UNITED STATES
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) April 15, 1996
CHEYENNE SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-9189 13-3175893
(State or Other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
3 Epxressway Plaza, Roslyn Heights, NY 11577
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 484-5110
Page 1 of 7<PAGE>
ITEM 5. OTHER EVENTS.
On April 15, 1996, the Board of Directors of
Cheyenne Software, Inc. (the "Company") declared a dividend
of one preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $0.01 per share
(the "Common Shares"), of the Company. The dividend is
payable on April 26, 1996 (the "Record Date") to the
stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-
hundredth of a share of Series A Junior Participating
Preferred Stock, par value $0.01 per share (the "Preferred
Shares"), of the Company at a price of $100 per one one-
hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and Continental Stock
Transfer and Trust Company, as Rights Agent (the "Rights
Agent").
Until the earlier to occur of (i) 10 days following
a public announcement that a person or group of affiliated or
associated persons (other than (A) the Company, (B) a
majority-owned subsidiary of the Company, (C) any employee
benefit plan of the Company or any majority-owned subsidiary
of the Company, or (D) any entity holding Common Shares for
or pursuant to the terms of any such plan) have acquired
beneficial ownership of 20% or more of the outstanding Common
Shares (an "Acquiring Person") or (ii) 10 business days (or
such later date as may be determined by action of the Board
of Directors prior to such time as any person or group of
affiliated persons becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group
of 20% or more of the outstanding Common Shares (the earlier
of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Common
Share certificates outstanding as of the Record Date, by such
Common Share certificate with a copy of this Summary of
Rights attached thereto.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with
the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or
new issuance of Common Shares will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without
such notation or a copy of this Summary of Rights being
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attached thereto, will also constitute the transfer of the
Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the
Rights ("Right Certificates") will be mailed to holders of
record of the Common Shares as of the close of business on
the Distribution Date and such separate Right Certificates
alone will evidence the Rights.
The Rights are not exercisable until the
Distribution Date. The Rights will expire on April 15, 2006
(the "Final Expiration Date"), unless the Final Expiration
Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of
Preferred Shares or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the
grant to holders of the Preferred Shares of certain rights or
warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a
conversion price, less than the then-current market price of
the Preferred Shares or (iii) upon the distribution to
holders of the Preferred Shares of evidences of indebtedness
or assets (excluding regular periodic cash dividends paid out
of earnings or retained earnings or dividends payable in
Preferred Shares) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of
one one-hundredths of a Preferred Share issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common
Shares occurring, in any such case, prior to the Distribution
Date.
Preferred Shares purchasable upon exercise of the
Rights will not be redeemable. Each Preferred Share will be
entitled to a minimum preferential quarterly dividend payment
of $1 per share but will be entitled to an aggregate dividend
of 100 times the dividend declared per Common Share. In the
event of liquidation, the holders of the Preferred Shares
will be entitled to a minimum preferential liquidation
payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per Common
Share. Each Preferred Share will have 100 votes, voting
together with the Common Shares. Finally, in the event of
any merger, consolidation or other transaction in which
Common Shares are exchanged, each Preferred Share will be
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entitled to receive 100 times the amount received per Common
Share. These rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Shares'
dividend, liquidation and voting rights, the value of the one
one-hundredth interest in a Preferred Share purchasable upon
exercise of each Right should approximate the value of one
Common Share.
In the event that the Company is acquired in a
merger or other business combination transaction or 50% or
more of its consolidated assets or earning power are sold
after a person or group has become an Acquiring Person,
proper provision will be made so that each holder of a Right
will thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company
which at the time of such transaction will have a market
value of two times the exercise price of the Right. In the
event that any person or group of affiliated or associated
persons becomes an Acquiring Person, proper provision shall
be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will
thereafter be void), will thereafter have the right to
receive upon exercise that number of Common Shares having a
market value of two times the exercise price of the Right.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Shares, the
Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will
have become void), in whole or in part, at an exchange ratio
of one Common Share, or one one-hundredth of a Preferred
Share (or of a share of a class or series of the Company's
preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price.
No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth
of a Preferred Share, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu
thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day
prior to the date of exercise.
At any time prior to such time as any person
becomes an Acquiring Person, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a
price of $0.01 per Right (the "Redemption Price"). The
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redemption of the Rights may be made effective at such time
on such basis with such conditions as the Board of Directors
in its sole discretion may establish. Immediately upon any
redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board
of Directors of the Company without the consent of the
holders of the Rights, including an amendment to lower
certain thresholds described above to not less than the
greater of (i) the sum of .001% and the largest percentage of
the outstanding Common Shares then known to the Company to be
beneficially owned by any person or group of affiliated or
associated persons (other than an excepted person) and (ii)
10%, except that from and after such time as any person or
group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to
receive dividends.
The Rights have certain anti-takeover effects. The
Rights will cause substantial dilution to a person or group
that attempts to acquire the Company on terms not approved by
the Company's Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired.
The Rights should not interfere with any merger or other
business combination approved by the Board of Directors since
the Rights may be redeemed by the Company at the Redemption
Price prior to the time that a person or group has acquired
beneficial ownership of 20% or more of the Common Shares.
The Rights Agreement, dated as of April 15, 1996,
between the Company and the Rights Agent, specifying the
terms of the Rights and including the form of the Certificate
of Designation, Preferences and Rights setting forth the
terms of the Preferred Shares as an exhibit thereto and the
form of press release announcing the declaration of the
Rights are attached hereto as exhibits and are incorporated
herein by reference. The foregoing description of the Rights
is qualified in its entirety by reference to such exhibits.
Also on April 15, 1996, the Board of Directors of
the Company approved amendments to the Company's Restated
Bylaws. The full text of the Company's Restated Bylaws,
further restated to reflect the amendments approved by the
Board of Directors of the Company on April 15, 1996, is
attached hereto as an exhibit and is incorporated herein by
reference.
Page 5 of 7<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
4. Rights Agreement, dated as of April 15, 1996,
between Cheyenne Software, Inc. and Continental
Stock Transfer and Trust Company which includes
the form of Certificate of Designation,
Preferences and Rights setting forth the terms of
the preferred stock, as Exhibit A, the Form of
Right Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C,
incorporated herein by reference to Exhibit 1 to
the Registration Statement on Form 8-A dated
April 15, 1996 and filed by Cheyenne Software,
Inc. with the Securities and Exchange Commission
on April 15, 1996 (the "Form 8-A"). Pursuant to
the Rights Agreement, printed Right Certificates
will not be mailed until as soon as practicable
after the earlier of the tenth day after public
announcement that a person or group has acquired
beneficial ownership of 20% or more of the Common
Shares or the tenth business day (or such later
date as may be determined by action of the Board
of Directors) after a person commences, or
announces its intention to commence, a tender
offer or exchange offer the consummation of which
would result in the beneficial ownership by a
person or group of 20% or more of the Common
Shares.
99. Restated Bylaws of Cheyenne Software, Inc.,
further restated as of April 15, 1996.
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SIGNATURE
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.
CHEYENNE SOFTWARE, INC.
Date April 15, 1996 /s/ ReiJane Huai
Name: ReiJane Huai
Title: President and Chief
Executive Officer
Page 7 of 7<PAGE>
EXHIBIT LIST
4. Rights Agreement, dated as of April 15, 1996, between
Cheyenne Software, Inc. and Continental Stock Transfer
and Trust Company which includes the form of
Certificate of Designation, Preferences and Rights
setting forth the terms of the preferred stock, as
Exhibit A, the Form of Right Certificate as Exhibit B
and the Summary of Rights to Purchase Preferred Shares
as Exhibit C, incorporated herein by reference to
Exhibit 1 to the Registration Statement on Form 8-A
dated April 15, 1996 and filed by Cheyenne Software,
Inc. with the Securities and Exchange Commission on
April 15, 1996 (the "Form 8-A"). Pursuant to the
Rights Agreement, printed Right Certificates will not
be mailed until as soon as practicable after the
earlier of the tenth day after public announcement that
a person or group has acquired beneficial ownership of
20% or more of the Common Shares or the tenth business
day (or such later date as may be determined by action
of the Board of Directors) after a person commences, or
announces its intention to commence, a tender offer or
exchange offer the consummation of which would result
in the beneficial ownership by a person or group of 20%
or more of the Common Shares.
99. Restated Bylaws of Cheyenne Software, Inc., further
restated as of April 15, 1996.
CHEYENNE SOFTWARE, INC.
* * * *
RESTATED BY-LAWS
AS OF _________, 1996
* * * *
ARTICLE I
OFFICES
Section 1. Delaware Office. The registered office
of the corporation shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. Other Offices. The corporation may also
have offices at such other places, both within and without the
State of Delaware, as the board of directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. Place of Meeting. All meetings of the
stockholders for the election of directors shall be held in the
City of New York, County of New York, at such place as may be
fixed from time to time by the board of directors, or at such
other place, either within or without the State of Delaware, as
shall be designated from time to time by the board of directors
and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be
stated in the notice of meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual Meeting. A meeting of
stockholders shall be held annually, at which the stockholders
shall elect, by written ballot only and a plurality vote, a
board of directors, and transact such other business as may
properly be brought before the meeting. Commencing with the
year 1986, such annual meetings shall be held at 10:00 A.M., on<PAGE>
the fifteenth day of November, and if such day is a legal
holiday, then on the next secular day following, or at such
other date and time as shall be designated from time to time by
the board of directors and stated in the notice of the meeting.
Section 3. Notice of Annual Meeting. Written notice
of the annual meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is
called, shall be delivered not less than ten nor more than
sixty days before the date of the meeting, either personally or
by mail, to each stockholder entitled to vote at such meeting.
Annual meetings may be held without notice if all stockholders
entitled to vote are present, or if notice is waived by those
not present in accordance with Section 2 of ARTICLE IV of these
by-laws. Any previously scheduled annual meeting of
stockholders may be postponed by resolution of the board of
directors upon public notice given prior to the date previously
scheduled for such meeting of stockholders.
Section 4. Stockholder List. The officer who has
charge of the stock ledger of the corporation shall prepare and
make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the
meeting, such list being that of the stockholders of record for
the purposes of such meeting as established pursuant to Section
5 of ARTICLE VI of these by-laws, arranged in alphabetical
order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is
present.
Section 5. Special Meetings. Special meetings of
the stockholders, for any purpose or purposes, unless otherwise
prescribed by applicable law or by the certificate of
incorporation, may be called by the president and shall be
called by the president or secretary at the request in writing
of a majority of the board of directors, where such request is
made pursuant to a resolution adopted by a majority of the
total number of directors which the corporation would have if
there were no vacancies (the "whole board"), or at the request
in writing of stockholders owning a majority in amount of the
entire capital stock of the corporation then issued and
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outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting. In the event that
the corporation so receives any such request by such requisite
number of stockholders, the board of directors shall promptly,
but in all events within ten days after the date on which such
request is so received, adopt a resolution fixing the record
date therefor (which shall be a date within twenty business
days of such resolution), and such special meeting shall be
held on such date as is determined by the whole board, the
president or the secretary, but in any event not less than ten
days nor more than sixty days after such record date.
Section 6. Notice of Special Meeting. Written
notice of a special meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting
is called, shall be delivered not less than ten nor more than
sixty days before the date of the meeting, either personally or
by mail, to each stockholder entitled to vote at such meeting.
Special meetings may be held without notice if all stockholders
entitled to vote are present, or if notice is waived by those
not present in accordance with Section 2 of ARTICLE IV of these
by-laws. Any previously scheduled special meeting of
stockholders may be postponed and/or cancelled by resolution of
the board of directors upon public notice given prior to the
date previously scheduled for such meeting of stockholders.
Section 7. Quorum and Adjournment. 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 at all meetings of the stockholders for the
transaction of business except as otherwise provided by
applicable law or by the certificate of incorporation. The
chairman of the meeting or a majority of the stockholders
entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting,
whether or not there is such a quorum. At such adjourned
meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for
more than thirty days, or if after the adjournment a new record
date is fixed for the adjournment meeting, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. The stockholders present at a
duly called meeting at which a quorum is present may continue
to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
The chairman of any meeting of stockholders shall be
the chairman of the board of directors, unless the board of
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directors shall by resolution prior to such meeting designate
another person as chairman of such meeting.
Section 8. Voting. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy
shall decide any question brought before such meeting, unless
the question is one upon which express provision of applicable
law or of the certificate of incorporation or of these by-laws
a different vote is required in which case such express
provision shall govern and control the decision of such
question.
Section 9. Proxies. Unless otherwise provided in
the certificate of incorporation, each stockholder shall at
every meeting of the stockholders be entitled to one vote in
person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be
voted on after three years from its date, unless the proxy
provides for a longer period.
Section 10. Notice of Stockholder Business and
Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the
board of directors of the corporation and the proposal of
business to be considered by the stockholders may be made
at an annual meeting of stockholders (a) pursuant to the
corporation's notice of meeting, (b) by or at the
direction of the board of directors or (c) by any
stockholder of the corporation who was a stockholder of
record at the time of giving of notice provided for in
this Section 10(A) of this ARTICLE II of these by-laws,
who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 10(A)
of this ARTICLE II of these by-laws.
(2) For nominations or other business to be
properly brought before an annual meeting by a stockholder
pursuant to Section 10(A)(1)(c) of this ARTICLE II of
these by-laws, the stockholder must have given timely
notice thereof in writing to the secretary of the
corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the secretary
at the principal executive offices of the corporation not
later than the close of business on the 70th day nor
earlier than the close of business on the 90th day prior
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to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not
earlier than the close of business on the 90th day prior
to such annual meeting and not later than the close of
business on the later of the 70th day prior to such annual
meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by
the corporation. In no event shall the public
announcement of an adjournment of an annual meeting
commence a new time period for the giving of a
stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such
person that is required to be disclosed in solicitations
of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and Rule 14a-11
thereunder (including such person's written consent to
being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other
business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in
such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and
(c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination
or proposal is made (i) the name and address of such
stockholder, as they appear on the corporation's books,
and of such beneficial owner and (ii) the class and number
of shares of the corporation which are owned beneficially
and of record by such stockholder and such beneficial
owner.
(3) Notwithstanding anything in the second
sentence of Section 10(A)(2) of this ARTICLE II of these
by-laws to the contrary, in the event that the number of
directors to be elected to the board of directors of the
corporation is increased and there is no public
announcement by the corporation naming all of the nominees
for director or specifying the size of the increased board
of directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 10(A) of
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this ARTICLE II of these by-laws shall also be considered
timely, but only with respect to nominees for any new
positions created by such increase, if it shall be
delivered to the secretary at the principal executive
offices of the corporation not later than the close of
business on the 10th day following the day on which such
public announcement is first made by the corporation.
(B) Special Meetings of Stockholders.
(1) Nominations of persons for election to the
board of directors of the corporation and the proposal of
business to be considered by the stockholders may be made
at a special meeting of stockholders (a) pursuant to the
corporation's notice of meeting, (b) by or at the
direction of the board of directors or (c) by a request of
stockholders calling for the meeting made in accordance
with Section 5 of this ARTICLE II of these by-laws where
such request complies with the notice procedures set forth
in this Section 10(B) of this ARTICLE II of these by-laws.
(2) For nominations or other business to be
properly brought before a special meeting pursuant to
Section 10(B)(1)(c) of this ARTICLE II of these by-laws,
the request of stockholders pursuant to which such meeting
was called shall set forth all information required by the
fourth sentence of Section 10(A)(2) of this ARTICLE II of
these by-laws and such other business must otherwise be a
proper matter for stockholder action.
(3) In the event the corporation calls a
special meeting of stockholders for the purpose of
electing one or more directors to the board of directors,
any such stockholder may nominate a person or persons (as
the case may be), for election to such position(s) as
specified in the corporation's notice of meeting, if the
stockholder's notice required by Section 10(A)(2) of this
ARTICLE II of these by-laws shall be delivered to the
secretary at the principal executive offices of the
corporation not earlier than the close of business on the
90th day prior to such special meeting and not later than
the close of business on the later of the 70th day prior
to such special meeting or the 10th day following the day
on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the
board of directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving
of a stockholder's notice as described above.
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(C) General.
(1) Only such persons who are nominated in
accordance with the procedures set forth in this Section
10 of this ARTICLE II of these by-laws shall be eligible
to be elected at a meeting of stockholders to serve as
directors and only such business shall be considered and
transacted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the
procedures set forth in this Section 10 of this ARTICLE II
of these by-laws. Except as otherwise provided by
applicable law, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was
made or proposed, as the case may be, in accordance with
the procedures set forth in this Section 10 of this
ARTICLE II of these by-laws and, if any proposed nomina-
tion or business is not in compliance with this Section 10
of this ARTICLE II of these by-laws, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 10 of this
ARTICLE II of these by-laws, "public announcement" shall
mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by
the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of
this Section 10 of this ARTICLE II of these by-laws, a
stockholder referred to in this Section 10 of this ARTICLE
II of these by-laws shall also comply with all applicable
requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set
forth in this Section 10 of this ARTICLE II of these by-
laws. Nothing in Section 10 of this ARTICLE II of these
by-laws shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified
circumstances.
Section 11. Inspectors of Elections; Opening and
Closing the Polls. The board of directors by resolution 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,
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employees, agents or representatives, to act at the meetings 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 applicable
law.
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.
Section 12. Stockholder Action by Consent in
Writing. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation, or any
action which may be taken at any annual or special meeting of
stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting
forth the action so taken shall be signed by the holders of
outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have
not consented in writing.
Section 13. Record Date of Action by Consent in
Writing. In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing
without a meeting as provided for in Section 12 of this ARTICLE
II of these by-laws, the board of directors may fix a record
date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the board
of directors, and which date shall not be more than ten days
after the date upon which the resolution fixing the record date
is adopted by the board of directors. Any stockholder of
record seeking to have the stockholders authorize or take
corporate action by a consent in writing shall, by written
notice to the secretary, request the board of directors to fix
a record date. The board of directors shall promptly, but in
all events within ten days after the date on which such a
request is received, adopt a resolution fixing the record date
(unless a record date has previously been fixed by the board of
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directors pursuant to the first sentence of this Section 13 of
this ARTICLE II of these by-laws). If no record date has been
fixed by the board of directors pursuant to the first sentence
of this Section 13 of this ARTICLE II of these by-laws or
otherwise within ten days of the date on which such a request
is received, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting, when no prior action by the board of directors is
required by applicable law, shall be the first date on which a
signed consent in writing setting forth the action taken or
proposed to be taken is delivered to the corporation by
delivery to its registered office in Delaware, its principal
place of business or to any officer or agent of the corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery shall be by hand or by
certified or registered mail, return receipt requested. If no
record date has been fixed by the board of directors and prior
action by the board of directors is required by applicable law,
the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall
be at the close of business on the date on which the board of
directors adopts the resolution taking such prior action.
Section 14. Inspectors of Consent in Writing. In
the event of the delivery, in the manner provided by Section 13
of this ARTICLE II of these by-laws, to the corporation of the
requisite consent or consents in writing to take corporate
action and/or any related revocation or revocations, the
corporation shall engage independent inspectors of elections
for the purpose of promptly performing a ministerial review of
the validity of the consents and revocations. For the purpose
of permitting the inspectors to perform such review, no action
by consent in writing without a meeting shall be effective
until such date as the independent inspectors certify to the
corporation that the consents delivered to the corporation in
accordance with Section 13 of this ARTICLE II of these by-laws
represent at least the minimum number of votes that would be
necessary to take the corporate action. Nothing contained in
this Section 14 of this ARTICLE II of these by-laws shall in
any way be construed to suggest or imply that the board of
directors or any stockholder shall not be entitled to contest
the validity of any consent or revocation thereof, whether
before or after such certification by the independent
inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
Section 15. Effectiveness of Consent in Writing.
Every consent in writing shall bear the date of signature of
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each stockholder who signs the consent and no consent in
writing shall be effective to take the corporate action
referred to therein unless, within sixty days of the earliest
dated consent in writing delivered in accordance with Section
13 of this ARTICLE II of these by-laws, a consent or consents
in writing signed by a sufficient number of holders to take
such action are delivered to the corporation in the manner
prescribed in Section 13 of this ARTICLE II of these by-laws.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Number, Tenure and Qualifications. The
number of directors which shall constitute the whole board
shall be not less than three nor more than thirteen. The first
board shall consist of three directors. Thereafter, within the
limits above specified, the number of directors shall be
determined by resolution of the board of directors. The
directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this ARTICLE
III of these by-laws, and each director elected shall hold
office until his successor shall have been duly elected and
qualified. Directors need not be stockholders.
Section 2. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the
directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold
office until the next annual election of directors and until
such director's successor shall have been duly elected and
qualified, unless sooner displaced. If there are no directors
in office, then an election of directors may be held in the
manner provided by applicable law. If, at the time of filling
any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the
whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the
total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election
to be held to fill any such vacancies or newly created direc-
torships, or to replace the directors chosen by the directors
then in office.
Section 3. General Powers. The business of the
corporation shall be managed by or under the direction of its
board of directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not
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by applicable law or by the certificate of incorporation or by
these by-laws directed or required to be exercised or done by
the stockholders.
MEETING OF THE BOARD OF DIRECTORS
Section 4. Place of Meetings. The board of
directors of the corporation may hold meetings, both regular
and special, either within or without the State of Delaware.
Section 5. Regular Meetings. Regular meetings of
the board of directors may be held without notice at such time
and at such place as shall from time to time be determined by
the board.
Section 6. Special Meetings. Special meetings of
the board may be called by the president, and shall be called
by the president or secretary on the written request of two
directors unless the board consists of only one director; in
which case special meetings shall be called by the president or
secretary on the written request of the sole director.
Section 7. Notice. Notice of any special meeting of
directors shall be given to each director at his business or
residence in writing by hand delivery, first-class or overnight
mail or courier service, telegram or facsimile transmission, or
orally by telephone. If mailed by first-class mail, such
notice shall be deemed adequately delivered when deposited in
the United States mails so addressed, with postage thereon
prepaid, at least five days before such meeting. If by
telegram, overnight mail or courier service, such notice shall
be deemed adequately delivered when the telegram is delivered
to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least twenty-four
hours before such meeting. If by facsimile transmission, such
notice shall be deemed adequately delivered when the notice is
transmitted at least twelve hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at
least twelve hours prior to the time set for the meeting.
Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the board of directors need
be specified in the notice of such meeting, except for
amendments to these by-laws, as provided under Section 1 of
ARTICLE VIII of these by-laws. A meeting may be held at any
time without notice if all the directors are present or if
those not present waive notice of the meeting in the manner
provided for in Section 2 of ARTICLE IV of these by-laws.
Section 8. Quorum. At all meetings of the board a
majority of the whole board shall constitute a quorum for the
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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 provided by applicable law or by the
certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors, the directors present
thereat may adjourn the meeting, from time to time, without
notice other than announcement at the meeting, until a quorum
shall be present. The directors present at a duly organized
meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave
less than a quorum.
Section 9. Action by Consent of Board of Directors.
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 commitment
thereof may be taken without a meeting, if all members of the
board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes
of proceedings of the board or committee.
Section 10. Conference Telephone Meetings. Unless
otherwise restricted by the certificate of incorporation or
these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate
in a meeting of the board of directors, or any committee, by
means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. Designation and Powers of Committees.
The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the
resolution of the board of directors, shall have and may
exercise all the powers and authority of the board of directors
in the management of the business and affairs of the
corporation, including without limitation the power to declare
dividends, to authorize the issuance of the corporation's
capital stock and to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law
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of the State of Delaware, and may authorize the seal of the
corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in
reference to amending the certificate of incorporation (except
that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares
of stock adopted by the board of directors as provided in
Section 151(a) of the General Corporation Law of the State of
Delaware, fix any of the preferences or rights of such shares
relating 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), adopting an
agreement of merger or consolidation (except pursuant to
Section 253 of the General Corporation Law of the State of
Delaware), recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's
property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation. In
the absence or disqualification of any member of such committee
or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member
of the board of directors to act at the meeting in place of any
such absent or disqualified member. 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.
Section 12. Meetings of Committees. A majority of
any committee may determine its action and fix the time and
place of its meetings, unless the board of directors shall
otherwise provide. Notice of such meetings shall be given to
each member of the committee in the manner provided for in
Section 7 of this ARTICLE III of these by-laws. The board of
directors shall have the power at any time to fill vacancies
in, to change the membership of, or to dissolve any such
committee.
Section 13. Minutes of Committee Meetings. Each
committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 14. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the board of
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directors shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any,
of attendance at each meeting of the board of directors and may
be paid a fixed sum for attendance at each meeting of the board
of directors or a stated salary as director. No such payment
shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation
for attending committee meetings.
REMOVAL OF DIRECTORS
Section 15. Unless otherwise restricted by the
certificate of incorporation or by applicable law, any director
or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of
applicable law or of the certificate of incorporation or of
these by-laws, notice is required to be given to any director
or stockholder or any member of any committee of the board of
directors, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on
the records of the corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Such
further notice shall be given as may be required by applicable
law. Notice to directors shall be given in accordance with
Section 7 of ARTICLE III of these by-laws.
Section 2. Whenever any notice is required to be
given under the provisions of applicable law or of the
certificate of incorporation or of these by-laws, a waiver
thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto. Neither the business
transacted at, nor the purpose of, any annual or special
meeting of stockholders or the board of directors or any
committee thereof need be specified in any waiver of notice of
such meeting.
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ARTICLE V
OFFICERS
Section 1. Officers Chosen by the Board of
Directors. The officers of the corporation shall be chosen by
the board of directors and there shall be a chief executive
officer, a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional
vice-presidents, including executive or assistant vice-
presidents, and one or more assistant secretaries and assistant
treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-
laws otherwise provide.
Section 2. Term of Office. The board of directors
at its first meeting after each annual meeting of stockholders
shall choose a chief executive officer, a president, one or
more vice-presidents, a secretary and a treasurer.
Section 3. Other Officers. The board of directors
may appoint such other officers and agents as it shall deem
necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined, from time to time, by the board.
Section 4. Salaries. The salaries of all officers
and agents of the corporation shall be fixed by the board of
directors.
Section 5. Removal and Vacancies. The officers of
the corporation shall hold office until their successors are
chosen and qualified. Any officer elected or appointed by the
board of directors may be removed at any time by the
affirmative vote of a majority of the whole board. Any vacancy
occurring in any office of the corporation filled by the board
of directors or any newly created office of the corporation to
be filled by the board of directors shall be filled by the
board of directors.
Section 6. Officers Appointed by the President. The
president may appoint such officers, other than those that
shall be chosen by the board of directors pursuant to Section 1
of this ARTICLE V of these by-laws, and such agents as may be
necessary or desirable for the conduct of the business of the
corporation. Such other officers and agents shall have such
duties and shall hold their offices for such terms as may be
provided by the board of directors or any committee thereof or
the president, as the case may be. Any such officer or agent
appointed by the president may be removed by the president.
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Any vacancy in an office appointed by the president may be
filled by the president.
THE CHAIRMAN OF THE BOARD OF DIRECTORS
Section 7. The chairman of the board of directors
shall preside at all meetings of the board of directors.
Except as the board of directors shall authorize the execution
thereof in some other manner, he or the president shall execute
bonds, mortgages, and other contracts requiring a seal, under
the seal of the corporation, except where required or permitted
by applicable law to be otherwise signed and executed and
except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other
officer or agent of the corporation.
THE PRESIDENT AND
THE CHIEF EXECUTIVE OFFICER
Section 8. The president shall serve as the chief
executive officer of the corporation, and have the general
powers and duties of supervision and management usually vested
in the office of president of a corporation, including direct
supervision of the day to day activities of the corporation,
and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 9. He shall execute bonds, mortgages and
other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by applicable
law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the
corporation.
THE VICE-PRESIDENT
Section 10. In the absence of the president or in
the event of his inability or refusal to act, the vice-
president (or in the event there be more than one vice-
president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the
order of their election) shall perform 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
corporation is authorized to designate executive vice
presidents or assistant vice presidents. The vice-presidents
shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
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THE SECRETARY AND ASSISTANT SECRETARY
Section 11. The secretary shall attend all meetings
of the board of directors and all meetings of the stockholders
and record all the proceedings of the meetings of the
corporation and of the board of directors in a book to be kept
for that purpose and shall perform like duties for the standing
committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings
of the board of directors, and shall perform such other duties
as may be prescribed by the board of directors or president,
under whose supervision he shall be. He shall have custody of
the corporate seal of the corporation and he, or an assistant
secretary shall have authority to affix the same to any instru-
ment requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant secretary.
The board of directors may give general authority to any
officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 12. 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.
THE TREASURER AND ASSISTANT TREASURERS
Section 13. The treasurer shall have the custody of
the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the
board of directors.
Section 14. He shall disburse the funds of the
corporation as may be ordered by the board of directors, taking
proper vouchers for such disbursements, and shall render to the
president and the board of directors, at its regular meetings,
or when the board of directors so requires, an account of all
his transactions as treasurer and of the financial condition of
the corporation.
Section 15. If required by the board of directors,
he shall give the corporation a bond (which shall be renewed
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every six years) in such sum and with such surety or sureties
as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
his possession or under his control belonging to the
corporation.
Section 16. 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 shall 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.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be
represented by a certificate or shall be uncertificated.
Certificates shall be signed by, or in the name of the
corporation, by the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the
treasurer or an assistant treasurer, or the secretary or an
assistant secretary of the corporation.
Within a reasonable time after the issuance or
transfer of uncertified 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 Section 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 qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Any or all the signatures on a
certificate may be facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is
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issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent or registrar
at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors or any financial
officer 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 or any financial
officer may, in its or his 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 representatives, to advertise the same in such manner as
it shall require and/or to give the corporation a bond in such
sum as it or he 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence or succession,
assignation or authority to transfer, with such proof of the
authenticity of all necessary signatures as the corporation or
its agents may reasonably require, it shall be the duty of the
corporation to issue a new certificate for not more than the
same number of shares (appropriately adjusted for any dividends
paid in shares of the corporation, or any subdivision,
combination or reclassification of the shares of the
corporation), 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 and 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.
FIXING RECORD DATE
Section 5. In order that the corporation may
determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or
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entitled to receive payment of any dividend or other distri-
bution 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 before the date
of such meeting, nor more than sixty days prior to any other
action (except with regard to determining the stockholders
entitled to express consent to corporate action in writing
without a meeting, in which case such record date shall be
fixed in accordance with Section 13 of ARTICLE II of these by-
laws). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the
board of directors may fix a new record date for the adjourn-
ment meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to
recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a
person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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
applicable law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of
the certificate of incorporation.
Section 2. 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
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may modify or abolish any such reserve in the manner in which
it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at
each annual meeting, and at any special meeting of the
stockholders when called for by vote of the stockholders, a
full and clear statement of the business and condition of the
corporation.
CHECKS AND CONTRACTS
Section 4. Except as otherwise required by
applicable law or of the certificate of incorporation or of
these by-laws, all checks, demands for money , notes, contracts
or other instruments of, or executed on behalf of, the
corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time
to time designate. Such authority may be general or confined
to specific instances as the board of directs may determine.
Subject to any restrictions imposed by the board of directors
or the chairman of the board of directors, the president and/or
any vice-president of the corporation may delegate contractual
powers to others under his or her jurisdiction, it being
understood, however, that any such delegation of power shall
not relieve such officer of responsibility with respect to the
exercise of such delegated power.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall
be fixed by resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its
organization and the words "Corporate Seal, Delaware". The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION AND INSURANCE
Section 7. (A) Each person who was or is made a
party or is threatened to be made a party to or is involved in
any action, suit, or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she or a person of whom he or
she is the legal representative is or was a director or officer
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of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust
or other enterprise, including service with respect to employee
benefit plans maintained or sponsored by the corporation,
whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or
in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware 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 said
law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as
provided in Section 7(C) of this ARTICLE VII of these by-laws,
the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the board of directors. The
right to indemnification conferred in this Section 7 of this
ARTICLE VII of these by-laws shall be a contract right and
shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance
of its final disposition, such advances to be paid by the
corporation within 20 days after the receipt by the corporation
of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that
if the General Corporation Law of the State of Delaware
requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered
by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be made only upon
delivery to the corporation of an undertaking by or on behalf
of such director or officer, to repay all amounts so advanced
if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section 7
of this ARTICLE VII of these by-laws or otherwise.
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(B) To obtain indemnification under this Section 7
of this ARTICLE VII of these by-laws, a claimant shall submit
to the corporation a written request, including therein or
therewith such documentation and information as is reasonably
available to the claimant and is reasonably necessary to
determine whether and to what extent the claimant is entitled
to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section
7(B) of this ARTICLE VII of these by-laws, a determination, if
required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested
by the claimant, by Independent Counsel (as hereinafter
defined), or (2) if no request is made by the claimant for a
determination by Independent Counsel, (i) by the board of
directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (ii) if a
quorum of the board of directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, such quorum
of Disinterested Directors so directs, by Independent Counsel
in a written opinion to the board of directors, a copy of which
shall be delivered to the claimant, or (iii) if a quorum of
Disinterested Directors so directs, by the stockholders of the
corporation. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the
request of the claimant, the Independent Counsel shall be
selected by the board of directors unless there shall have
occurred within two years prior to the date of the commencement
of the action, suit or proceeding for which indemnification is
claimed a Change of Control (as hereinafter defined), in which
case the Independent Counsel shall be selected by the claimant
unless the claimant shall request that such selection be made
by the board of directors. If it is so determined that the
claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
(C) If a claim under Section 7(A) of this ARTICLE
VII of these by-laws is not paid in full by the corporation
within thirty days after a written claim pursuant to Section
7(B) of this ARTICLE VII of these by-laws has been received by
the corporation, the claimant may at any time thereafter bring
suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition
where the required undertaking, if any is required, has been
tendered to the corporation) that the claimant has not met the
standard of conduct which makes it permissible under the
General Corporation Law of the State of Delaware for the
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corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including
its board of directors, Independent Counsel or stockholders) to
have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard
of conduct set forth in the General Corporation Law of the
State of Delaware, nor an actual determination by the
corporation (including its board of directors, Independent
Counsel or stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the ac-
tion or create a presumption that the claimant has not met the
applicable standard of conduct.
(D) If a determination shall have been made pursuant
to Section 7(B) of this ARTICLE VII of these by-laws that the
claimant is entitled to indemnification, the corporation shall
be bound by such determination in any judicial proceeding
commenced pursuant to Section 7(C) of this ARTICLE VII of these
by-laws.
(E) The corporation shall be precluded from
asserting in any judicial proceeding commenced pursuant to
Section 7(C) of this ARTICLE VII of these by-laws that the
procedures and presumptions of this Section 7 of this ARTICLE
VII of these by-laws are not valid, binding and enforceable and
shall stipulate in such proceeding that the corporation is
bound by all the provisions of this Section 7 of this ARTICLE
VII of these by-laws.
(F) The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section 7 of this ARTICLE
VII of these by-laws shall not be exclusive of any other right
which any person may have or hereafter acquire under any
statute, provision of the certificate of incorporation, by-
laws, agreement, vote of stockholders or Disinterested Direc-
tors or otherwise. No repeal or modification of this Section 7
of this ARTICLE VII of these by-laws shall in any way diminish
or adversely affect the rights of any director, officer,
employee or agent of the corporation hereunder in respect of
any occurrence or matter arising prior to any such repeal or
modification.
(G) 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
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would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law of
the State of Delaware. To the extent that the corporation
maintains any policy or policies providing such insurance, each
such director or officer, and each such agent or employee to
which rights to indemnification have been granted as provided
in Section 7(H) of this ARTICLE VII of these by-laws, shall be
covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage thereunder
for any such director, officer, employee or agent.
(H) The corporation may, to the extent authorized
from time to time by the board of directors, grant rights to
indemnification, and rights to be paid by the corporation the
expenses incurred in defending any proceeding in advance of its
final disposition, to any employee or agent of the corporation
to the fullest extent of the provisions of this Section 7 of
this ARTICLE VII of these by-laws with respect to the
indemnification and advancement of expenses of directors and
officers of the corporation.
(I) If any provision or provisions of this Section 7
of this ARTICLE VII of these by-laws shall be held to be
invalid, illegal or unenforceable for any reason whatsoever:
(1) the validity, legality and enforceability of the remaining
provisions of this Section 7 of this ARTICLE VII of these by-
laws (including, without limitation, each portion of any
subsection of this Section 7 of this ARTICLE VII of these by-
laws containing any such provision held to be invalid, illegal
or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (2) to the fullest extent possible, the
provisions of this Section 7 of this ARTICLE VII of these by-
laws (including, without limitation, each such portion of any
subsection of this Section 7 of this ARTICLE VII of these by-
laws containing any such provision held to be invalid, illegal
or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or
unenforceable.
(J) For purposes of this Section 7 of this ARTICLE
VII of these by-laws:
(1) "Change of Control" means:
(a) The acquisition by any individual,
entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act (a "Person")
of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or
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more of either (i) the then outstanding shares of
common stock of the corporation (the "Outstanding
Corporation Common Stock") or (ii) the combined
voting power of the then outstanding voting
securities of the corporation entitled to vote
generally in the election of directors (the
"Outstanding Corporation Voting Securities");
provided, however, that for purposes of this Section
7(J)(1)(a) of this ARTICLE VII of these by-laws, the
following acquisitions shall not constitute a Change
of Control: (i) any acquisition directly from the
corporation, (ii) any acquisition by the corporation,
(iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the
corporation or any other corporation controlled by
the corporation or (iv) any acquisition by any other
corporation pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of Section
7(J)(1)(c) of this ARTICLE VII of these by-laws; or
(b) Individuals who, as of the date
hereof, constitute the board of directors (the
"Incumbent Board") cease for any reason to constitute
at least a majority of the board of directors;
provided, however, that any individual becoming a
director subsequent to the date hereof whose
election, or nomination for election by the
corporation's stockholders, was approved by a vote of
at least a majority of the directors then comprising
the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result
of an actual or threatened election contest with
respect to the election or removal of directors or
other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
board of directors; or
(c) Consummation of a reorganization,
merger or consolidation or sale or other disposition
of all or substantially all of the assets of the
corporation (a "Business Combination"), in each case,
unless, following such Business Combination, (i) all
or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the
Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities immediately prior to
such Business Combination beneficially own, directly
or indirectly, more than 50% of, respectively, the
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then outstanding shares of common stock and the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election
of directors, as the case may be, of the corporation
resulting from such Business Combination (including,
without limitation, another corporation which as a
result of such transaction owns the corporation or
all or substantially all of the corporation's assets
either directly or through one or more subsidiaries)
in substantially the same proportions as their
ownership, immediately prior to such Business
Combination of the Outstanding Corporation Common
Stock and Outstanding Corporation Voting Securities,
as the case may be, (ii) no Person (excluding any
corporation resulting from such Business Combination
or any employee benefit plan (or related trust) of
the corporation or such corporation resulting from
such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively,
the then outstanding shares of common stock of the
corporation resulting from such Business Combination
or the combined voting power of the then outstanding
voting securities of such corporation except to the
extent that such ownership existed prior to the
Business Combination and (iii) at least a majority of
the members of the board of directors of the
corporation resulting from such Business Combination
were members of the Incumbent Board at the time of
the execution of the initial agreement, or of the
action of the board of directors, providing for such
Business Combination; or
(d) Approval by the stockholders of the
corporation of a complete liquidation or dissolution
of the corporation.
(2) "Disinterested Director" means a director
of the corporation who is not and was not a party to the
matter in respect of which indemnification is sought by
the claimant.
(3) "Independent Counsel" means a law firm, a
member of a law firm, or an independent practitioner, that
is experienced in matters of corporation law and shall
include any person who, under the applicable standards of
professional conduct then prevailing, would not have a
conflict of interest in representing either the
corporation or the claimant in an action to determine the
claimant's rights under this Section 7 of this ARTICLE VII
of these by-laws.
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(K) Any notice, request or other communication
required or permitted to be given to the corporation under this
Section 7 of this ARTICLE VII of these by-laws shall be in
writing and either delivered in person or sent by telex,
telegram or facsimile transmission, or overnight mail or
courier service, or certified or registered mail, postage
prepaid, return receipt requested, to the secretary of the
corporation and shall be effective only upon receipt by the
secretary.
PROXIES
Section 8. Unless otherwise provided by resolution
adopted by the board of directors, the president or any vice-
president may from time to time appoint an attorney or
attorneys or agent or agents of the corporation, in the name
and on behalf of the corporation, to cast the votes which the
corporation may be entitled to cast as the holder of stock or
other securities in any other corporation, any of whose stock
or other securities may be held by the corporation, at meetings
of the holders of the stock or other securities of such other
corporation, or to consent in writing, in the name of the
corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so
appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed in the name
and on behalf of the corporation and under its corporate seal
or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or
repealed or new by-laws may be adopted by the stockholders or
by the board of directors, when such power is conferred upon
the board of directors by the certificate of incorporation at
any regular meeting of the stockholders or of the board of
directors at any special meeting of the stockholders or of the
board of directors if notice of such alteration, amendment,
repeal or adoption of new by-laws be contained in the notice of
such special meeting. If the power to adopt, amend or repeal
by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the
power of the stockholders to adopt, amend or repeal by-laws.
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