directors then in office.
If cause is assigned for removal of any Director or officer, such
Director or officer may be removed only after a reasonable notice and
opportunity to be heard before the body proposing to remove him.
The Directors may terminate or modify the authority of any agent or
employee.
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Except as the Directors may otherwise determine, no Director or officer
who resigns or is removed shall have any right to any compensation as such
Director or officer for any period following his resignation or removal, or any
right to damages on account of such removal whether his compensation be by the
month or by the year or otherwise, provided, however, that the foregoing
provision shall not prevent such Director or officer from obtaining damages for
breach of any contract of employment legally binding upon the Corporation.
Section 3. Vacancies.
The Board of Directors may act notwithstanding a vacancy or vacancies
in its membership. Any vacancy in the Board of Directors, including a vacancy
resulting from resignation of a Director, an enlargement of the Board or a
removal of a Director for cause, may be filled by vote of a majority of the
remaining Directors then in office although less than a quorum or by a sole
remaining Director or, in the absence of such an election by the Directors, by
the Stockholders at a meeting called for the election of Directors and/or for
the removal of one or more Directors and the filling of any vacancy in that
connection. Any Director elected in accordance with this Section 3 shall 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 (whether or not such term
extends beyond the date or dates of any annual meeting or meetings of
stockholders succeeding the date of his or her election) and until his or her
successor is duly elected and qualified.
If the office of any officer becomes vacant, the Directors may elect or
appoint a successor by vote of a majority of the Directors present at the
meeting at which such election or appointment is made.
Each such successor shall hold office for the unexpired term of his
predecessor and until his successor shall be elected or appointed and qualified,
or until he sooner dies, resigns, is removed or becomes disqualified.
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ARTICLE VII
Stock
Section 1. Stock Authorized.
The total number of shares and the par value, if any, or each class of
stock which the Corporation is authorized to issue, and if more than one class
is authorized, a description of each class with the preferences, voting powers,
qualifications and special and relative rights and privileges as to each class
and any series thereof, shall be as stated in the Certificate of Incorporation.
Section 2. Issue of Authorized Unissued Capital Stock.
Any unissued capital stock from time to time authorized under the
Certificate of Incorporation may be issued by vote of Directors. No such stock
shall be issued unless the cash, so far as due, or the property, services or
expenses for which it was authorized to be issued, has been actually received or
incurred by, or conveyed or rendered to, the Corporation, or is in its
possession as surplus.
Section 3. Certificate of Stock.
Each Stockholder shall be entitled to a certificate in form selected by
Board of Directors stating the number and the class and the designator of the
series if any, of the shares held by him. Such certificate shall be signed by a
Co-Chairman or Vice Chairman or Vice President and by the Treasurer or Assistant
Treasurer or Secretary or Assistant Secretary. Such signature may be a facsimile
if the certificate is signed by a transfer agent, or by a registrar, other than
a Director, officer or employee of the Corporation.
Every certificate for shares of stock subject to any restriction on
transfer pursuant to the Certificate of Incorporation, these By-Laws or any
agreement to which the Corporation is a party shall have the restriction noted
conspicuously on the certificate and shall also set forth on the face or back
either the full text of the restriction or a statement of the existence of such
restriction and a statement that the Corporation will furnish a copy to the
holder of such certificate upon written request and without charge. Every
certificate issued when the
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Corporation is authorized to issue more than one class or series of stock shall
set forth on its face or back either the full text or the preferences, voting
powers, qualification and special and relative rights of the shares of each
class and series authorized to be issued or a statement of the existence of such
preferences, powers, qualifications and rights, and a statement that the
Corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Section 4. Transfers.
Subject to the restriction, if any, imposed by the Certificate of
Incorporation, by these By-Laws or any agreement to which the Corporation is a
party, shares of stock shall be transferred on the books of the Corporation only
by the surrender to the Corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment of such shares or by a written power of attorney to sell, assign or
transfer such shares, properly executed, with necessary transfer stamps affixed,
and with such proof that the endorsement, assignment or power of attorney is
genuine and effective as the Corporation or its transfer agent may reasonably
require. Except as may be otherwise required by law, the Corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect thereto regardless of any transfer, pledge or other
disposition of such stock, until the shares have been transferred on the books
of the Corporation in accordance with the requirements of these By-Laws. It
shall be the duty of each Stockholder to notify the Corporation of his post
office address.
Section 5. Lost, Mutilated, or Destroyed Certificates.
Except as otherwise provided by law, the Board of Directors may
determine the conditions upon which a new certificate of stock may be issued in
place of any certificate alleged to have been lost, mutilated or destroyed. It
may, in its discretion, require the owner of a lost, mutilated or destroyed
certificate, or his legal representative, to give a bond, sufficient in its
opinion, with or without surety, to indemnify the Corporation against any
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loss or claim which may arise by reason of the issue of a certificate in place
of such lost, mutilated or destroyed stock certificate.
Section 6. Transfer Agent and Registrar.
The Board of Directors may appoint a transfer agent or a registrar or
both for its capital stock or any class or series thereof and require all
certificates for such stock to bear the signature or facsimile thereof of any
such transfer agent or registrar.
Section 7. Setting Record Date and Closing Transfer Records.
The Board of Directors may fix in advance a date which is (a) not more
than sixty (60) days before (i) the date of any meeting of the Stockholders or
(ii) the date for the payment of any dividend or the making of any distribution
to Stockholders or (iii) the last day on which the consent or dissent of
Stockholders may be effectively expressed for any purpose, as the record date
for determining the Stockholders having the right to notice and to vote at such
meeting, or the right to receive such dividend or distribution, or the right to
give such consent or dissent; (b) not earlier than the date upon which the
resolution fixing the record date is adopted by the Board of Directors; and (c)
not less than ten (10) days before the date of such meeting. If a record date is
set, only Stockholders of record on that date shall have such right
notwithstanding any transfer of stock on the records of the Corporation after
the record date. Without fixing such record date, the Board of Directors may
close the transfer records of the Corporation for all or any part of such sixty
(60) day period.
If no record date is fixed and the transfer books are not closed, then
the record date for determining Stockholders having the right to notice of or to
vote at a meeting of Stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held, and the record date for determining Stockholders for any other purpose
shall be at the close of business on the date on which the Board of Directors
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acts with respect thereto, or as otherwise provided by law, or the Certificate
of Incorporation.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Execution of Papers.
All deeds, leases, transfers, contracts, bonds, notes releases, checks,
drafts and other obligations authorized to be executed on behalf of the
Corporation shall be signed by a Co-Chairman or the Treasurer except as the
Directors may generally or in particular cases otherwise determine.
Section 2. Voting of Securities.
Except as the Directors may generally or in particular cases otherwise
specify, a Co-Chairman or the Treasurer may on behalf of the Corporation vote or
take any other action with respect to shares of stock or beneficial interest of
any other Corporation, or of any association, trust or firm, of which any
securities are held by this Corporation, and may appoint any person or persons
to act as proxy or attorney-in-fact for the Corporation, with or without power
of substitution, at any meeting thereof.
Section 3. Corporate Seal.
The seal of the Corporation shall be a circular die with the name of
the Corporation, the word "Delaware" and the year of its incorporation cut or
engraved thereon, or shall be in such other form as the Board of Directors may
from time to time determine.
Section 4. Corporate Records.
The books and records of the Corporation, and the stock and transfer
records, which shall contain the names of all Stockholders and the record
address and the amount of stock held by each, shall be kept at the principal
office of the Corporation, or at the office of its transfer agent or of its
Secretary or of its Resident Agent. Said copies and records need not all be kept
in the same office. They shall be available, subject to applicable provisions of
laws, during the usual hours of business to the inspection of any Stockholder
for any proper
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purpose reasonably related to such Stockholder's interest as a Stockholder of
the Corporation, but not to secure a list of Stockholders for the purpose of
selling said list or copies thereof or of using the same for a purpose other
than in the interest of the applicant, as a Stockholder, relative to the affairs
of the Corporation.
Section 5. Evidence of Authority.
A certificate by the Secretary or an Assistant or Temporary Secretary
as to any matter relative to the Certificate of Incorporation, By-Laws, records
of the proceedings of the incorporators, Stockholders, Board of Directors, or
any committee of the Board of Directors, or stock and transfer records or as to
any action taken by any person or persons as an officer or agent of the
Corporation, shall as to all persons who rely thereon in good faith be
conclusive evidence of the matters so certified.
ARTICLE IX
Amendments
These By-Laws may be amended or repealed in whole or in part by the
affirmative vote of the holders of a majority of the total votes of all shares
of each class of the Corporation's capital stock at the time outstanding and
entitled to vote at any annual or special meeting of Stockholders, voting
together as a single class, if notice of the substance of the proposed amendment
is stated in the notice of such meeting. The Directors may make, amend, or
repeal the By-Laws, in whole or in part, except with respect to any provision
thereof which by law, the Certificate of Incorporation or these By-Laws require
action by the Stockholders.
Any By-Law adopted, amended or repealed by the Directors may be
repealed, amended or reinstated by the Stockholders entitled to vote on amending
the By-Laws.
