<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 20, 1998
PURCHASESOFT, INC. (formerly known as GREENTREE SOFTWARE, INC.)
---------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
DELAWARE
--------
(State or Other Jurisdiction of Incorporation)
0-11791 13-2897997
----------------------------------------------------
(Commission File Number) (IRS Employer
Identification No.)
7301 Ohms Lane, Suite 220, Edina, Minnesota 55439
----------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(612) 941-1500
--------------
<PAGE>
-2-
ITEM 5. OTHER EVENTS.
In November, 1998, PurchaseSoft, Inc. (the "Registrant"), a Delaware
corporation and wholly-owned subsidiary of Greentree Software, Inc.
("Greentree"), a New York corporation, entered into an Agreement and Plan of
Merger (the "Plan") with Greentree pursuant to which the Registrant and
Greentree agreed that Greentree shall be merged with and into the Registrant
upon which the Registrant shall survive the merger and the separate corporate
existence of Greentree shall cease. The Plan received the affirmative vote of
two-thirds of all outstanding Common Shares of Greentree at its 1999 Annual
Meeting of Shareholders. Under the Plan, the merger becomes effective
immediately upon compliance with the laws of the States of New York and
Delaware. On November 20, 1998 (the "Effective Date"), after receiving the
required approvals from the States of New York and Delaware, the Plan became
effective.
The Plan was entered into with the purpose of changing Greentree's state
of incorporation from New York to Delaware and amending its corporate name. The
Registrant believes that the comprehensive, modern and flexible corporate laws
of the State of Delaware will provide the directors and management of the
Registrant with greater certainty and predictability in managing the affairs of
the corporation. The Registrant also believes that the changed name will more
accurately reflect the Registrant's current business.
As of the Effective Date, each of the issued and outstanding Common
Shares of Greentree has been converted into the right to receive one share of
the Common Shares of the Registrant. Each of the outstanding options, warrants
and shares reserved for issuance upon conversion of such securities of
Greentree, has been converted into an option, warrant or shares, as the case may
be, to purchase the number of Common Shares of the Registrant, which the holder
would have owned following such exercise or conversion prior to the Effective
Date, with no other changes in the terms or conditions of such securities.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated November 10, 1998, by
and between PurchaseSoft, Inc., a Delaware corporation, and
Greentree Software, Inc., a New York corporation.
3.1 Certificate of Incorporation of PurchaseSoft, Inc.
3.2 By-Laws of PurchaseSoft, Inc.
</TABLE>
<PAGE>
-3-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PURCHASESOFT, INC.
By: /s/ JOSEPH D. MOONEY
--------------------------------------------
Name: Joseph D. Mooney
Title: Chairman and Chief Executive Officer
Dated: November 20, 1998
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated November 10, 1998,
by and between PurchaseSoft, Inc., a Delaware
corporation, and Greentree Software, Inc., a New York
corporation.
3.1 Certificate of Incorporation of PurchaseSoft, Inc.
3.2 By-Laws of PurchaseSoft, Inc.
</TABLE>
<PAGE>
-4-
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), made this 10th day of
November 1998, by and between Greentree Software, Inc., a New York corporation
("Greentree-New York"), and PurchaseSoft, Inc., a Delaware corporation and a
wholly-owned subsidiary of Greentree-New York ("PurchaseSoft") (the two
corporate parties hereto being sometimes collectively referred to as the
"Constituent Corporations").
WITNESSETH:
WHEREAS, the Boards of Directors of Greentree-New York and PurchaseSoft have
determined that the proposed merger (the "Merger") of Greentree-New York with
PurchaseSoft upon the terms hereinafter set forth is advisable and in the best
interests of the shareholders of such corporations, and the Boards of Directors
of Greentree-New York and PurchaseSoft have adopted and approved this Agreement
and both such Boards of Directors have directed that this Agreement be submitted
to the shareholders of Greentree-New York and PurchaseSoft for their approval;
and
WHEREAS, the Merger is intended to constitute a reorganization within the
meaning of Section 368(a)(1)(F) of the Internal Revenue Code of 1986; and
WHEREAS, Greentree-New York and PurchaseSoft, as appropriate, intend to take all
such action as may be necessary or appropriate as and when required by the
provisions of this Agreement in order to consummate the Merger;
WHEREAS, the authorized capital stock of Greentree-New York consists solely of
15,000,000 shares of common stock, par value $.01 per share, of which 8,154,761
shares are issued and outstanding as of the date hereof; and
WHEREAS, the authorized capital stock of PurchaseSoft consists solely of
25,000,000 shares of common stock, par value $.01 per share, of which 100 shares
are issued and outstanding as of the date hereof, all of which shares are owned
by Greentree-New York;
NOW, THEREFORE, the Constituent Corporations do hereby agree to merge on the
terms and conditions herein provided, as follows:
ARTICLE I
GENERAL
1.1 Agreement to Merge. The parties to this Agreement agree to effect the
Merger herein provided for, subject to the terms and conditions set forth
herein.
1.2 Effective Time of the Merger. The Merger shall be effective in
accordance with the laws of the States of New York and Delaware. The date and
time the Merger becomes effective is referred to as the "Effective Time of the
Merger."
1.3 Surviving Corporation. At the Effective Time of the Merger,
Greentree-New York shall be merged with and into PurchaseSoft, and PurchaseSoft
shall be the surviving corporation, governed by the laws of the
<PAGE>
-5-
State of Delaware (hereinafter sometimes called the "Surviving Corporation").
The name of the Surviving Corporation will be PurchaseSoft, Inc.
1.4 Certificate of Incorporation and Bylaws. At the Effective Time of the
Merger, the Certificate of Incorporation and Bylaws of PurchaseSoft in effect
immediately prior to the Effective Time of the Merger shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation, subject always to the
right of the Surviving Corporation to amend its Certificate of Incorporation and
Bylaws in accordance with the laws of the State of Delaware and the provisions
of the Certificate of Incorporation.
1.5 Directors. The directors of Greentree-New York in office at the
Effective Time of the Merger shall be and constitute the directors of the
Surviving Corporation, each holding the same directorship in the Surviving
Corporation as he or she held in Greentree-New York for the terms elected and/or
until their respective successors shall be elected or appointed and qualified.
1.6 Officers. The officers of Greentree-New York in office at the Effective
Time of the Merger shall be and constitute the officers of the Surviving
Corporation, each holding the same office in the Surviving Corporation as he or
she held in Greentree-New York for the terms elected and/or until their
respective successors shall be elected or appointed and qualified.
1.7 Effect of the Merger. On and after the Effective Time of the Merger,
the separate existence of Greentree-New York and PurchaseSoft shall cease and
the Surviving Corporation shall succeed, without further action, to all the
properties and assets of Greentree-New York and PurchaseSoft of every kind,
nature and description and to Greentree-New York's and PurchaseSoft's business
as a going concern. The Surviving Corporation shall also succeed to all rights,
title and interests to all real estate and other property owned by Greentree-New
York or PurchaseSoft without reversion or impairment, without further act or
deed, and without any transfer or assignment having occurred, but subject to any
existing liens thereon. All liabilities and obligations of Greentree-New York
or PurchaseSoft shall become the liabilities and obligations of the Surviving
Corporation, and any proceedings pending against Greentree-New York or
PurchaseSoft will be continued as if the Merger had not occurred.
1.8 Further Assurances. Greentree-New York hereby agrees that at any time,
or from time to time, as and when requested by the Surviving Corporation, or by
its successors and assigns, it will execute and deliver, or cause to be executed
and delivered in its name by its last acting officers, or by the corresponding
officers of the Surviving Corporation, all such conveyances, assignments,
transfers, deeds or other instruments, and will take or cause to be taken such
further or other action and give such assurances as the Surviving Corporation,
its successors or assigns may deem necessary or desirable in order to evidence
the transfer, vesting of any property, right, privilege or franchise or to vest
or perfect in or confirm to the Surviving Corporation, its successors and
assigns, title to and possession of all the property, rights, privileges,
powers, immunities, franchises and interests referred to in this Article I and
otherwise to carry out the intent and purposes thereof.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 Greentree-New York Capital Stock. At the Effective Time of the Merger,
by virtue of the Merger and without any action on the part of Greentree-New
York, PurchaseSoft or the holders of any of the common stock ("Greentree-New
York Common Stock") of Greentree-New York: (i) each issued and outstanding share
of Greentree-New York Common Stock, including any rights attached thereto, and
each share of Common Stock of Greentree-New York, including any rights attached
thereto, held in the treasury of Greentree-New York, shall be converted into one
share of PurchaseSoft Common Stock with such similar rights attached thereto;
(ii) each option to purchase Greentree-New York Common Stock granted pursuant to
(a) the 1987, 1984 and 1997 Stock Option Plans of Greentree-New York, each as
amended to date (the "Stock Option Plans"), and (b) the stock option agreements
which shall be outstanding immediately prior to the Merger (collectively, the
<PAGE>
-6-
"Options") shall, by virtue of the merger and without further action, be assumed
by PurchaseSoft and the holder thereof thereafter shall be entitled upon
exercise, in accordance with the terms of such Options, to purchase after the
Effective Time that number of shares of PurchaseSoft Common Stock as is equal to
the number of shares of Greentree-New York Common Stock that such holder is, or
would have been at the time of exercise, entitled to purchase as provided in
such Option, at the price per share provided in such Option, and except for the
security for which such Option is exercisable, each Option shall otherwise
remain subject to the identical terms and conditions after the Effective Time
(including, without limitation, the exercise date and extent of exercisability)
as were applicable to such Option immediately prior to the Effective Time; and
(iii) each holder of a warrant to purchase Greentree-New York Common Stock
granted pursuant to the stock purchase warrants which shall be outstanding
immediately prior to the Merger (the "Warrants") shall be entitled upon
exercise, in accordance with the terms of such warrants, to purchase after the
Effective Time that number of shares of PurchaseSoft Common Stock as is equal to
the number of shares of Greentree-New York Common Stock, respectively, that such
holder is, or would have been at the time of exercise, entitled to purchase as
provided in such Warrant, at the price per share provided in such Warrant, and
except for the security for which such Warrant is exercisable, each Warrant
shall otherwise remain subject to identical terms and conditions after the
Effective Time (including, without limitation, the exercise date and extent of
exercisability) as were applicable to such Warrant immediately prior to the
Effective Time.
2.2 PurchaseSoft Capital Stock. At the Effective Time of the Merger, by
virtue of the Merger and without any action on the part of Greentree-New York,
PurchaseSoft or the holders of any of the common stock ("PurchaseSoft Common
Stock") of PurchaseSoft, each issued and outstanding share of PurchaseSoft
Common Stock shall be canceled.
ARTICLE III
TERMINATION AND AMENDMENT
3.1 Termination. This Agreement may be terminated and abandoned at any time
prior to the Effective Time of the Merger, whether before or after action
thereon by the shareholders of the Constituent Corporations, by the mutual
written consent of the Boards of Directors of Greentree-New York and
PurchaseSoft.
3.2 Consequences of Termination. In the event of the termination and
abandonment of this Agreement pursuant to the provisions of Section 3.1 hereof,
this Agreement shall be of no further force or effect.
3.3 Modification, Amendment, Etc. Any of the terms or conditions of this
Agreement may be waived at any time, whether before or after action thereon by
the shareholders of the Constituent Corporations, by the party entitled to the
benefits thereof, and this Agreement may be modified or amended at any time,
whether before or after action thereon by the shareholders of the Constituent
Corporations, to the full extent permitted by the corporate laws of the States
of New York and Delaware. Any waiver, modification or amendment shall be
effective only if reduced to writing and executed by the duly authorized
representatives of the Constituent Corporations.
ARTICLE IV
MISCELLANEOUS
4.1 Expenses. The Surviving Corporation shall pay all expenses of carrying
this Agreement into effect and accomplishing the Merger herein provided for.
4.2 Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provisions of this
Agreement.
<PAGE>
-7-
4.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original instrument, and all such counterparts together shall constitute only
one original.
4.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws principles thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
-8-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf by an officer duly authorized thereunto as of the date
first above written.
GREENTREE SOFTWARE, INC.,
a New York corporation
By: /s/ Joseph D. Mooney
--------------------------------
Joseph D. Mooney,
Chairman and
Chief Executive Officer
PURCHASESOFT, INC.,
a Delaware corporation
By: /s/ Joseph D. Mooney
--------------------------------
Joseph D. Mooney,
Chairman and
Chief Executive Officer
<PAGE>
-9-
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
PURCHASESOFT, INC.
FIRST. The name of the Corporation is PURCHASESOFT, INC.
SECOND. The address of the Corporation's registered office in the State
of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of the Corporation's registered agent at such address is
Corporation Service Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 25,000,000, consisting solely of:
25,000,000 shares of common stock, $.01 par value per share ("Common
Stock").
The following is a statement of the powers, designations, preferences,
privileges, and relative, participating, optional, and other special rights of
the Common Stock:
1. COMMON STOCK
1.1. INCREASE OR DECREASE IN AUTHORIZED NUMBER. The number of
authorized shares of Common Stock may be increased or decreased (but not below
the combined number of shares thereof then outstanding) by the affirmative vote
of the holders of the majority of the stock of the Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the Delaware General
Corporation Law.
1.2. VOTING RIGHTS. Except as otherwise required by law, the holders
of Common Stock shall have full voting rights and powers to vote on all matters
submitted to stockholders of the Corporation for vote, consent or approval, and
each holder of Common Stock shall be entitled to one vote for each share of
Common Stock held of record by such holder.
1.3. DIVIDEND, LIQUIDATION AND OTHER RIGHTS. Each share of Common
Stock issued and outstanding shall be identical in all respects with each other
such share, and no dividends shall be paid on any shares of Common Stock unless
the same dividend is paid on all shares of Common Stock outstanding at the time
of such payment. Except as may be provided by the laws of the State of
Delaware, the holders of Common Stock shall have all other rights of
stockholders, including, without limitation, (a) the right to receive dividends,
when and as declared by the Board of Directors, out of assets lawfully available
therefor, and (b) in the event of any distribution of assets upon a liquidation
or otherwise, the right to receive ratably and equally all the assets and funds
of the Corporation remaining after the payment to the holders of any other class
or series of stock ranking senior to the Common Stock upon liquidation of the
specific preferential amounts which they are entitled to receive upon such
liquidation.
FIFTH. The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for defining
and regulating the powers of the Corporation and its directors and stockholders
and are in furtherance and not in limitation of the powers conferred upon the
Corporation by statute:
<PAGE>
-10-
(a) At each annual meeting of stockholders, nominees will
stand for election for one-year terms to succeed those directors whose
terms are to expire as of such meeting. Notwithstanding anything
expressed or implied to the contrary in the foregoing provisions of this
Article FIFTH, each director shall continue to serve as such until the
expiration of his term as set forth above in this paragraph (a) and his
successor is duly elected and qualified or until his or her earlier
death, incapacity, resignation or removal. Any director serving as such
pursuant to this paragraph (a) of Article FIFTH may be removed only for
cause and only by the vote of the holders of a majority of the shares of
the Corporation's stock entitled to vote for the election of directors.
(b) The Board of Directors shall have the power and
authority: (1) to adopt, amend or repeal any or all of the By-Laws of
the Corporation, subject only to such limitations, if any, as may be
from time to time imposed by other provisions of this Certificate of
Incorporation, by law, or by the By-Laws; and (2) to the full extent
permitted or not prohibited by law, and without the consent of or other
action by the stockholders, to authorize or create mortgage, pledges or
other liens or encumbrances upon any or all of the assets, real,
personal or mixed, and franchises of the Corporation, including
after-acquired property, and to exercise all of the powers of the
Corporation in connection therewith.
(c) Except as the Delaware General Corporation Law may
otherwise require with respect the filling of vacancies or new
directorships in the Board of Directors, any vacancies or new
directorships in the Board of Directors, including unfilled vacancies or
new directorships resulting from the removal of directors with cause or
from any increase in the number of directors, may be filled only by the
vote of a majority of the remaining directors then in office, although
less than a quorum, or by the sole remaining director.
(d) Directors need not be stockholders of the Corporation.
SIXTH. No director of the Corporation shall be personally liable to the
Corporation or to any of its stockholders for monetary damages for breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability; PROVIDED, HOWEVER, that, to the extent required from time to time by
applicable law, this Article SIXTH shall not eliminate or limit the liability of
a director, to the extent such liability is 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 law, (iii) under Section 174 of
Title 8 of the Delaware Code, or (iv) for any transactions from which the
director derived an improper personal benefit. No amendment to or repeal of
this Article SIXTH shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to the effective date of such amendment or repeal.
SEVENTH. Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any action, suit or proceeding, by
reason of being or having been a director or officer of the Corporation or
serving or having served at the request of the Corporation as a director,
trustee, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan, whether the basis of such proceeding is alleged action or
failure to act in an official capacity as a director, trustee, officer, employee
or agent or in any other capacity while serving as a director, trustee, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such person
in connection therewith, as further provided in the By-Laws.
EIGHTH. Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class or series of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary
<PAGE>
-11-
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 391 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class or series of stockholders of the Corporation, as the case
may be, to be summoned in such a manner as the said court directs. If a majority
of the number representing three-fourths (3/4ths) in value of the creditors or
class of creditors, and/or of the stockholders or class or series of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a consequence of
such compromise or arrangement, the compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all creditors or class of creditors, and/or
stockholders or class or series of stockholders of the Corporation, as the case
may be, and also on the Corporation.
NINTH. The Board of Directors, when considering a tender offer or
merger or acquisition proposal, may take into account factors in addition to
potential short-term economic benefits to stockholders of the Corporation,
including without limitation (A) comparison of the proposed consideration to be
received by stockholders in relation to the then current market price of the
Corporation's capital stock, the estimated current value of the Corporation in a
freely negotiated transaction, and the estimated future value of the Corporation
as an independent entity and (B) the impact of such a transaction on the
employees, suppliers, and customers of the Corporation and its effect on the
communities in which the Corporation operates.
TENTH. Any action required or permitted to be taken by the stockholders
of the Corporation may be taken only at a duly called annual or special meeting
of the stockholders, and not by written consent in lieu of such a meeting.
Special meetings of stockholders of the Corporation may only be called by the
Chairman of the Board of Directors, the President, a majority of the total
number of directors which the Corporation would have if there were no vacancies,
or by the Corporation at the written request of stockholders holding greater
than one-third of the outstanding shares.
ELEVENTH. The affirmative vote of the holders of at least seventy-five
percent (75%) of the outstanding voting stock of the Corporation (in addition to
any separate class vote that may in the future be required pursuant to the terms
of any outstanding preferred stock) shall be required (i) to amend or repeal the
provisions of Articles FIFTH, SEVENTH, NINTH, TENTH or ELEVENTH of the
Corporation's Certificate of Incorporation, as amended from time to time, (ii)
to amend, adopt or repeal the Corporation's By-Laws (PROVIDED, HOWEVER, that the
provisions of this Article ELEVENTH shall in no way limit the power or authority
of the Board of Directors to amend, adopt or repeal By-Laws), or (iii) to reduce
the number of authorized shares of Common Stock.
TWELFTH. The name and mailing address of the sole incorporator is as
follows:
NAME MAILING ADDRESS
---- ---------------
Douglas E. Onsi, Esq. c/o Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
-12-
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purposes of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is my act and deed and the facts stated herein are true, and
accordingly have hereunto set my hand this 5th day of October, 1998.
/s/ Douglas E. Onsi
----------------------------------------
Douglas E. Onsi, Esq.
<PAGE>
-13-
EXHIBIT 3.2
BY-LAWS OF
PURCHASESOFT, INC.
ARTICLE I. - GENERAL.
1.1. OFFICES. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also
have offices at such other places both within and without the State of Delaware
as the Board of Directors may from time to time determine or the business of the
Corporation may require.
1.2. SEAL. The seal of the Corporation shall be in the form of a
circle and shall have inscribed thereon the name of the Corporation, the year of
its organization and the words "Corporate Seal, Delaware".
1.3. FISCAL YEAR. The fiscal year of the Corporation shall be the
period from June 1 through May 31.
ARTICLE II. - STOCKHOLDERS.
2.1. PLACE OF MEETINGS. All meetings of the stockholders shall be held
at the office of the Corporation except such meetings as the Board of Directors
expressly determine shall be held elsewhere, in which case meetings may be held
upon notice as hereinafter provided at such other place or places within or
without the State of Minnesota as the Board of Directors shall have determined
and as shall be stated in such notice.
2.2. ANNUAL MEETING. The annual meeting of stockholders of the
Corporation shall be held on such date and at such place and time, within the
first six months of the Corporation's fiscal year, as may be fixed by resolution
of the Board of Directors and stated in the notice of the meeting. At each
annual meeting of stockholders, the stockholders entitled to vote shall elect
such members of the Board of Directors as are standing for election at such
meeting, and shall transact such other business as may properly be brought
before the meeting. At the annual meeting any business may be transacted,
irrespective of whether the notice calling such meeting shall have contained a
reference thereto, except where notice is required by law, the Corporation's
Certificate of Incorporation, as amended and in effect from time to time (the
"Certificate of Incorporation"), or these By-Laws.
2.3. SPECIAL MEETING. Special meetings of stockholders for any purpose
or purposes may only be called by the Chairman of the Board of Directors, the
President, a majority of the total number of directors which the Corporation
would have if there were no vacancies (the "Whole Board"), or by the Corporation
at the written request of the stockholders holding greater than one-third of the
outstanding shares. Only such business shall be conducted at a special meeting
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting.
2.4. NOTICE OF MEETING. Written notice of any meeting of the
stockholders stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or after
the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting
<PAGE>
-14-
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice. Any previously scheduled meeting of the stockholders may be
postponed, and (unless the Certificate of Incorporation otherwise provides) any
special meeting of the stockholders may be canceled, by resolution of the Board
of Directors upon public notice given prior to the date previously scheduled for
such meeting of stockholders.
2.5. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) NOMINATION OF DIRECTORS. Only persons who are nominated
in accordance with the procedures set forth in these By-Laws shall be eligible
to serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (a) by or
at the direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice for
the election of directors at the meeting and who complies with the notice
procedures set forth in this Section 2.5(a). Such 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. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days nor more
than 120 days prior to the meeting; PROVIDED, HOWEVER, that in the event that
less than 100 days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must be
so received not later than the close of business on the seventh day following
the day on which such notice of the date of the meeting or such public
disclosure was made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected),
and (b) as to the stockholder giving the notice (i) the name and address, as
they appear on the Corporation's books, of such stockholder and (ii) the class
and number of shares of the Corporation which are beneficially owned by such
stockholder. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the Corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
to serve as a director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 2.5(a). The chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
By-Laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 2.5(a), a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Section 2.5(a).
(b) NOTICE OF BUSINESS. At any meeting of the stockholders,
only such business shall be conducted as shall have been brought before the
meeting (a) by or at the direction of the Board of Directors or (b) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of the notice provided for in this Section 2.5(b), who shall be entitled
to vote at such meeting and who complies with the notice procedures set forth in
this Section 2.5(b). For business to be properly brought before a stockholder
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and
<PAGE>
-15-
received at the principal executive offices of the Corporation not less than 90
days nor more than 120 days prior to the meeting; PROVIDED, HOWEVER, that in the
event that less than 100 days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must be received no later than the close of business on the seventh day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the meeting
(a) a brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting; (b) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material interest of the
stockholder in such business. Notwithstanding anything in the By-Laws to the
contrary, no business shall be conducted at a stockholder meeting except (i) in
accordance with the procedures set forth in this Section 2.5(b) or (ii) with
respect to nominations of persons for election as directors of the Corporation,
in accordance with the provisions of Section 2.5(a) hereof. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with the
provisions of the By-Laws, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing provisions of this Section
2.5(b), a stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section.
2.6. QUORUM AND ADJOURNMENT. At all meetings of the stockholders, the
holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
requisite for the transaction of business except as otherwise provided by law,
by the Certificate of Incorporation or by these By-Laws. The chairman of the
meeting or a majority of the shares so represented may, whether or not there is
such a quorum, adjourn the meeting from time to time without notice other than
announcement at the meeting. If the adjournment is for more than thirty days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. At such adjourned meeting, at which the
requisite amount of voting stock shall be represented, any business may be
transacted which might have been transacted if the meeting had been held as
originally called. The stockholders present at a duly called meeting at which
quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
2.7. RIGHT TO VOTE; PROXIES. Each holder of a share or shares of
capital stock of the Corporation having the right to vote at any meeting shall
be entitled to one vote for each such share of stock held by him. Any
stockholder entitled to vote at any meeting of stockholders may vote either in
person or by proxy, but no proxy which is dated more than three years prior to
the meeting at which it is offered shall confer the right to vote thereat unless
the proxy provides that it shall be effective for a longer period. A proxy may
be granted by a writing executed by the stockholder or his authorized officer,
director, employee or agent or by transmission or authorization of transmission
of a telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation firm,
proxy support service organization or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, subject to the
conditions set forth in Section 212 of the Delaware General Corporation Law, as
it may be amended from time to time (the "Delaware GCL").
<PAGE>
-16-
2.8. VOTING. At all meetings of stockholders, except as otherwise
expressly provided for by statute, the Certificate of Incorporation or these
By-Laws, (i) in all matters other than the election of directors, the
affirmative vote of a majority of shares present in person or represented by
proxy at the meeting and entitled to vote on such matter shall be the act of the
stockholders and (ii) directors shall be elected by a plurality of the votes of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors. Except as otherwise expressly provided by
law, the Certificate of Incorporation or these By-Laws, at all meetings of
stockholders the voting shall be by ballot, each of which shall state the name
of the stockholder voting and the number of shares voted by him, and, if such
ballot be cast by a proxy, it shall also state the name of the proxy. The
chairman of the meeting shall fix and announce at the meeting the date and time
of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting
2.8.1. INSPECTORS. The Board of Directors by resolutions shall appoint
one or more inspectors, which inspector or inspectors may include individuals
who serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives, to act at the meeting of
stockholders and make a written report thereof. One or more persons may be
designated as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate has been appointed to act or is able to act at a
meeting of stockholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by law.
2.9. STOCKHOLDERS' LIST. A complete list of the stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order and
showing the address of each stockholder, and the number of shares registered in
the name of each stockholder, shall be prepared by the Secretary and filed
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held, at least 10 days before such meeting, and
shall at all times during the usual hours for business, and during the whole
time of said election, be open to the examination of any stockholder for a
purpose germane to the meeting.
2.10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT. Unless otherwise
provided in the Certificate of Incorporation, any action required or permitted
to be taken by the stockholders of the Corporation must be effected at an annual
or special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
ARTICLE III. - DIRECTORS.
3.1. GENERAL POWERS. In addition to the powers and authority expressly
conferred upon them by these By-Laws, the Board of Directors may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by statute or by the Certificate of Incorporation or by these By-Laws directed
or required to be exercised or done by the stockholders.
3.2. QUALIFICATIONS OF DIRECTORS. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware.
3.3. NUMBER OF DIRECTORS; VACANCIES.
(a) The number of directors of the Corporation shall be not less than
three (3) nor more than nine (9), unless and until otherwise determined by a
vote of a majority of the Board of Directors as herein provided. The size of
the Board of Directors shall be fixed from time to time
<PAGE>
-17-
pursuant to a resolution adopted by a majority of the Whole Board of Directors
or by the stockholders. The Board of Directors shall hold office until the
annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. Any director may
resign at any time upon written notice to the Corporation. Except as the
Delaware GCL may otherwise require, in the interim between annual meetings of
stockholders or of special meetings of stockholders called for the election of
directors and/or for the removal of one or more directors and for the filling of
any vacancy in that connection, any vacancies in the Board of Directors,
including unfilled vacancies resulting from the removal of directors for cause
or without cause, may be filled by the vote of a majority of the remaining
directors then in office, although less than a quorum, or by the sole remaining
director, or by the stockholders.
3.4. RESIGNATION. Any director of this Corporation may resign at any
time by giving written notice to the Chairman of the Board, if any, the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, at the time of receipt if no time is
specified therein or at the time of acceptance if the effectiveness of such
resignation is conditioned upon its acceptance. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
3.5. REMOVAL. Except as may otherwise be provided by the Delaware GCL
or the Certificate of Incorporation, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
3.6. PLACE OF MEETINGS AND BOOKS. The Board of Directors may hold
their meetings and keep the books of the Corporation outside the State of
Delaware, at such places as they may from time to time determine.
3.7. EXECUTIVE COMMITTEE. There may be an executive committee of one
or more directors designated by resolution passed by a majority of the Whole
Board. The act of a majority of the members of such committee shall be the act
of the committee. Said committee may meet at stated times or on notice to all
by any of their own number, and shall have and may exercise those powers of the
Board of Directors in the management of the business affairs of the Corporation
as are provided by law and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Vacancies in the membership of the
committee shall be filled by the Board of Directors at a regular meeting or at a
special meeting called for that purpose.
3.8. OTHER COMMITTEES. The Board of Directors may also designate one
or more committees in addition to the executive committee, by resolution or
resolutions passed by a majority of the Whole Board; such committee or
committees shall consist of one or more directors of the Corporation, and to the
extent provided in the resolution or resolutions designating them, shall have
and may exercise specific powers of the Board of Directors in the management of
the business and affairs of the Corporation to the extent permitted by statute
and shall have power to authorize the seal of the Corporation to be affixed to
all papers which may require it. 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.
3.9. POWERS DENIED TO COMMITTEES. Committees of the Board of Directors
shall not, in any event, have any power or authority to amend the Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares adopted by the
Board of Directors as provided in Section 151(a) of the Delaware GCL, fix the
designations and any of the preferences or rights of such shares relating
<PAGE>
-18-
to dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any series),
adopt an agreement of merger or consolidation, recommend to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution or to amend the By-Laws of the
Corporation. Further, no committee of the Board of Directors shall have the
power or authority to declare a dividend, to authorize the issuance of stock or
to adopt a certificate of ownership and merger pursuant to Section 253 of the
Delaware GCL, unless the resolution or resolutions designating such committee
expressly so provides.
3.10. SUBSTITUTE COMMITTEE MEMBER. In the absence or on the
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 such absent or disqualified
member. Any committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors as may be required by the Board of Directors.
3.11. COMPENSATION OF DIRECTORS. The Board of Directors shall have the
power to fix the compensation of directors and members of committees of the
Board 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 and/or a stated annual
fee (some or all of which may be paid in the form of capital stock of the
Corporation) as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.12. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without other notice than this Section 3.12, immediately after,
and at the same place as, the Annual Meeting of Stockholders. The Board of
Directors may, by resolutions, provide the time and place for the holding of
additional regular meetings without other notice than such resolution. Such
regular meetings shall be held at such place within or without the State of
Delaware as shall be fixed by the Board of Directors.
3.13. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the Chairman of the Board of Directors, if any, or the President,
on two (2) days notice to each director, or such shorter period of time before
the meeting as will nonetheless be sufficient for the convenient assembly of the
directors so notified; special meetings shall be called by the Secretary in like
manner and on like notice, on the written request of two or more directors.
3.14. QUORUM. At all meetings of the Board of Directors, a majority of
the total number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically permitted or
provided by statute, or by the Certificate of Incorporation, or by these
By-Laws. If at any meeting of the Board of Directors there shall be less than a
quorum present, a majority of those present may adjourn the meeting from time to
time until a quorum is obtained, and no further notice thereof need be given
other than by announcement at said meeting which shall be so adjourned.
<PAGE>
-19-
3.15. TELEPHONIC PARTICIPATION IN MEETINGS. Members of the Board of
Directors or any committee designated by such board may participate in a meeting
of the Board of Directors or committee thereof by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this section shall constitute presence in person at such meeting.
3.16. ACTION BY CONSENT. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if written consent thereto is signed by all
members of the Board of Directors or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board of
Directors or committee.
ARTICLE IV. - OFFICERS.
4.1. SELECTION; STATUTORY OFFICERS. The officers of the Corporation
shall be chosen by the Board of Directors. There shall be a President, a
Secretary and a Treasurer, and there may be a Chairman of the Board of
Directors, one or more Vice Presidents, one or more Assistant Secretaries, and
one or more Assistant Treasurers, as the Board of Directors may elect. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-Laws otherwise provide.
4.2. TIME OF ELECTION. The officers above named shall be chosen by the
Board of Directors at its first meeting after each annual meeting of
stockholders. None of said officers need be a director.
4.3. ADDITIONAL OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
4.4. TERMS OF OFFICE. The officers of the Corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the stockholders may be removed at any time by the affirmative vote
of a majority of the stockholders. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
4.5. COMPENSATION OF OFFICERS. The Board of Directors (or a duly
appointed committee of the Board of Directors) shall have power to fix the
compensation of all officers of the Corporation.
4.6. CHAIRMAN OF THE BOARD. Unless the Board of Directors otherwise
determines, the Chairman of the Board shall be the chief executive officer
and head of the Corporation. The Chairman of the Board of Directors, if any,
otherwise the President, if a director, or such other director as the Board
may choose, shall preside at all meetings of the Board of Directors and of
the stockholders of the Corporation. In the absence of the President, or in
the event of the President's inability or refusal to act, the Chairman of the
Board shall perform the duties and exercise the powers of the President until
such vacancy shall be filled in the manner prescribed by these By-Laws or by
law. The Chairman of the Board shall have such other powers and perform such
other duties as may from time to time be prescribed by the Board of Directors
or these By-Laws.
<PAGE>
-20-
4.7. PRESIDENT. Unless there is a Chairman of the Board, the President
shall preside at all meetings of directors and stockholders. Under the
supervision of the Board of Directors and of the executive committee, the
President shall have the general control and management of its business and
affairs, subject, however, to the right of the Board of Directors and of the
executive committee to confer any specific power, except such as may be by
statute exclusively conferred on the President, upon any other officer or
officers of the Corporation. The President shall perform and do all acts and
things incident to the position of President and such other duties as may be
assigned to him from time to time by the Board of Directors or the executive
committee.
4.8. VICE-PRESIDENTS. The Vice-Presidents shall perform such of the
duties of the President on behalf of the Corporation as may be respectively
assigned to them from time to time by the Board of Directors or by the executive
committee or by the President. The Board of Directors or the executive
committee may designate one of the Vice-Presidents as the Executive
Vice-President, and in the absence or inability of the President to act, such
Executive Vice-President shall have and possess all of the powers and discharge
all of the duties of the President, subject to the control of the Board of
Directors and of the executive committee.
4.9. TREASURER. The Treasurer shall have the care and custody of all
the funds and securities of the Corporation which may come into his hands as
Treasurer, and the power and authority to endorse checks, drafts and other
instruments for the payment of money for deposit or collection when necessary or
proper and to deposit the same to the credit of the Corporation in such bank or
banks or depository as the Board of Directors or the executive committee, or the
officers or agents to whom the Board of Directors or the executive committee may
delegate such authority, may designate, and he may endorse all commercial
documents requiring endorsements for or on behalf of the Corporation. He may
sign all receipts and vouchers for the payments made to the Corporation. He
shall render an account of his transactions to the Board of Directors or to the
executive committee as often as the Board of Directors or the committee shall
require the same. He shall enter regularly in the books to be kept by him for
that purpose full and adequate account of all moneys received and paid by him on
account of the Corporation. He shall perform all acts incident to the position
of Treasurer, subject to the control of the Board of Directors and of the
executive committee. He shall when requested, pursuant to vote of the Board of
Directors or the executive committee, give a bond to the Corporation conditioned
for the faithful performance of his duties, the expense of which bond shall be
borne by the Corporation.
4.10. SECRETARY. The Secretary shall keep the minutes of all meetings
of the Board of Directors and of the stockholders; and shall attend to the
giving and serving of all notices of the Corporation. Except as otherwise
ordered by the Board of Directors or the executive committee, the Secretary
shall attest the seal of the Corporation upon all contracts and instruments
executed under such seal and shall affix the seal of the Corporation thereto and
to all certificates of shares of capital stock of the Corporation. The
Secretary shall have charge of the stock certificate book, transfer book and
stock ledger, and such other books and papers as the Board of Directors or the
executive committee may direct. He shall, in general, perform all the duties of
Secretary, subject to the control of the Board of Directors and of the executive
committee.
4.11. ASSISTANT SECRETARY. The Assistant Secretary, or if there be
more than one, the assistant secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
<PAGE>
-21-
4.12. ASSISTANT TREASURER. The Assistant Treasurer, or if there shall
be more than one, the Assistant Treasurers in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
4.13. SUBORDINATE OFFICERS. The Board of Directors may select such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority, and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to
time, authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
4.14. REMOVAL. Any officer elected, or agent appointed, by the Board
of Directors may be removed by the affirmative vote of a majority of the Whole
Board whenever, in their judgment, the best interests of the Corporation would
be served thereby. Any officer or agent appointed by the President may be
removed by him whenever, in his judgment, the best interests of the Corporation
would be served thereby. No elected officer shall have any contractual rights
against the Corporation for compensation by virtue of such election beyond the
date of the election of his successor, his death, his resignation or his
removal, whichever event shall first occur, except as otherwise provided in an
employment contract or under an employee deferred compensation plan.
4.15. VACANCIES. A newly created elected office and a vacancy in any
elected office because of death, resignation or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the President because
of death, resignation, or removal may be filled by the President.
ARTICLE V. - STOCK.
5.1. STOCK. Each stockholder shall be entitled to a certificate or
certificates of stock of the Corporation in such form as the Board of Directors
may from time to time prescribe. 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 certify the holder's name and number and class of shares
and shall be signed by both of (i) either the Chairman, the President or a
Vice-President, and (ii) any one of the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, and shall be sealed with the corporate
seal of the Corporation. If such certificate is countersigned (l) by a transfer
agent other than the Corporation or its employee, or, (2) by a registrar other
than the Corporation or its employee, the signature of the officers of the
Corporation and the corporate seal may be facsimiles. In case any officer or
officers who shall have signed, or whose facsimile signature or signatures shall
have been used on, any such certificate or certificates shall cease to be such
officer or officers of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature shall have
been used thereon had not ceased to be such officer or officers of the
Corporation.
5.2. FRACTIONAL SHARE INTERESTS. The Corporation may, but shall not be
required to, issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (i) arrange for the disposition of fractional
interests by those entitled thereto, (ii) pay in cash the
<PAGE>
-22-
fair value of fractions of a share as of the time when those entitled to receive
such fractions are determined, or (iii) issue scrip or warrants in registered or
bearer form which shall entitle the holder to receive a certificate for a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share shall, but scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
Corporation in the event of liquidation. The Board of Directors may cause scrip
or warrants to be issued subject to the conditions that they shall become void
if not exchanged for certificates representing full shares before a specified
date, or subject to the conditions that the shares for which scrip or warrants
are exchangeable may be sold by the Corporation and the proceeds thereof
distributed to the holders of scrip or warrants, or subject to any other
conditions which the Board of Directors may impose.
5.3. TRANSFERS OF STOCK. Subject to any transfer restrictions then in
force, the shares of stock of the Corporation shall be transferable only upon
its books by the holders thereof in person or by their duly authorized attorneys
or legal representatives and upon such transfer the old certificates shall be
surrendered to the Corporation by the delivery thereof to the person in charge
of the stock and transfer books and ledgers or to such other person as the
directors may designate by whom they shall be cancelled and new certificates
shall thereupon be issued. 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 Delaware.
5.4. RECORD DATE. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or the 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 (60) days nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action. If no such record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; the record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is necessary, shall be the day on which the first written
consent is expressed; and the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at any meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
5.5. TRANSFER AGENT AND REGISTRAR. The Board of Directors may appoint
one or more transfer agents or transfer clerks and one or more registrars and
may require all certificates of stock to bear the signature or signatures of any
of them.
5.6. DIVIDENDS.
1. Power to Declare. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in
<PAGE>
-23-
property, in promissory notes or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation and the laws of Delaware.
2. Reserves. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
5.7. LOST, STOLEN OR DESTROYED CERTIFICATES. No certificates
for shares of stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed, except upon
production of such evidence of the loss, theft or destruction and upon
indemnification of the Corporation and its agents to such extent and in such
manner as the Board of Directors may from time to time prescribe.
ARTICLE VI. - MISCELLANEOUS MANAGEMENT PROVISIONS.
6.1. CHECKS, DRAFTS AND NOTES. All checks, drafts or orders for the
payment of money, and all notes and acceptances of the Corporation shall be
signed by such officer or officers, agent or agents as the Board of Directors
may designate.
6.2. NOTICES.
1. Notices to directors may, and notices to stockholders
shall, be in writing and delivered personally or mailed to the directors
or stockholders at their addresses appearing on the books of the
Corporation. Notice by mail shall be deemed to be given at the time
when the same shall be mailed. Notice to directors may also be given by
telegram, telecopy or orally, by telephone or in person.
2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation of the
Corporation or of these By-Laws, a written waiver of notice, signed by
the person or persons entitled to said notice, whether before or after
the time stated therein or the meeting or action to which such notice
relates, shall be deemed equivalent to notice. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting except
when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
6.3. CONFLICT OF INTEREST. 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
authorized the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (i) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (ii) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders of the Corporation entitled to vote thereon, and the contract or
transaction as specifically approved in good faith by vote of such stockholders;
or (iii) the contract or
<PAGE>
-24-
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee 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.
6.4. VOTING OF SECURITIES OWNED BY THIS CORPORATION. Subject always to
the specific directions of the Board of Directors, (i) any shares or other
securities issued by any other corporation and owned or controlled by this
Corporation may be voted in person at any meeting of security holders of such
other corporation by the President of this Corporation if he is present at such
meeting, or in his absence by the Treasurer of this Corporation if he is present
at such meeting, and (ii) whenever, in the judgment of the President, it is
desirable for this Corporation to execute a proxy or written consent in respect
to any shares or other securities issued by any other corporation and owned by
this Corporation, such proxy or consent shall be executed in the name of this
Corporation by the President, without the necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer, provided that if the President is unable to
execute such proxy or consent by reason of sickness, absence from the United
States or other similar cause, the Treasurer may execute such proxy or consent.
Any person or persons designated in the manner above stated as the proxy or
proxies of this Corporation shall have full right, power and authority to vote
the shares or other securities issued by such other corporation and owned by
this Corporation the same as such shares or other securities might be voted by
this Corporation.
6.5. INSPECTION OF BOOKS. The stockholders of the Corporation, by a
majority vote at any meeting of stockholders duly called, or in case the
stockholders shall fail to act, the Board of Directors shall have power from
time to time to determine whether and to what extent and at what times and
places and under what conditions and regulations the accounts and books of the
Corporation (other than the stock ledger) or any of them, shall be open to
inspection of stockholders; and no stockholder shall have any right to inspect
any account or book or document of the Corporation except as conferred by
statute or authorized by the Board of Directors or by a resolution of the
stockholders.
ARTICLE VII. - INDEMNIFICATION.
7.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of being or having been a director or officer of the
Corporation or serving or having served at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (an "Indemnitee"), whether the basis of such
proceeding is alleged action or failure to act in an official capacity as a
director, trustee, officer, employee or agent or in any other capacity while
serving as a director, trustee, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than permitted
prior thereto) (as used in this Article VII, the "Delaware Law"), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, trustee,
officer, employee or agent and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators; provided, however, that, except as provided
in Section 7.2 hereof with respect to Proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such Indemnitee in
connection with a Proceeding (or part
<PAGE>
-25-
thereof) initiated by such Indemnitee only if such Proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article VII shall be a contract right and
shall include the right to be paid by the Corporation the expenses (including
attorneys' fees) incurred in defending any such Proceeding in advance of its
final disposition (an "Advancement of Expenses"); provided, however, that, if
the Delaware Law so requires, an Advancement of Expenses incurred by an
Indemnitee shall be made only upon delivery to the Corporation of an undertaking
(an "Undertaking"), by or on behalf of such Indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "Final Adjudication") that such
Indemnitee is not entitled to be indemnified for such expenses under this
Article VII or otherwise.
7.2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 7.1
hereof is not paid in full by the Corporation within sixty days after a written
claim has been received by the Corporation, except in the case of a claim for an
Advancement of Expenses, in which case the applicable period shall be twenty
days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit brought by the Corporation to recover
an Advancement of Expenses pursuant to the terms of an Undertaking, the
Indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the Indemnitee
to enforce a right to an Advancement of Expenses) it shall be a defense that,
and (ii) in any suit by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking the Corporation shall be entitled to
recover such expenses upon a Final Adjudication that, the Indemnitee has not met
the applicable standard of conduct set forth in the Delaware Law. Neither the
failure of the Corporation (including its board of directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct set forth in the Delaware Law, nor an actual determination by the
Corporation (including its board of directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or by the orporation to recover an Advancement of Expenses pursuant to the terms
of an Undertaking, the burden of proving that the Indemnitee is not entitled to
be indemnified, or to such Advancement of Expenses, under this Article VII or
otherwise shall be on the Corporation.
7.3. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to
the Advancement of Expenses conferred in this Article 7 shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation, By-Law, agreement, vote
of stockholders or disinterested directors or otherwise.
7.4. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under this Article VII or under the Delaware Law.
7.5. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and to the Advancement of Expenses,
to any employee or agent of the
<PAGE>
-26-
Corporation to the fullest extent of the provisions of this Article VII with
respect to the indemnification and Advancement of Expenses of directors and
officers of the Corporation.
ARTICLE VIII. - AMENDMENTS.
8.1. AMENDMENTS. Subject always to any limitations imposed by the
Corporation's Certificate of Incorporation, these By-Laws may be altered,
amended, or repealed, or new By-Laws may be adopted, only by (i) the affirmative
vote of the holders of at least three-quarters (75%) of the outstanding voting
stock of the Corporation (in addition to any separate class vote that may be
required pursuant to the terms of any then outstanding preferred stock of the
Corporation), or (ii) by resolution of the Board of Directors duly adopted by
not less than a majority of the directors then constituting the full Board of
Directors.
