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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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ARIZONA INSTRUMENT CORPORATION*
(Exact name of registrant is specified in its charter)
Delaware 86-0410138
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
4114 East Wood Street, Phoenix, Arizona 85040
(Address of principal executive offices) (Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value per share
(Title of class)
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* The registrant is the successor issuer to Arizona Instrument
Corporation, an Arizona corporation ("AZI Arizona") pursuant to a merger for the
purpose of changing AZI Arizona's state of incorporation from Arizona to
Delaware. AZI Arizona had securities registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended, at the time of the succession in
June 1988.
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered
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The authorized capital stock of Arizona Instrument Corporation, a
Delaware corporation (the "Company"), consists of 10,000,000 shares of common
stock, $.01 par value (the "Common Stock"), and 1,000,000 shares of preferred
stock, $.01 par value. The Company's Common Stock is traded on the Nasdaq
SmallCap Market under the symbol "AZIC."
Common Stock
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The holders of Common Stock are entitled to one vote per share on all
matters to be voted upon by the stockholders. Stockholders are not entitled to
cumulate their votes for the election of directors. Subject to preferences that
may be applicable to any outstanding shares of preferred stock, the holders of
Common Stock are entitled to receive ratably such dividends, if any, as may be
declared from time to time by the Board of Directors out of funds legally
available for that purpose. In the event of a liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities, subject to prior
distribution rights of preferred stock, if any, then outstanding. The Common
Stock has no preemptive or conversion rights or other subscription rights. There
are no redemption or sinking fund provisions applicable to the Common Stock.
When the Company has received the consideration for which the Board of Directors
authorized the issuance of shares, the shares issued for that consideration are
fully paid and nonassessable.
Preferred Stock
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The Company is authorized to issue 1,000,000 shares of undesignated
preferred stock. The Board of Directors will have the authority to issue the
undesignated preferred stock in one or more series and to determine the powers,
preferences and rights and the qualifications, limitations or restrictions
granted to or imposed upon any wholly unissued series of undesignated preferred
stock and to fix the number of shares constituting any series and the
designation of such series, without any further vote or action by the
stockholders. Preferred stock so designated may have voting, conversion,
liquidation preference, redemption, sinking fund provisions and other rights
which are superior to those of the Common Stock. The issuance of preferred stock
may have the effect of delaying, deferring or preventing a change in control of
the Company without further action by the stockholders, may discourage bids for
the Company's Common Stock at a premium over the market price of the Common
Stock and may adversely affect the market price of and the other rights of the
holders of Common Stock. At present, the Company has no plans to issue any of
the preferred stock.
Delaware Law
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The Company has elected not to be governed by the provisions of Section
203 of the Delaware General Corporation Law, which provisions impose certain
restrictions on "business combinations" with "interested persons," as defined
therein.
Certain Voting Provisions
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Stockholders' rights and related matters are governed by Delaware
corporate law, the Certificate of Incorporation (the "Certificate") and the
Bylaws of the Company. Certain provisions of the Certificate and Bylaws which
are summarized below may discourage or have the effect of delaying or deferring
potential changes in control of the Company. The Board of Directors believes
that these provisions are in the best interests of stockholders because they
will encourage a potential acquirer to negotiate with the Board of Directors,
which will be able to consider the interests of all stockholders in a
change-in-control situation. However, the cumulative effect of these terms may
be to make it more difficult to acquire and exercise control of the Company to
make changes in management.
The Certificate provides for the approval of the holders of 75% of the
outstanding voting stock of the Company for a merger or a consolidation with, or
a sale by the Company of all or substantially all of its assets to any person,
firm or corporation, or any group thereof, which owns, directly or indirectly,
5% or more of any class of voting securities of the Company (an "Interested
Person"). In addition, such 75% approval is required with respect to other
transactions involving any such Interested Person, including among other things,
purchase by the Company or any of its subsidiaries of all or substantially all
of the assets or stock of an Interested Person and any other transaction with an
Interested Person which requires stockholder approval under Delaware law. The
75% voting requirement is not applicable to any transaction approved by the
Company's Board of Directors if a majority of the members of the Board of
Directors voting to approve such transaction were elected prior to the date on
which the other party became an Interested Person (the "Continuing Directors").
The Certificate provides that each director will serve for a three-year
term and that approximately one-third of the directors are to be elected
annually. Candidates for directors shall be nominated only by the Board of
Directors or by a stockholder who gives written notice to the Company at least
20 days before the annual meeting. The Company may have two to ten directors as
determined from time to time by the Board, which currently consists of seven
members. Between stockholder meetings, the Board may appoint new directors to
fill vacancies or newly created directorships. The Certificate does not provide
for cumulative
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voting at stockholder meetings for election of directors. Stockholders
controlling at least 50% of the outstanding Common Stock can elect the entire
Board of Directors, while stockholders controlling 49% of the outstanding Common
Stock may not be able to elect any directors. Subject to the rights of the
holders of any shares of preferred stock then outstanding, a director may be
removed from office with or without cause by the affirmative vote of a majority
of the combined voting power of the then outstanding shares of stock entitled to
vote generally in the election of directors.
The Certificate further provides that stockholder action must be taken at a
meeting of stockholders and may not be effected by any consent in writing.
Special meetings of stockholders may be called only by the President, or a
majority of the Board of Directors or by written request of stockholders owning
10% or more of the capital stock issued and outstanding and entitled to vote. If
a stockholder wishes to propose an agenda item for consideration, he must give a
brief description of each item and written notice to the Company not less than
60 or more than 90 days prior to the meeting or, if less than 70 days' prior
disclosure of the meeting date is given, within 10 days of such disclosure, or
such other period of time necessary to comply with applicable federal proxy
solicitation rules or other regulations. Stockholders may need to present their
proposals in advance of the time they receive their notice of meeting since the
Company's Bylaws provide that notice of a stockholders' meeting must be given
not less than ten or more than 60 days prior to the meeting date. If a
stockholder wishes to nominate a candidate for director, a written notice
setting forth designated information must be furnished at least 20 days in
advance of an annual meeting or within 10 days after notice of a special meeting
is given.
The Certificate further provides that the foregoing provisions of the
Certificate and Bylaws may be amended or repealed only with the affirmative vote
of at least 75% of the shares entitled to vote, unless the amendment is
recommended for stockholder approval by a two-thirds majority of the Continuing
Directors. These provisions exceed the majority vote requirement of Delaware law
and are intended to prevent the holders of less than 75% of the voting power
from circumventing the foregoing terms by amending the Certificate and Bylaws.
These provisions, however, enable the holders of 25% of the voting power to
prevent amendments to the Certificate or Bylaws even if they were favored by the
holders of a majority of the voting power.
The effect of such provisions of the Company's Certificate and Bylaws
may be to make more difficult the accomplishment of a merger or other takeover
or change in control of the Company. To the extent that these provisions have
this effect, removal of the Company's incumbent Board of Directors and
management may be rendered more difficult. Furthermore, these provisions may
make it more difficult for stockholders to participate in a tender or exchange
offer for Common Stock and in so doing may diminish the market value of the
Common Stock.
Personal Liability of Directors
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Delaware law authorizes a Delaware corporation to eliminate or limit
the personal liability of a director to the corporation and its stockholders for
monetary damages for breach
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of certain fiduciary duties as a director. The Company believes that such a
provision is beneficial in attracting and retaining qualified directors, and
accordingly the Certificate includes a provision eliminating liability for
monetary damages for any breach of fiduciary duty as a director, except: (1) for
any breach of the duty of loyalty to the Company or its stockholders; (2) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (3) for any transaction from which the director
derived an improper personal benefit; or (4) for unlawful payments of dividends
or unlawful stock repurchases or redemptions as provided in Section 174 of the
Delaware General Corporation law. The foregoing provisions of the Certificate
may reduce the likelihood of derivative litigation against directors and may
discourage or deter stockholders or management from bringing a lawsuit against
directors for breaches of the fiduciary duties, even if such an action, if
successful, might otherwise have benefitted the Company and its stockholders.
Further, the Company has entered into indemnity agreements with all of its
directors and officers for the indemnification of and advancing of expenses to
such persons to the full extent permitted by law. The Company intends to execute
such indemnity agreements with its future officers and directors.
Transfer Agent and Registrar
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The transfer agent and registrar for the Common Stock of the Company is
First Interstate Bank of California.
Item 2. Exhibits
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See Exhibit Index following Signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
ARIZONA INSTRUMENT CORPORATION
(Registrant)
Date: June 26, 1996
By /s/ John P. Hudnall
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John P. Hudnall
President and Director
(Principal Executive Officer)
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ARIZONA INSTRUMENT CORPORATION
(the "Company")
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM 8-A
Filed
Exhibit No. Description Herewith
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(1) Composite of the Company's X
Certificate of Incorporation,
as amended through July 5, 1994
(2) Company's Bylaws X
EI-1
EXHIBIT 1
COMPOSITE
OF
CERTIFICATE OF INCORPORATION
OF
ARIZONA INSTRUMENT CORPORATION
(As Amended Through July 5, 1994)
1. Name. The name of the Corporation is Arizona Instrument Corporation.
2. Registered Office and Agent. The name and address of the registered
office and registered agent of the Corporation is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware.
3. Purpose. The purpose for which this Corporation is organized is the
transaction of any or all lawful activity for which corporations may be
organized under the General Corporation Law of Delaware, as it may be amended
from time to time ("GCL").
4. Initial Business. The Corporation initially intends to conduct this
business of developing, manufacturing and marketing various moisture and other
test control equipment.
5. Authorized Capital. The total number of shares of stock which the
Corporation shall have authority to issue is 11,000,000 consisting of 10,000,000
shares of common stock having a par value of $.01 per share (the "Common Stock")
and 1,000,000 shares of preferred stock having a par value of $.01 per share
(the "Preferred Stock").
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of Article 5, to provide for the issuance
of the shares of Preferred Stock in series, and by filing a certificate pursuant
to the applicable law of the State of Delaware, to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall
include, but not be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
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(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
(c) Whether that series shall have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of such voting
rights;
(d) Whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion rate in such events as the
Board of Directors shall determine.
(e) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(g) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
on that series; and
(h) Any other relative rights, preferences and limitations of
that series.
6. Classifications and Terms of Directors. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors consisting of not less than two directors nor more than ten directors,
the exact number of directors to be determined from time to time by resolution
adopted by the Board of Directors. The directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. The terms of the initial Class I
directors shall terminate on the date of the 1989 annual meeting of
stockholders; the term of the initial Class II directors shall terminate on the
date of the 1990 annual meeting of stockholders; and the term of the initial
Class III directors shall terminate on the date of the 1991 annual meeting of
stockholders. At each annual meeting of stockholders beginning in 1989,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the class so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional directors of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining terms of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his term expires and until
his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Any
vacancy on the Board of Directors, howsoever resulting (including without
limitation newly created directorships) may be filled by a majority of the
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directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy shall hold office for a term
that shall coincide with the term of the class to which such director shall have
been elected.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article Five applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article Six unless expressly provided by such terms.
7. Removal of Directors. Subject to the rights, if any, of the holders
of shares of Preferred Stock then outstanding, any or all of the directors of
the Corporation may be removed from office at any time, with or without cause
and only by the affirmative vote of the holders of a majority of the outstanding
shares of the Corporation then entitled to vote generally in the election of
directors, considered for purposes of this Article 7 as one class.
8. Election of Directors. Elections of directors at an annual or
special meeting of stockholders shall be by written ballot unless the Bylaws of
the Corporation shall otherwise provide. Advance notice of stockholder
nominations for the election of directors shall be given in the manner provided
by the Bylaws of the Corporation.
9. Action by Consent of Stockholder. Any action required or permitted
to be taken by the stockholders must be effected at a duly called and noticed
annual or special meeting of such stockholders and may not be effected by any
consent in writing by such stockholders.
10. Special Meetings. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time only by the
President, or the Board of Directors pursuant to a resolution approved by a
majority of the whole Board of Directors, or at the request in writing of
shareholders owning 10% in amount of the capital stock issued and outstanding
and entitled to vote. Special meetings of the stockholders may not be called by
any other person or persons. Business transacted at any special meeting of the
stockholders shall be limited to the purposes stated in the notice of such
meeting.
11. Special Voting Requirements.
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(a) Except as set forth in Section (b) of this Article 11, the
affirmative vote of the holders of 75% of the outstanding stock of the
Corporation entitled to vote shall be required for:
(1) any merger or consolidation to which the Corporation, or
any of its subsidiaries, and an Interested Person (as hereinafter defined) are
parties;
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(2) any sale or other disposition by the Corporation, or any
of its subsidiaries, of all or substantially all of its assets to an Interested
Person;
(3) any purchase or other acquisition by the Corporation, or
any of its subsidiaries, of all or substantially all of the assets or stock of
an Interested Person; and
(4) any other transactions with an Interested Person which
requires the approval of the stockholders of the Corporation under the GCL, as
in effect from time to time.
(b) The provisions of Section (a) of this Article 11 shall not be
applicable to any transaction described therein if such transaction is approved
by resolution of the Corporation's Board of Directors, provided that a majority
of the members of the Board of Directors voting for the approval of such
transaction are Continuing Directors. The term "Continuing Directors" shall mean
any member of the Board of Directors of the Corporation who is not the
Interested Person, and not an affiliate, associate, representative or nominee of
the Interested Person or of such an affiliate or associate, that is involved in
the relevant transaction, and (A) was a member of the Board of Directors prior
to the date that the person, firm or corporation, or any group thereof, with
whom such transaction is proposed, became an Interested Person or (B) whose
initial election as a director of the Corporation succeeds a Continuing Director
or is a newly created directorship, and in either case was recommended by a
majority vote of the Continuing Directors then in office.
(c) As used in this Article 11, the term "Interested Person" shall mean
any person, firm or corporation, or any group thereof, acting or intending to
act in concert, including any person directly or indirectly controlling or
controlled by or under direct or indirect common control with such person, firm
or corporation or group, which owns of record or beneficially, directly or
indirectly, five percent (5%) or more of any class of voting securities of the
Corporation.
12. Indemnification of Officers and Directors.
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A. The Corporation shall indemnify to the full extent authorized or
permitted by law (as now or hereafter in effect) any person made, or threatened
to be made, a defendant or witness to any action, suit or proceeding (whether
civil or criminal or otherwise) by reason of the fact that he, his testator or
intestate, is or was a director or officer of the Corporation by reason of the
fact that such director or officer, at the request of the Corporation, is or was
serving any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in any capacity. Nothing contained herein
shall affect any rights to indemnification to which employees other than
directors and officers may be entitled by law. No amendment or repeal of this
Section A of Article 12 shall apply to or have any effect on any right to
indemnification provided hereunder with respect to any acts or omissions
occurring prior to such amendment or repeal.
B. No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent
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provided by applicable law (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of the law,
(iii) pursuant to Section 174 of the GCL, or (iv) for any transaction from which
such director derived an improper personal benefit. No amendment to or repeal of
this Section B of Article 12 shall apply to or have an effect on the liability
or alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
C. In furtherance and not in limitation of the powers conferred by
statute:
(i) the Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against any liability asserted
against him and incurred by him in any such capacity or arising out if his
status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of law; and
(ii) the Corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of
credit, surety bonds and/or other similar arrangements), as well as enter into
contracts providing indemnification to the full extent authorized or permitted
by law and including as part thereof provisions with respect to any or all of
the foregoing to ensure the payment such amounts as may become necessary to
effect indemnification as provided therein, or elsewhere.
13. Bylaws. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized by majority
vote of the whole Board of Directors to adopt, repeal, alter, amend or rescind
the bylaws of the Corporation. In addition, the Bylaws of the Corporation may be
adopted, repealed, altered, amended or rescinded by the affirmative vote of 75%
of the outstanding stock of the Corporation entitled to vote thereon; provided,
if the Continuing Directors, as defined in Article 11 shall by a two thirds
favorable vote of such Continuing Directors have adopted a resolution approving
the amendment or repeal proposal and have determined to recommend it for
approval by the holders of stock entitled to vote thereon, then the vote
required shall be the affirmative vote of the holders of at least a majority of
the outstanding shares entitled to vote thereon.
14. Certificate. The corporation specifically elects not to be governed
by Section 203 of the GLC. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by statute and the Certificate of
Incorporation, and all rights conferred on stockholders herein are granted
subject to the reservations in Article 14. Provided, however, the affirmative
vote of the holders of at least 75% of the voting power of the outstanding stock
of the Corporation entitled to vote thereon, shall be required to alter, amend,
or adopt any provision inconsistent with or repeal Articles 6, 7, 8, 9, 10, 11,
12 and 13 and this Article 14; provided, if the Continuing Directors, as defined
in Article 11 shall by a two thirds favorable vote of such Continuing Directors
have adopted a resolution approving the amendment or repeal proposal and have
determined to recommend it for approval by the
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holders of stock entitled to vote thereon, then the vote required shall be the
affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote thereon.
15. Incorporator. The name and address of the sole incorporator is as
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follows:
John Hudnall
1100 East University Drive
Tempe, Arizona 85281
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EXHIBIT 2
BYLAWS OF
ARIZONA INSTRUMENT CORPORATION
(As Amended Through June 30, 1994)
ARTICLE I
OFFICES
SECTION 1. Registered Office.
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The registered office of the Corporation in the State of
Delaware shall be in the City of Wilmington, County of New Castle, State of
Delaware.
SECTION 2. Other Offices.
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The Corporation also may 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
STOCKHOLDERS
SECTION 1. Stockholder Meetings.
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(a) Time and Place of Meetings. Meetings of the stockholders
shall be held at such times and places, either within or without the State of
Delaware, as may from time to time be fixed by the Board of Directors and stated
in the notices or waivers of notice of such meetings.
(b) Annual Meeting. The annual meeting of the stockholders
shall be held during the third week of the month of May in each year as
designated by the Board of Directors, or at such other date as may be designated
by the Board of Directors, for the election of directors and the transaction of
such other business properly brought before such annual meeting of the
stockholders and within the powers of the stockholders.
(c) Special Meetings. Special meetings of the stockholders of
the Corporation for any purpose or purposes may be called at any time only by
the President, or the Board of Directors pursuant to a resolution approved by a
majority of the whole Board of Directors, or at the request in writing of
shareholders owning 10% or more in amount of the capital stock issued and
outstanding and entitled to
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vote. Business transacted at any special meeting of the stockholders shall be
limited to the purposes stated in the notice of such meeting.
(d) Notice of Meetings. Except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, written notice of each meeting
of the stockholders shall be given not less than ten days nor more than sixty
days before the date of such meeting to each stockholder entitled to vote
thereat, directed to such stockholder's address as it appears upon the books of
the Corporation, such notice to specify the place, date, hour and purpose or
purposes of such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, postage prepaid, addressed to the
stockholder at his address as it appears on the stock ledger of the Corporation.
When a meeting of the stockholders is adjourned to another time and/or place,
notice need not be given of such adjourned meeting if the time and place thereof
are announced at the meeting of the stockholders at which the adjournment is
taken, unless the adjournment is for more than thirty days or unless after the
adjournment a new record date is fixed for such adjourned meeting, in which
event a notice of such adjourned meeting shall be given to each stockholder of
record entitled to vote thereat. Notice of the time, place and purpose of any
meeting of the stockholders may be waived in writing either before or after such
meeting and will be waived by any stockholder by such stockholder's attendance
thereat in person or by proxy. Any stockholder so waiving notice of such a
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
(e) Quorum. Except as otherwise required by law, the
Certificate of Incorporation or these Bylaws, the holders of not less than a
majority of the shares entitled to vote at any meeting of the stockholders,
present in person or by proxy, shall constitute a quorum and the affirmative
vote of the majority of such quorum shall be deemed the act of the stockholders.
If a quorum shall fail to attend any meeting of the stockholders, the presiding
officer of such meeting may adjourn such meeting from time to time to another
place, date or time, without notice other than announcement at such meeting,
until a quorum is present or represented. At such adjourned meeting at which a
quorum is present or represented, any business may be transacted that might have
been transacted at the meeting of the stockholders as originally noticed. The
foregoing notwithstanding, if a notice of any adjourned special meeting of the
stockholders is sent to all stockholders entitled to vote thereat which states
that such adjourned special meeting will be held with those present in person or
by proxy constituting a quorum, then, except as otherwise required by law, those
present at such adjourned special meeting of the stockholders shall constitute a
quorum and all matters shall be determined by a majority of the votes cast at
such special meeting.
SECTION 2. Determination of Stockholders Entitled to Notice and to Vote.
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To determine the stockholders entitled to notice of any
meeting of the stockholders or to vote thereat, the Board of Directors may fix
in advance a record date as provided in Article VII, Section 1 of these Bylaws,
or if no record date is fixed by the Board of Directors, a record date shall be
determined as provided by law.
SECTION 3. Voting.
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(a) Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, each stockholder present in person or by proxy at
a meeting of the stockholders shall be entitled to one vote
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for each full share of stock registered in the name of such stockholder at the
time fixed by the Board of Directors or by law at the record date of the
determination of stockholders entitled to vote at such meeting.
(b) Every stockholder entitled to vote at a meeting of the
stockholders may do so either (i) in person or (ii) by one or more agents
authorized by a written proxy executed by the person or such stockholder's duly
authorized agent, whether by manual signature, typewriting, telegraphic
transmission or otherwise. Every proxy must be executed in writing (which shall
include telegraphing or cabling) by the stockholder or by his duly authorized
agent, but no proxy shall be voted on after three years from its date, unless
the proxy provides for a longer period.
(c) Voting may be by voice or by ballot as the presiding
officer of the meeting of the stockholders shall determine. On a vote by ballot,
each ballot shall be signed by the stockholder voting, or by such stockholder's
proxy, and shall state the number of shares voted.
(d) In advance of or at any meeting of the stockholders, the
Chairman of the Board or President may appoint one or more persons as inspectors
of election (the "Inspectors") to act at such meeting. Such Inspectors shall
take charge of the ballots at such meeting. After the balloting on any question,
the Inspectors shall count the ballots cast and make a written report to the
secretary of such meeting of the results. Subject to the direction of the
chairman of the meeting, the duties of such Inspectors may further include
without limitation: determining the number of shares outstanding and the voting
power of each; the shares represented at the meeting; the existence of a quorum;
the authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
of consents and determining when the polls shall close; determining the result;
and doing such acts as may be proper to conduct the election or vote with
fairness to all stockholders. An Inspector need not be a stockholder of the
Corporation and any officer of the Corporation may be an Inspector on any
question other than a vote for or against such officer's election to any
position with the Corporation or on any other questions in which such officer
may be directly interested. If there are three or more Inspectors, the
determination, report or certificate of a majority of such Inspectors shall be
effective as if unanimously made by all Inspectors.
SECTION 4. List of Stockholders.
---------------------
The officer who has charge of the stock ledger of the
Corporation shall prepare and make available, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote
thereat, arranged in alphabetical order, showing the address of and the number
of shares registered in the name of each such stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to such
meeting, either at a place within the city where such meeting is to be held and
which place shall be specified in the notice of such meeting, or, if not so
specified, at the place where such meeting is to be held. The list also shall be
produced and kept at the time and place of the meeting of the stockholders
during the whole time thereof, and may be inspected by any stockholder who is
present.
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SECTION 5. Action by Consent of Stockholders.
----------------------------------
Any action required or permitted to be taken by the
stockholders must be effected at a duly called annual or special meeting of such
stockholders and may not be effected by any consent in writing by such
stockholders.
SECTION 6. Conduct of Meetings.
--------------------
The chairman of the meeting shall have full and complete
authority to determine the agenda, to set the procedures and order the conduct
of meetings, all as deemed appropriate by such person in his sole discretion
with due regard to the orderly conduct of business.
SECTION 7. Notice of Agenda Matters.
-------------------------
If a stockholder wishes to present to the Chairman of the
Board or the President an item for consideration as an agenda item for a meeting
of stockholders, he must give timely notice to the Secretary of the Corporation
and give a brief description of the business desired to be brought before the
meeting. To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation, not less than
sixty days nor more than ninety days prior to the meeting; provided, however,
that in the event that less than seventy days' notice or prior public disclosure
of the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the date on which such notice of the date of
the meeting was mailed or such public disclosure was made and provided further
that any other time period necessary to comply with federal proxy solicitation
rules or other regulations shall be deemed to be timely.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers.
---------------
Unless otherwise restricted by law, the Certificate of
Incorporation or these Bylaws as to action which shall be authorized or approved
by the stockholders, and subject to the duties of directors as prescribed by
these Bylaws, all corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation shall be controlled by, the
Board of Directors. Without prejudice to such general powers, but subject to the
same limitations, the directors shall have the following powers:
(a) To select and remove all the other officers, agents and
employees of the Corporation, prescribe such powers and duties for them
as may not be inconsistent with law, the Certificate of Incorporation
or these Bylaws, fix their compensation and require from them security
for faithful service.
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<PAGE>
(b) To conduct, manage, and control the affairs and business
of the Corporation and to make such rules and regulations therefor not
inconsistent with law, the Certificate of Incorporation or these
Bylaws, as they may deem best.
(c) To change the principal office for the transaction of the
business of the Corporation from one location to another as provided in
Article I, Section 2, hereof; to designate any place within or without
the State of Delaware for the holding of any stockholders' meeting or
meetings and to adopt, make and use a corporate seal, and to prescribe
the forms of certificates of stock, and to alter the form of such seal
and of such certificates from time to time, as in their judgment they
may deem best, provided such seal and such certificates shall at all
times comply with the provisions of law.
(d) To authorize the issue of shares of stock of the
Corporation from time to time, upon such terms as may be lawful, in
consideration of money paid, labor done or services actually rendered,
debts or securities cancelled, or tangible or intangible property
actually received or, in the case of shares issued as a dividend,
against amounts transferred from surplus to stated capital.
(e) To borrow money and incur indebtedness for the purposes of
the Corporation, and to cause to be executed and delivered therefor, in
the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations or other evidences of debt
and securities therefor.
(f) To adopt and put into effect such stock purchase plans and
stock option plans, both of general and restricted stock option plan
character, as they may deem advisable for the benefit of employees of
the Corporation, and to issue stock in accordance with and pursuant to
any such plan.
SECTION 2. Election of Directors.
----------------------
(a) Number, Qualification and Term of Office. The authorized
number of directors of the Corporation shall be fixed from time to time by the
Board of Directors, but shall not be less than two nor more than ten. The exact
number of directors shall be determined from time to time, either by a
resolution or Bylaw provision duly adopted by a majority of the whole Board of
Directors. Directors need not be stockholders.
(b) Resignation. Any director may resign from the Board of
Directors at any time by giving written notice to the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or if the time when such resignation shall become effective shall not
be so specified, then such resignation shall take effect immediately upon its
receipt by the Secretary; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
(c) Nomination of Directors. Candidates for director of the
Corporation shall be nominated only either by:
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(i) the Board of Directors or a committee appointed
by the Board of Directors, or
(ii) nomination at any stockholders' meeting by or on
behalf of any stockholder entitled to vote thereat; provided, that
written notice of such stockholder's intent to make such nomination or
nominations shall have been given, either by personal delivery or by
United States certified mail, postage prepaid, to the Secretary of the
Corporation not later than (l) with respect to an election to be held
at an annual meeting of the stockholders, twenty days in advance of
such annual meeting, and (2) with respect to an election to be held at
a special meeting of the stockholders for the election of directors,
the close of business on the tenth day following the date on which
notice of such special meeting is first given to the stockholders
entitled to vote thereat. Each such notice by a stockholder shall set
forth: (l) the name and address of the (A) stockholder who intends to
make the nomination and (B) person or persons to be nominated; (2) 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 nominate the person or persons
specified in the notice; (3) a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (4) such
other information regarding each nominee proposed by such stockholder
as would be required to be included in a proxy or information statement
filed with the Securities and Exchange Commission pursuant to the proxy
rules promulgated under the Securities Exchange Act of 1934, as
amended, or any successor statute thereto, had the nominee been
nominated, or intended to be nominated, by the Board of Directors; and
(5) the manually signed consent of each nominee to serve as a director
of the Corporation if so elected. The presiding officer of the meeting
of the stockholders may refuse to acknowledge the nominee of any person
not made in compliance with the foregoing procedure.
(d) Preferred Stock Provisions. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of stock issued by the
Corporation having a preference over the Common Stock as to dividends or upon
liquidation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of the stockholders, the election,
term of office, filling of vacancies, nomination, terms of removal and other
features of such directorships shall be governed by the terms of Article Five of
the Certificate of Incorporation and the resolution or resolutions establishing
such class or series adopted pursuant thereto.
SECTION 3. Meetings of the Board of Directors.
-----------------------------------
(a) Regular Meetings. Regular meetings of the Board of
Directors shall be held without call at the following times:
(i) at such times as the Board of Directors shall from time to
time by resolution determine; and
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(ii) one-half hour prior to any special meeting of the
stockholders and immediately following the adjournment of any annual or
special meeting of the stockholders.
Notice of all such regular meetings hereby is dispensed with.
(b) Special Meetings. Special meetings of the Board of
Directors may be called by the President, or the Board of Directors pursuant to
a resolution approved by a majority of the whole Board of Directors. Notice of
the time and place of special meetings of the Board of Directors shall be given
by the Secretary or an Assistant Secretary of the Corporation, or by any other
officer authorized by the Board of Directors. Such notice shall be given to each
director personally or by mail, messenger, telephone or telegraph at such
director's business or residence address. Notice by mail shall be deposited in
the United States mail, postage prepaid, not later than the fifth day prior to
the date fixed for such special meeting. Notice by telephone or telegraph shall
be sent, and notice given personally or by messenger shall be delivered, at
least twenty-four hours prior to the time set for such special meeting. Notice
of a special meeting of the Board of Directors need not contain a statement of
the purpose of such special meeting.
(c) Adjourned Meetings. A majority of directors present at any
regular or special meeting of the Board of Directors or any committee thereof,
whether or not constituting a quorum, may adjourn any meeting from time to time
until a quorum is present or otherwise. Notice of the time and place of holding
any adjourned meeting shall not be required if the time and place are fixed at
the meeting adjourned.
(d) Place of Meetings. Unless a resolution of the Board of
Directors or the written consent of all members of the Board of Directors given
either before or after the meeting and filed with the Secretary of the
Corporation designates a different place within or without the State of
Delaware, meetings of the Board of Directors, both regular and special, shall be
held at the Corporation's principal executive offices.
(e) Participation by Telephone. Members of the Board of
Directors or any committee may participate in any meeting of the Board of
Directors or committee through the use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another, and such participation shall constitute presence in person
at such meeting.
(f) Quorum. At all meetings of the Board of Directors or any
committee thereof, a majority of the total number of directors of the entire
then authorized Board of Directors or such committee shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any such meeting at which there is a quorum shall be the act of the
Board of Directors or any committee, except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws. A meeting of
the Board of Directors or any committee at which a quorum initially is present
may continue to transact business notwithstanding the withdrawal of directors so
long as any action is approved by at least a majority of the required quorum for
such meeting.
(g) Waiver of Notice. The transactions of any meeting of the
Board of Directors or any committee, however called and noticed or wherever
held, shall be as valid as though had at a meeting duly held after regular call
and notice, if a quorum be present and if, either before or after the meeting,
each of the directors not present signs a written waiver of notice, or a consent
to hold such meeting, or an approval
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of the minutes thereof. All such waivers, consents or approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
SECTION 5. Action Without Meeting.
-----------------------
Any action required or permitted to be taken by the Board of
Directors at any meeting or at any meeting of a committee may be taken without a
meeting if all members of the Board of Directors or such committee consent in
writing and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or such committee.
SECTION 6. Compensation of Directors.
--------------------------
Unless otherwise restricted by law, 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 committees of the Board of Directors may be allowed like compensation for
attending committee meetings.
SECTION 7. Committees of the Board.
------------------------
(a) Committees. The Board of Directors may, by resolution
adopted by a majority of the Board of Directors, designate one or more
committees of the Board of Directors, each committee to consist of one or more
directors. Each such committee, to the extent permitted by law, the Certificate
of Incorporation and these Bylaws, shall have and may exercise such of the
powers of the Board of Directors in the management and affairs of the
Corporation as may be prescribed by the resolutions creating such committee.
Such committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors. The Board of
Directors 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 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. The Board of Directors shall have the
power, at any time for any reason, to change the members of any such committee,
to fill vacancies, and to discontinue any such committee.
(b) Minutes of Meetings. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
(c) Audit Committee. The Board of Directors shall appoint an
Audit Committee consisting of at least two directors, none of whom shall be
employees of the Corporation. The Audit Committee shall review the financial
affairs and procedures of the Corporation from time to time with management and
meet with the auditors of the Corporation to review the financial statements and
procedures.
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<PAGE>
(d) Executive Committee. There may be an executive committee
consisting of at least three members of the Board of Directors elected by the
whole Board. Members of the executive committee shall serve at the pleasure of
the Board of Directors and each member of the executive committee may be removed
with or without cause at any time by the Board of Directors. Vacancies shall be
filled by the Board of Directors. The executive committee may exercise the
powers of the Board of Directors and the management of the business and affairs
of the corporation, but shall not possess any authority prohibited to it by law.
SECTION 8. Interested Directors.
---------------------
In addition to the statutory and corporate common law of
Delaware, no contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if (i) the
material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
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ARTICLE IV
OFFICERS
SECTION 1. Officers.
---------
(a) Number. The officers of the Corporation shall be chosen by
the Board of Directors and may include a Chairman of the Board of Directors (who
must be a director as chosen by the Board of Directors) and shall include a
President, a Vice President, a Secretary and a Treasurer. The Board of Directors
also may appoint one or more Assistant Secretaries or Assistant Treasurers and
such other officers and agents with such powers and duties as it shall deem
necessary. Any Vice President may be given such specific designation as may be
determined from time to time by the Board of Directors. Any number of offices
may be held by the same person, unless otherwise required by law, the
Certificate of Incorporation or these Bylaws. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
(b) Election and Term of Office. The officers shall be elected
annually by the Board of Directors at its regular meeting following the annual
meeting of the stockholders and each officer shall hold office until the next
annual election of officers and until such officer's successor is elected and
qualified, or until such officer's death, resignation or removal. Any officer
may be removed at any time, with or without cause, by a vote of the majority of
the whole Board of Directors. Any vacancy occurring in any office may be filled
by the Board of Directors.
(c) Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors or a committee thereof from time to
time.
SECTION 2. Chairman of the Board of Directors.
-----------------------------------
The Chairman of the Board of Directors, if there be a
Chairman, shall preside at all meetings of the stockholders and the Board of
Directors and shall have such other power and authority as may from time to time
be assigned by the Board of Directors.
SECTION 3. President.
----------
The President shall be the chief executive officer of the
Corporation, shall preside at all meetings of the stockholders and the Board of
Directors (if a Chairman of the Board has not been elected), and shall see that
all orders and resolutions of the Board of Directors are carried into effect.
Subject to the provisions of these Bylaws and to the direction of the Board of
Directors, the President shall have the general and active management of the
business of the Corporation, may execute all contracts and any mortgages,
conveyances or other legal instruments in the name of and on behalf of the
Corporation, but this provision shall not prohibit the delegation of such powers
by the Board of Directors to some other officer, agent or attorney-in-fact of
the Corporation.
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SECTION 4. 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 powers and perform such other duties as from
time to time may be prescribed for them, respectively, by the Board of Directors
or these Bylaws.
SECTION 5. Secretary and Assistant Secretaries.
------------------------------------
The Secretary shall record or cause to be recorded, in books
provided for the purpose, minutes of the meetings of the stockholders, the Board
of Directors and all committees of the Board of Directors; see that all notices
are duly given in accordance with the provisions of these Bylaws as required by
law; be custodian of all corporate records (other than financial) and of the
seal of the Corporation, and have authority to affix the seal to all documents
requiring it and attest to the same; give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors;
and, in general, shall perform all duties incident to the office of Secretary
and such other duties as may, from time to time, be assigned to him by the Board
of Directors or by the President. At the request of the Secretary, or in the
Secretary's absence or disability, any Assistant Secretary shall perform any of
the duties of the Secretary and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Secretary.
SECTION 6. Treasurer and Assistant Treasurers.
-----------------------------------
The Treasurer shall keep or cause to be kept the books of
account of the Corporation and shall render statements of the financial affairs
of the Corporation in such form and as often as required by the Board of
Directors or the President. The Treasurer, subject to the order of the Board of
Directors, shall have custody of all funds and securities of the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements. The
Treasurer shall perform all other duties commonly incident to his office and
shall perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time. At the request of
the Treasurer, or in the Treasurer's absence or disability, any Assistant
Treasurer may perform any of the duties of the Treasurer and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Treasurer. Except where by law the signature of the Treasurer is required, each
of the Assistant Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other instruments of the
Corporation.
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ARTICLE V
INDEMNIFICATION AND INSURANCE
SECTION 1. Actions Against Directors and Officers.
---------------------------------------
The Corporation shall indemnify to the full extent permitted
by, and in the manner permissible under, the laws of the State of Delaware any
person made, or threatened to be made, a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that such person or such person's testator or intestate is or was a director or
officer of the Corporation or any predecessor of the Corporation, or served any
other enterprise as a director or officer at the request of the Corporation or
any predecessor of the Corporation.
SECTION 2. Contract.
---------
The provisions of Section 1 of this Article V shall be deemed
to be a contract between the Corporation and each director and officer who
serves in such capacity at any time while such Bylaw is in effect, and any
repeal or modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any
action, suit or proceeding theretofore or thereafter based in whole or in part
upon any such state of facts.
SECTION 3. Nonexclusivity.
---------------
The rights of indemnification provided by this Article V shall
not be deemed exclusive of any other rights to which any director or officer of
the Corporation may be entitled apart from the provisions of this Article V.
SECTION 4. Indemnification of Employees and Agents.
----------------------------------------
The Board of Directors in its discretion shall have the power
on behalf of the Corporation to indemnify any person, other than a director or
officer, made a party to any action, suit or proceeding by reason of the fact
that such person or such person's testator or intestate, is or was an employee
or agent of the Corporation.
SECTION 5. Insurance.
----------
Upon a resolution or resolutions duly adopted by the Board of
Directors of the Corporation, the Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation against any liability asserted against such person and
incurred by him in any capacity, or arising out of his capacity as such, whether
or not the Corporation would have the power to indemnify such person against
such liability under the provisions of applicable law, the Certificate of
Incorporation or these Bylaws.
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ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares.
------------------------
Unless otherwise provided by a resolution of the Board of
Directors, the shares of the Corporation shall be represented by a certificate.
The certificates of stock of the Corporation shall be numbered and shall be
entered in the books of the Corporation as they are issued. They shall exhibit
the holder's name and number of shares and shall be signed by or in the name of
the Corporation by (a) the Chairman of the Board of Directors, the President or
any Vice President and (b) the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimile. In case any officer of the Corporation, transfer agent or registrar
who has signed, or whose facsimile signature has been placed upon such
certificate, shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may nevertheless be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issuance.
SECTION 2. Classes of Stock.
-----------------
(a) 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 or rights shall be set forth in
full or summarized on the face or back of the certificate that 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 the State
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate that 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 or rights.
(b) Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law (including Sections 151, 156, 202(a),
or 218(a) of the General Corporation Law of the State of Delaware) or 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
or rights.
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SECTION 3. Transfer.
---------
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.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the Corporation.
SECTION 4. Record Owner.
-------------
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 to 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.
SECTION 5. Lost Certificates.
------------------
The Board of Directors may direct a new certificate or
certificates or uncertificated shares 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 or uncertificated
shares, 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 the Board of Directors shall require and 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.
ARTICLE VII
MISCELLANEOUS
SECTION 1. Record Date.
------------
(a) 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, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days prior to the
date of such meeting nor more than sixty days prior to any other action. If not
fixed by the Board of Directors, the record date shall be determined as provided
by law.
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(b) A determination of stockholders of record entitled to
notice of or to vote at a meeting of the stockholders shall apply to any
adjournments of the meeting, unless the Board of Directors fixes a new record
date for the adjourned meeting.
(c) Holders of stock on the record date are entitled to notice
and to vote or to receive the dividend, distribution or allotment of rights or
to exercise the rights, as the case may be, notwithstanding any transfer of the
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by law, the Certificate of Incorporation or
these Bylaws.
SECTION 2. Execution of Instruments.
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The Board of Directors may, in its discretion, determine the
method and designate the signatory officer or officers, or other persons, to
execute any corporate instrument or document or to sign the corporate name
without limitation, except where otherwise provided by law, the Certificate of
Incorporation or these Bylaws. Such designation may be general or confined to
specific instances.
SECTION 3. Voting of Securities Owned by the Corporation.
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All stock and other securities of other corporations held by
the Corporation shall be voted, and all proxies with respect thereto shall be
executed, by the person so authorized by resolution of the Board of Directors,
or, in the absence of such authorization, by the President.
SECTION 4. Corporate Seal.
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The Corporation shall have a corporate seal in such form as
shall be prescribed and adopted by the Board of Directors.
SECTION 5. Construction and Definitions.
Unless the context requires otherwise, the general provisions,
rules of construction and definitions in the General Corporation Law of the
State of Delaware and the Certificate of Incorporation shall govern the
construction of these Bylaws.
SECTION 6. Amendments.
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These Bylaws may be altered, amended or repealed as set forth
in the Certificate of Incorporation.
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