UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the Securities Exchange Act
of 1934
Check the appropriate box:
[ ] Preliminary Information Statement
[ ] Confidential, for use of the Commission only (as permitted by Rule
14c-5(d)(2)
[x] Definitive Information Statement
NOVACON CORPORATION
(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ]
Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
Common Stock, $0.01 par Value
(2) Aggregate number of securities to which transaction applies:
15,000,000
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing
fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value oftransaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid: Not Applicable
(2) Form, Schedule or Registration Statement No.: Not Applicable
(3) Filing Party: Not Applicable
(4) Date Filed: Not Applicable
NOVACON CORPORATION
5451 Hilltop Avenue
Lake Elmo, MN 55042
(651) 704-9160
_________________
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held February 14, 2001
To the Shareholders of Novacon Corporation:
The Annual Meeting of Stockholders of Novacon Corporation ("Novacon")
will be held at the Park Inn Hotel, 1244 Canterbury Road, Shakopee, Minnesota
55579, on Wednesday, February 14, 2001, at 4:00 p.m., local time, for the
following purposes (which are more fully described in the Information
Statement that will be mailed prior to the Annual Meeting):
1. To consider and vote upon a proposal to approve and adopt an amended and
restated certificate of incorporation to (a) decrease the number of our
authorized shares of Common Stock, $0.01 par value, from 15,000,000 to
1,250,000 shares of Common Stock, $0.001 par value, to reflect our inactive
business status, and (b) increase the authorized shares of Common Stock,
$0.001 par value, to 50,000,000 shares. In addition, among other matters, we
will change our name from Novacon Corporation to "NVCN Corporation," all as
more fully set forth in the Information Statement, a copy of which proposed
amended and restated certificate of incorporation is attached thereto as
Appendix A;
2. To consider and vote upon a proposal to approve and adopt amended
bylaws, all as more fully set forth in the Information Statement, a copy
of which proposed amended bylaws are attached thereto as Appendix B;
3. To elect three (3) directors, each for a one-year term and until their
successors are elected and qualified; and
4. To transact any other business that may properly come before the
Novacon Annual Meeting or any adjournment thereof.
The Board of Directors has fixed the close of business on January 16,
2001, as the record date for determination of stockholders entitled to
notice of and to vote at the meeting or any adjournments thereof.
A copy of our annual report on Form 10-KSB for the fiscal year ended May 31,
2000 and a copy of our quarterly report on From 10-QSB for the fiscal
quarter ended August 31, 2000 are enclosed with this Information Statement.
The Form 10-KSB includes information about our operations during the year
and our audited fiscal year financial statements. The Form 10-QSB
containing information about our operations during the first fiscal quarter
of our fiscal year ending August 31, 2000 and unaudited financial statements
for that period.
Except to the extent that they are incorporated by reference in the
Information Statement, the Form 10-KSB, and the Form 10-QSB do not
constitute informational material in connection with the Annual Meeting.
YOU ARE CORDIALLY INVITED TO ATTEND THE MEETING. THE AFFIRMATIVE VOTE OF AT
LEAST A MAJORITY OF THE OUTSTANDING SHARES OF NOVACON COMMON STOCK IS
REQUIRED FOR THE APPROVAL OF THE PROPSALS. WHETHER OR NOT YOU PLAN TO ATTEND
THE MEETING, PLEASE COMPLETE, SIGN, DATE AND PROMPTLY RETURN THE ENCLOSED
BALLOT CARD IN THE ENVELOPE PROVIDED WITH THE INFORMATION STATEMENT, AS IT
IS IMPORTANT THAT YOUR SHARES BE REPRESENTED. NO POSTAGE IS NEEDED IF
MAILED IN THE UNITED STATES.
By Order of the Board of Directors,
John D. Lang
Secretary
January 20, 2001
NOVACON CORPORATION
INFORMATION STATEMENT
GENERAL INFORMATION
This information statement is first being furnished on or about
January 20, 2001, to our shareholders of record as of the close of business
on January 16, 2001 in connection with (1) the amendment of our Amended and
Restated Certificate of Incorporation, (2) the amendment of our Bylaws, and
(3) the election of Directors. The amendment to our Certificate of
Incorporation, which is described in more detail below, will (a) change the
name of Novacon Corporation to NVCN Corporation, (b) authorize a new class of
50,000,000 shares of Common Stock, $0.001 par value, and (c) decrease the
number of our shares of authorized Common Stock, $0.01 par value, from
15,000,000 shares to 1,250,000 shares of Common Stock, $0.001 par value.
Our Board of Directors has approved the amendment of the Certificate
of Incorporation and the Bylaws.
WE ARE NOT ASKING YOU FOR A PROXY, AND YOU ARE REQUESTED NOT TO SEND US ONE,
WITH RESPECT TO THE AMENDMENT. WE ARE SENDING THIS INFORMATION STATEMENT TO
YOU ONLY FOR INFORMATIONAL PURPOSES.
For additional information about us, please refer to our Annual
Report on Form 10-KSB for the year ended May 31, 2000, and the other periodic
filings (including our quarterly reports on Form 10-QSB dated August 31, 2000
and November 30, 2000, and our periodic report on Form 8-K dated September 14,
2000) we have made with the Securities and Exchange Commission, or SEC, which
are incorporated herein by this reference. A copy of our Annual Report is
being furnished to you with this Information Statement. If you would like
copies of any of those documents, you can request (by phone or in writing)
copies of them by sending your request to our principal office: Novacon
Corporation, 5451 Hilltop Avenue, Lake Elmo, MN 55042-9539, telephone
(651) 704-9160, Attn: John D. Lang, Secretary. We will not charge you for any
of the copies. You can also obtain copies of those documents from the
electronic filing site maintained by the SEC on the world-wide web
(www.sec.gov/archives/edgar), from the SEC's office at Judiciary Plaza,
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 or the various
regional SEC offices.
THE AMENDMENT TO THE CERTIFICATE OF INCORPORATION
PROPOSAL NO. 1
Our authorized capital currently consists of 15,000,000 shares of
Common Stock, par value $0.01 per share. Our Board of Directors have
determined that it would be in our best interest to amend and restate our
certificate of incorporation to create a new class of 50,000,000 shares of
Common Stock, $0.001 par value and decrease and change the number of our
authorized shares of Common Stock, $0.01 par value, from 15,000,000 to
1,250,000 shares of the new class of Common Stock, $0.001 par value, to
reflect our inactive business status. In addition, among other matters,
we will change our name from Novacon Corporation to "NVCN Corporation."
After the amending and restating our certificate of incorporation, it will
read, in its entirety, as set forth in Appendix A attached hereto. PLEASE
CAREFULLY READ APPENDIX A THAT FULLY SETS FORTH THE PROPOSED AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION. The amended and restated certificate
of incorporation will be effected by (i) approval of the proposed amended
and restated certificate of incorporation by a majority of our stockholders
entitled to vote at our Annual Meeting and (ii) filing the amended and
restated certificate of incorporation with the Secretary of State for the
State of Delaware. The amended and rested certificate of incorporation will
become effective when the filing is accepted by the Secretary of State's
office.
THE AMENDMENT TO THE BYLAWS
PROPOSAL NO. 2
Our Board of Directors have determined that it would be in our best
interest to amend our bylaws. After the amending our bylaws, they will read, in
their entirety, as set forth in Appendix B attached hereto. PLEASE CAREFULLY
READ APPENDIX B THAT FULLY SETS FORTH THE PROPOSED AMENDED BYLAWS. The amended
bylaws will be effected by approval of the proposed amended bylaws by a
majority of our stockholders entitled to vote at our Annual Meeting. The
amended bylaws will become effective when approved by our stockholders.
APPROVAL OF THE AMENDMENTS
On November 30, 2000, our Board of Directors approved the
amendments to our certificate of incorporation and bylaws by unanimous
written consent. In approving the amendments, our Board of Directors
considered a number of factors, including the fact that we have inactive
business operations, that all of shares of presently authorized capital
stock have been issued, that any amalgamation with a third party will
probably require that our stockholders maintain a only a small holding,
and that we may have to issue a substantial number of shares of common
stock in the future in connection with any amalgamation.
The actions described in this information statement will not
afford our stockholders the opportunity to dissent from the actions
described herein, or to receive an agreed or judicially determined value
for their shares.
TAX CONSEQUENCES
The amendment of our certificate of incorporation as is described in
this information statement should not result in any taxable gain or loss to
us or to you as a stockholder. The tax basis for your shares should also not
be affected by the amendment, nor should the holding period for your shares.
The federal income tax discussion included in this section is included as
general information only. You are urged to consult with your own tax advisor
to determine your tax effects, if any, from the amendment.
BENEFICIAL OWNERSHIP
The following table sets forth certain information regarding the
beneficial ownership of our outstanding securities as of January 15, 2001 by
the following parties:
* all those persons or entities known by us to be beneficial owners of
5% or more of each class of our outstanding securities, or
"5% Stockholders;"
* each director and each of our Chief Executive Officer and the next
four highest paid officers, or our Named Executive Officers; all directors and
our executive officers as a group; and
* parties that do not fall into any of the categories listed above, but
which approved the amendment.
The data presented are based on information provided to us by the parties
specified above and are being included in this information statement to
provide you with information regarding the relative ownership interests
of the parties who have consented in writing to the amendment and who hold
management positions with us.
Name of Beneficial Owner Class Number of Shares Percentage of Class (1)
David P. Lang Common 3,957,074 26.4%
Chief Executive Officer,
Chief Financial Officer,
and Director
John D. Lang Common 1,090,000 7.3%
Secretary
Paul D. Rieff Common 15,000 0.1%
Director
Walter Zohmann Common 0 --
All directors and officers
as a group (4) persons Common 5,062,074 33.7%
______________________
(1) Based on 15,000,000 outstanding shares of Common Stock. The inclusion
of any shares as "beneficially owned" does not constitute an admission of
beneficial ownership (which has a broad definition under the securities
laws) of these shares. Unless otherwise indicated, each person listed has
sole investment and voting power with respect to the shares listed.
ELECTION OF DIRECTORS
PROPOSAL NO. 3
The Company's Certificate of Incorporation provides that the Board of
Directors shall not consist of less than three or more than seven members, as
determined from time to time by the Board. Directors are to serve for one-year
terms. At the 2000 Annual Meeting, three Directors are to be elected to hold
office for the term expiring at the next annual meeting of the stockholders to
be held in 2001, and until his/her successor has been elected and qualified,
or until his/her death, resignation or removal, if earlier.
Nominees
David P. Lang, Director, Paul D. Rieff, Director, and Walter Zohmann,
Director, have been nominated for election to the Board for terms expiring in
2001. Messrs. Lang, Rieff and Zohmann are current members of the Board.
Certain information regarding each nominee is set forth below:
Nominees for Director (Terms Expiring in 2001)
David P. Lang, age 54, has been the Chief Executive Officer, President
and Chief Financial Officer of the Company since April 1986 and a Director
since 1984. Mr. Lang held international marketing management positions with
Medtronic Europe, S.A., Paris, France (a subsidiary of Medtronic, Inc.) from
1970 to 1975; Medical Europe GmbH, Munich, Germany (a subsidiary of Medical,
Inc.) from 1975 to 1977; Cyberex Corporation from 1979 to 1981; and the
Company since 1982 to present. Mr. Lang has over 15 years business experience
in China, having negotiated the first Sino-American medical electronics joint
venture in 1985. He has lectured in international business at the University
of Minnesota and the University of St. Thomas, and taught courses at
Metropolitan State University. Mr. Lang is a graduate of Harvard College, B.A.
1968.
Paul D. Rieff, age 64, has been a Director since 1996. Mr. Rieff has
been Managing Director of Asia Cardiovascular Products (ACP), Hong Kong, a
subsidiary of Getz Bros. & Co., Inc., San Francisco, California since 1985.
Prior to joining ACP, he held international marketing management positions
with several medical device manufacturers, including Medtronic, Inc. and
Medical, Inc. Mr. Rieff is a graduate of the University of Minnesota, B.A.
1968.
Walter Zohmann, age 52, has been a Director since 1998. Mr. Zohmann has
been the owner and principal of International Medical Development, Inc., Park
City, Utah since 1990. International Medical Development, Inc. is a
manufacturer and distributor of spinal needles and airway management products.
Prior to organizing his company, he held sales and marketing positions with
Johnson & Johnson in Germany and the United States. Mr. Zohmann is a graduate
of the University of Nurnburg, B.S. 1970.
Meetings and Committees of the Board of Directors
The Board of Directors held one meeting during 2000 and approved three
consent resolutions.
The Company presently has no committees, but intends to form a
compensation committee and audit committee consisting on non-employee
directors following the seating of directors elected at the Annual Meeting.
Compensation to Directors
The Directors received no fees or form of compensation for their
services in such office during 2000, nor does the Company intend to pay any
such fees or compensation during the ensuing year.
Stock Options/Consulting Fees
The Directors received no stock option grants or consulting fees for their
services in such office during 2000, nor does the Company intend to grant
any such options or pay any such fees during the ensuing year.
EXECUTIVE COMPENSATION
The following table sets forth certain information regarding
compensation paid during each of the Company's last three fiscal years to
the Company's current chief executive officer (the "Named Executive
Officers"). No other executive officer had total compensation in fiscal year
2000 (based on salary and bonus) exceeding $100,000.
Summary Compensation Table
Name and Annual Compensation Long-Term All Other
Principal Position Year Salary($) Compensation Compensation(1)
David P. Lang 2000 75,000 0 0
Chief Executive 1999 75,000 0 0
Officer, Chief 1998 75,000 0 0
Financial Officer
______________________
(1) Options, Grants and Exercises during Fiscal 2000. The Company granted no
options to Named Executive Officers during Fiscal 2000, nor were any options
exercised. The Company has no outstanding stock appreciation rights or stock
options.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In November 1999, the Company approved the issuance of 2,927,096 and
1,000,000 shares of Common Stock to David P. Lang and John D. Lang,
respectively, in partial satisfaction of then accrued, but unpaid salaries,
of $78,760 and $26,500. On the date of Board approval action, the directors
deemed the fair market value of the Company's Common Stock to be $0.0265 per
share. The shares were issued during November 2000. David P. Lang and John D.
Lang are, respectively, father and son.
COMPLIANCE WITH REPORTING REQUIREMENTS OF EXCHANGE ACT
Section 16 of the Securities Exchange Act of 1934, and the rules
promulgated thereunder, requires the Company's officers, directors, and
holders of 10% or more of its outstanding Common Stock to file certain
reports with the Securities and Exchange Commission. To the Company's best
knowledge, based solely on information provided to it by the reporting
individuals, all of the reports required to be filed b these individuals
have been filed, except that Initial Report son Form 3 for John D. Lang were
filed late.
OTHER MATTERS
The Board of Directors is not aware that any matter other than those
described in the Notice of Annual Meeting of Stockholders will be presented
for action at the meeting.
RELATIONSHIP WITH INDEPENDENT ACCOUNTANTS
Silverman Olson Thorvilson & Kaufmann, Ltd., has served as the Company's
principal independent accountant to audit the Company's financial statements
for the fiscal years 1992 through 2000. Representatives of Silverman Olson
Thorvilson & Kaufmann, Ltd. are expected to be present at the Annual Meeting
and will have the opportunity to make a statement, if they desire to do so,
and to respond to appropriate questions.
STOCKHOLDER PROPOSALS FOR THE 2001 ANNUAL MEETING
All stockholder proposals intended to be presented at the 2001 Annual
Meeting of Stockholders must be received by the Company at its offices on or
before July 31, 2001. In addition, a stockholder must give notice to the
Company prior to July 31, 2001, of any proposal which such stockholder
intends to raise at the 2001 Annual Meeting. If the Company receives notice
of such proposal after July 31, 2001, the persons named in the proxy solicited
by the Company's Board of Directors for the 2001 Annual Meeting may exercise
discretionary voting powers with respect to such proposal. Further, under the
Company's proposed Amended and Restated Certificate of Incorporation, or
business to be properly brought before the 2001 Annual Meeting, a stockholder
must give notice in writing to the Secretary of the Company no later than
50 days prior to the date of the meeting. Any proposal not submitted by such
date will not be considered at the 2001 Annual Meeting.
REPORT ON FORM 10-KSB
A copy of the Company's Annual Report on Form 10-KSB for the
fiscal year ended May 31, 2000, accompanies the Notice of Annual Meeting of
the Stockholders and this Information Statement.
It is important that you attend the Annual Meeting in person or by your
Ballot. Stockholders who do plan to attend the Annual Meeting in person are
urged to complete, sign, date and return the enclosed Ballot by return mail.
January 20, 2001 BY ORDER OF THE BOARD OF DIRECTORS
John D. Lang, Secretary
APPENDIX A
PROPOSED AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF NOVACON CORPORATION
The undersigned, David P. Lang, certifies that he is Chief Executive Officer
of Novacon Corporation, a corporation organized and existing under the laws
of the State of Delaware (hereinafter called the "Corporation"), and does
hereby certify as follows:
1. The current name of the Corporation is Novacon Corporation. The Corporation
was originally incorporated as Cardio-Pace Medical Inc. and the original
Certificate of Incorporation of the Corporation was filed with the Secretary
of State of the State of Delaware on April 20, 1981. The original Certificate
of Incorporation was amended on June 25, 1981, May 13, 1983, January 30, 1984,
August 16, 1984, October 9, 1984, and November 24, 1987.
2. This Amended and Restated Certificate of Incorporation was duly adopted by
and in accordance with the provisions of Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware as set forth in Title 8 of
the Delaware Code (the "GCL").
3. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Corporation's
Certificate of Incorporation.
4. Effective upon the filing of this Amended and Restated Certificate of
Incorporation with the Secretary of State, the Company's name will be NVCN
Corporation.
5. Effective upon the filing of this Restated and Amended Certificate of
Incorporation with the Delaware Secretary of State (the "Effective Time"),
each share of Common Stock outstanding shall be reclassified and combined
into a lesser number of shares of common stock at a ratio of 12:1, such that
each twelve (12) shares of common stock issued and outstanding shall become
one (1) share of common stock. No fractional shares of Common Stock shall be
issued as a result of such reclassification and combination, but the fair
value of fractions of a share shall be paid in lieu thereof; each holder
thereof shall be entitled to receive a cash payment equal to the holder's
fraction of a share of Common Stock multiplied by the per share fair market
value, as determined by the Board of Directors.
6. The text of the Amended and Restated Certificate of Incorporation of the
Corporation is hereby amended and restated to read in its entirety as
follows:
FIRST: The name of the Corporation is NVCN Corporation (the "Corporation").
SECOND: The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, City of Wilmington 19801, County of New
Castle. The name of its registered agent at that address is CT Corporation
System.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware (the "GCL").
FOURTH:
(a) Authorized Capital Stock. The total number of shares of stock which the
Corporation shall have authority to issue is (i) 50,000,000 shares of common
stock, par value $0.001 per share (the "Common Stock") and (ii) 10,000,000
shares of preferred stock, par value $0.01 per share (the "Preferred Stock").
(b) Common Stock. The powers, preferences and rights, and the
qualifications, limitations and restrictions, of each class of the Common
Stock are as follows:
(1) No Cumulative Voting. The holders of shares of Common Stock shall not
have cumulative voting rights.
(2) Dividends; Stock Splits. Subject to the rights of the holders of
Preferred Stock, and subject to any other provisions of this Amended and
Restated Certificate of Incorporation, as it may be amended from time to time,
holders of shares of Common Stock shall be entitled to receive such dividends
and other distributions in cash, stock or property of the Corporation when, as
and if declared thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefor.
(3) Liquidation, Dissolution, etc. In the event of any liquidation,
dissolution or winding up (either voluntary or involuntary) of the
Corporation, the holders of shares of Common Stock shall be entitled to
receive the assets and funds of the Corporation available for distribution
after payments to creditors and to the holders of any Preferred Stock of the
Corporation that may at the time be outstanding, in proportion to the number
of shares held by them, respectively.
(4) Merger, etc. In the event of a merger or consolidation of the
Corporation with or into another entity (whether or not the Corporation is
the surviving entity), the holders of each share of Common Stock shall be
entitled to receive the same per share consideration on a per share basis.
(5) No Preemptive or Subscription Rights. No holder of shares of Common
Stock shall be entitled to preemptive or subscription rights.
(c) Preferred Stock. The Board of Directors is hereby expressly authorized
to provide for the issuance of all or any shares of the Preferred Stock in
one or more classes or series, and to fix for each such class or series such
voting powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights
and such qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions adopted by the Board
of Directors providing for the issuance of such class or series, including,
without limitation, the authority to provide that any such class or series
may be (i) subject to redemption at such time or times and at such price or
prices; (ii) entitled to receive dividends (which may be cumulative or
non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the dividends payable on
any other class or classes or any other series; (iii) entitled to such
rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; or (iv) convertible into, or exchangeable for, shares of
any other class or classes of stock, or of any other series of the same or
any other class or classes of stock, of the Corporation at such price or
prices or at such rates of exchange and with such adjustments; all as may
be stated in such resolution or resolutions.
(d) Power to Sell and Purchase Shares. Subject to the requirements of
applicable law, the Corporation shall have the power to issue and sell all
or any part of any shares of any class of stock herein or hereafter
authorized to such persons, and for such consideration, as the Board of
Directors shall from time to time, in its discretion, determine, whether
or not greater consideration could be received upon the issue or sale of
the same number of shares of another class, and as otherwise permitted by
law. Subject to the requirements of applicable law, the Corporation shall
have the power to purchase any shares of any class of stock herein or
hereafter authorized from such persons, and for such consideration, as the
Board of Directors shall from time to time, in its discretion, determine,
whether or not less consideration could be paid upon the purchase of the
same number of shares of another class, and as otherwise permitted by law.
(e) Reclassification of Shares of Common Stock, $0.01 Par Value. At the
Effective Time the issued and outstanding shares of previously authorized
common stock, $0.01 par value, of the Corporation shall be and hereby are
reclassified and combined into a lesser number of shares of Common Stock,
$0.001 par value, at a ratio of 12:1, such that each twelve (12) shares of
previously authorized common stock, $0.01 par value, issued and outstanding
shall be become one (1) share of Common Stock, $0.001 par value. No
fractional shares of common stock shall be issued as a result of such
reclassification and combination, but the fair value of fractions of a share
shall be paid in lieu thereof; each holder thereof shall be entitled to
receive a cash payment equal to the holder's fraction of a share of Common
Stock multiplied by the per share fair market value, as determined by the
Board of Directors.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and
of its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors.
(b) The number of directors of the Corporation shall be as from time to time
fixed by the Board of Directors, and such number shall never be less than
three nor more than thirteen.
(c) A director shall hold office until the annual meeting for the year in
which his or her term expires and until his or her successor shall be elected
and shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
(d) Any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other vacancy
occurring on the Board of Directors may be filled by a majority of the Board
of Directors then in office, even if less than a quorum, or by a sole
remaining director. Any director of any class elected to fill a vacancy
resulting from an increase in the number of directors of such class shall
hold office for a term that shall coincide with the remaining term of that
class. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of the
director whose departure from the Board of Directors created the vacancy. Any
or all of the directors of the Corporation may be removed from office at any
time by the affirmative vote of the holders of at least a majority of the
voting power of the Corporation's then outstanding capital stock, and of each
class of capital stock, entitled to vote generally in the election of
directors.
(e) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done
by the Corporation, subject, nevertheless, to the provisions of the GCL, this
Certificate of Incorporation, and the By-Laws; provided, however, that no
portion of the By-Laws hereafter adopted by the stockholders shall invalidate
any prior act of the directors which would have been valid if such portion of
the By-Laws had not been adopted.
SIXTH: No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL as the same exists or may hereafter
be amended. If the GCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the
fullest extent authorized by the GCL, as so amended. Any repeal or
modification of this Article SIXTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification with respect
to acts or omissions occurring prior to such repeal or modification.
SEVENTH: The Corporation shall indemnify its directors and officers to the
fullest extent authorized or permitted by law, as now or hereafter in effect,
and such right to indemnification shall continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to
the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs, executors or personal
or legal representatives) in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors. The right to
indemnification conferred by this Article SEVENTH shall include the right to
be paid by the Corporation the expenses incurred in defending or otherwise
participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the Board
of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those
conferred in this Article SEVENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses conferred in
this Article SEVENTH shall not be exclusive of any other right which any
person may have or hereafter acquire under this Certificate of Incorporation,
the By-Laws of the Corporation, any statute, agreement, vote of stockholders
or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH by the stockholders of the
Corporation shall not adversely affect any rights to indemnification and to
the advancement of expenses of a director or officer of the Corporation
existing at the time of such repeal or modification with respect to any acts
or omissions occurring prior to such repeal or modification.
EIGHTH: Unless otherwise required by law, special meetings of stockholders,
for any purpose or purposes may be called by either (i) the Chairman of the
Board of Directors, if there be one, (ii) the Chief Executive Officer, (iii)
the Board of Directors or (iv) any two members of the Board of Directors.
The ability of the stockholders to call a special meeting is hereby
specifically denied.
NINTH: Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation, and the ability of the stockholders to
consent in writing to the taking of any action is
hereby specifically denied.
TENTH: Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the By-Laws of the Corporation.
ELEVENTH: In furtherance and not in limitation of the powers
conferred upon it by the laws of the State of Delaware, the Board of
Directors shall have the power to adopt, amend, alter or repeal the
Corporation's By-Laws. The affirmative vote of at least a majority of the
entire Board of Directors shall be required to adopt, amend, alter or repeal
the Corporation's By-Laws. The Corporation's By-Laws also may be adopted,
amended, altered or repealed by the affirmative vote of the holders of at
least eighty percent (80%) of the voting power of the shares of the capital
stock, and each class of capital stock present in person or by proxy at any
duly called and held meeting of the stockholders.
TWELFTH: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation in the manner
now or hereafter prescribed in this Certificate of Incorporation, the
Corporation's By-Laws or the GCL, and all rights herein conferred upon
stockholders are granted subject to such reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed as of this __ day of February
2001 in its name and on its behalf by its Chief Executive Officer, pursuant
to Section 103 of the General Corporation Law of the State of Delaware.
NOVACON CORPORATION
By: ____________________
Name: David P. Lang
Title: Chief Executive Officer
APPENDIX B
PROPOSED AMENDED BYLAWS
BY-LAWS of NOVACON CORPORATION
A Delaware Corporation
Effective February 15, 2001
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of NVCN Corporation (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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and 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 or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be
held on such date and at such time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect directors, and transact such other
business as may properly be brought before the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
certificate of incorporation of the Corporation, as amended and restated
from time to time (the "Certificate of Incorporation"), special meetings of
stockholders, for any purpose or purposes, may be called by either (i) the
Chairman of the Board of Directors, (ii) the Chief Executive Officer, or
(iii) the Board of Directors. Such request shall state the purpose or
purposes of the proposed meeting. At a special meeting of the stockholders,
only such business shall be conducted as shall be specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors.
Section 4. Notice. The Corporation shall give each stockholder written notice
of any meeting of stockholders. The notice shall state the place, date and
hour of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise required by law,
the written notice of any meeting shall be given not less than ten nor more
than sixty days before the date of the meeting to each stockholder entitled
to vote at such meeting.
Section 5. Quorum. Except as otherwise required by law or by the Certificate
of Incorporation, the holders of a majority of the capital 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. A quorum, once established, shall not be broken by
the withdrawal of enough votes to leave less than a quorum. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time in the manner
provided in Section 6, until a quorum is present or represented.
Section 6. Adjournment. Any meeting of the stockholders may be adjourned from
time to time to reconvene at the same or some other place, and notice need not
be given of any such adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original 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, notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting not less than ten nor more than sixty
days before the date of the meeting.
Section 7. Proxies. Any stockholder entitled to vote may do so in person or
by his or her proxy appointed by an instrument in writing subscribed by such
stockholder or by his or her attorney thereunto authorized, delivered to the
Secretary of the meeting; provided, however, that no proxy shall be voted or
acted upon after three years from its date, unless said proxy provides for a
longer period. Without limiting the manner in which a stockholder may
authorize another person or persons to act for him or her as proxy, either
of the following shall constitute a valid means by which a stockholder may
grant such authority:
(i) A stockholder may execute a writing authorizing another person or
persons to act for him or her as proxy. Execution may be accomplished by
the stockholder or his or her authorized officer, director, employee or agent
signing such writing or causing his or her signature to be affixed to such
writing by any reasonable means, including, but not limited to, by facsimile
signature.
(ii) A stockholder may authorize another person or persons to act for him
or her as proxy by transmitting or authorizing the transmission of a telegram
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, provided that any such
telegram or other means of electronic transmission must either set forth or
be submitted with information from which it can be determined that the
telegram or other electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission authorizing another person or persons to act as proxy
for a stockholder may be substituted or used in lieu of the original writing
or transmission for any and all purposes for which the original writing or
transmission could be used; provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of
the entire original writing or transmission.
Section 8. Voting. At all meetings of the stockholders at which a quorum is
present, except as otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the affirmative vote of the holders of a
majority of the total number of votes of the capital stock present in person
or represented by proxy and entitled to vote on such question, voting as a
single class. The Board of Directors, in its discretion, or the officer of
the Corporation presiding at a meeting of stockholders, in his or her
discretion, may require that any votes cast at such meeting shall be cast
by written ballot.
Section 9. Nature of Business at Annual Meetings of Stockholders. No business
may be transacted at an annual meeting of stockholders, other than business
that is either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise properly brought before the
annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the Company (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 9
and on the record date for the determination of stockholders entitled to vote
at such annual meeting and (ii) who complies with the notice procedures set
forth in this Section 9.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary
of the Company.
To be timely, a stockholder's notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the Company not less
than sixty (60) days nor more than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that
is not within thirty (30) days before or after such anniversary date, notice
by the stockholder in order to be timely must be so received not later than
the close of business on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
of the date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock of the Company
which are owned beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between such stockholder
and any other person or persons (including their names) in connection with
the proposal of such business by such stockholder and any material interest
of such stockholder in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting
to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures
set forth in this Section 9, provided, however, that, once business has been
properly brought before the annual meeting in accordance with such procedures,
nothing in this Section 9 shall be deemed to preclude discussion by any
stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting
in accordance with the foregoing procedures, the Chairman shall declare to
the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
Section 10. List of Stockholders Entitled to Vote. The officer of the
Corporation 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, 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 of the
Corporation who is present.
Section 11. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 8 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 12. Inspectors of Election. In advance of any meeting of stockholders,
the Board by resolution or the Chairman or the Chief Executive Officer shall
appoint one or more inspectors of election to act at the meeting and make a
written report thereof. One or more other persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is present, ready and willing to act at a meeting of
stockholders, the Chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Unless otherwise required by law, inspectors
may be officers, employees or agents of the Corporation. Each inspector,
before entering upon the discharge of 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 inspector
shall have the duties prescribed by law and shall take charge of the polls
and, when the vote is completed, shall make a certificate of the result of
the vote taken and of such other facts as may be required by law.
Section 13. Conduct of Meetings. The Board of Directors of the Corporation
may adopt by resolution such rules and regulations for the conduct of the
meeting of the stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and
to do all such acts as, in the judgment of such chairman, are appropriate
for the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) the determination of
when the polls shall open and close for any given matter to be voted on at the
meeting; (iii) rules and procedures for maintaining order at the meeting and
the safety of those present; (iv) limitations on attendance at or
participation in the meeting to stockholders of record of the corporation,
their duly authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (v) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (vi)
limitations on the time allotted to questions or comments by participants.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of Directors shall
consist of not less than three nor more than thirteen members, the exact
number of which shall be determined from time to time by resolution adopted
by the Board of Directors. Except as provided in Section 3 of this Article
III, directors shall be elected by the stockholders at the annual meetings
of stockholders, and each director so elected shall hold office until such
director's successor is duly elected and qualified, or until such director's
death, or until such director's earlier resignation or removal. Directors
need not be stockholders.
Section 2. Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the Company, except as may be otherwise provided in the
Certificate of Incorporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number
of directors in certain circumstances. Nominations of persons for election
to the Board of Directors may be made at any annual meeting of stockholders,
or at any special meeting of stockholders called for the purpose of electing
directors, (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the Company (i)
who is a stockholder of record on the date of the giving of the notice
provided for in this Section 2 and on the record date for the determination
of stockholders entitled to vote at such meeting and (ii) who complies with
the notice procedures set forth in this Section 2.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Company.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Company (a)
in the case of an annual meeting, not less than sixty (60) days nor more than
ninety (90) days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order to
be timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs; and (b) in the case of a special
meeting of stockholders called for the purpose of electing directors, not
later than the close of business on the tenth (10th) day following the day
on which notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made, whichever first
occurs.
To be in proper written form, a stockholder's notice to the Secretary must set
forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of
the Company which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant
to Section 14 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated thereunder;
and (b) as to the stockholder giving the notice (i) the name and record
address of such stockholder, (ii) the class or series and number of shares of
capital stock of the Company which are owned beneficially or of record by
such stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to
be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the
persons named in its notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the Exchange Act
and the rules and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the Company unless
nominated in accordance with the procedures set forth in this Section 2. If
the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall
be disregarded.
Section 3. Vacancies. Subject to the terms of any one or more classes or
series of preferred stock, any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a majority of
the directors then in office, provided that a quorum is present, and any other
vacancy occurring on the Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a sole
remaining director. Notwithstanding the foregoing, whenever the holders of
any one or more class or classes or series of preferred stock of the
Corporation shall have the right, voting separately as a class, to elect
directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the Certificate of Incorporation.
Section 4. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which 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 required to be exercised or done by the stockholders.
Section 5. Organization. At each meeting of the Board of Directors, the
Chairman of the Board of Directors, or, in his or her absence, a director
chosen by a majority of the directors present, shall act as Chairman. The S
ecretary of the Corporation shall act as Secretary at each meeting of the
Board of Directors. In case the Secretary shall be absent from any meeting
of the Board of Directors, an Assistant Secretary shall perform the duties
of Secretary at such meeting; and in the absence from any such meeting of
the Secretary and all the Assistant Secretaries, the Chairman of the meeting
may appoint any person to act as Secretary of the meeting.
Section 6. Resignations and Removals of Directors. Any director of the
Corporation may resign at any time, by giving written notice to the Chairman
of the Board of Directors, the Chief Executive Officer or the Secretary of
the Corporation. Such resignation shall take effect at the time therein
specified or, if no time is specified, immediately; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective. Except as otherwise required by law and
subject to the rights, if any, of the holders of shares of preferred stock
then outstanding, any director or the entire Board of Directors may be
removed from office at any time, but only for cause, and only by the
affirmative vote of the holders of at least a majority in voting power of
the issued and outstanding capital stock of the Corporation entitled to
vote in the election of directors.
Section 7. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held at such
time and at such place as may from time to time be determined by the Board
of Directors and, unless required by resolution of the Board of Directors,
without notice. Special meetings of the Board of Directors may be called by
the Chairman of the Board of Directors, the Vice Chairman, if there be one,
or a majority of the directors then in office. Notice thereof stating the
place, date and hour of the meeting shall be given to each director either
by mail not less than forty-eight (48) hours before the date of the meeting,
by telephone, facsimile, telegram or electronic transmission on twenty-four
(24) hours' notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the circumstances.
Section 8. Quorum. Except as may be otherwise required by law, the
Certificate of Incorporation or these By-Laws, at all meetings of the Board
of a majority of the entire Board of Directors shall 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. 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 of
the time and place of the adjourned meeting, until a quorum shall be present.
Section 9. Actions of Board by Written Consent. Unless otherwise provided 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 all the members of the
Board of Directors 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 of Directors or committee.
Section 10. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, members of
the Board of Directors of the Corporation, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a 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 10 shall constitute presence in person at such meeting.
Section 11. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he, she or
they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, 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. Each committee
shall keep regular minutes and report to the Board of Directors when required.
Section 12. Compensation. 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, or such other emoluments as the Board of Directors shall from
time to time determine. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 13. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because such person's
or their votes are counted for such purpose if (i) the material facts as to
such person's or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than
a quorum; or (ii) the material facts as to such person's or their
relationship or interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum
at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
Section 14. Ex Officio Members of the Board of Directors. The Board of
Directors, in its discretion, may appoint one or more persons as ex officio
members of the Board of Directors, who shall serve at the pleasure of the
Board of Directors. Ex officio members of the Board of Directors shall be
permitted to attend meetings of the Board of Directors but shall not be
entitled to vote on any matter before the Board of Directors and shall not
be considered to be directors of the Corporation for any other purpose,
including without limitation, for establishing a quorum, acting by written
consent or providing notice of meetings. Notwithstanding the foregoing, the
Board of Directors may hold meetings that do not include ex officio members
of the Board of Directors.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall be, a Chief Executive Officer, a Secretary and
a Treasurer. The Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a director of the Company),
a Vice Chairman of the Board of Directors (who must be a director of the
Company), a President, one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held
by the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman and
the Vice Chairman of the Board of Directors, need such officers be directors
of the Corporation.
Section 2. Election. The Board of Directors at its first meeting held after
each Annual Meeting of Stockholders shall elect the officers of the
Corporation 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; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any officer elected by the Board of Directors
may be removed at any time by the affirmative vote of a majority of the Board
of Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name
of and on behalf of the Corporation by the Chief Executive Officer, the
President or any Vice President and any such officer may, in the name of and
on behalf of the Corporation, take all such action as any such officer may
deem advisable to vote in person or by proxy at any meeting of security
holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof,
the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders
and of the Board of Directors. Except where by law the signature of the Chief
Executive Officer is required, the Chairman of the Board of Directors shall
possess the same power as the Chief Executive Officer to sign all contracts,
certificates and other instruments of the Corporation which may be authorized
by the Board of Directors. During the absence or disability of the Chief
Executive Officer, the Chairman of the Board of Directors shall exercise all
the powers and discharge all the duties of the Chief Executive Officer.
The Chairman of the Board of Directors shall also perform such other duties
and may exercise such other powers as from time to time may be assigned to
him or her by these By-Laws or by the Board of Directors.
Section 5. Vice Chairman. In the absence of the Chairman, the Vice Chairman,
if there be one, shall preside at all meetings of the stockholders and of the
Board of Directors. Except where by law the signature of the Chief Executive
Officer is required, the Vice Chairman shall possess the same power as the
Chief Executive Officer to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the Chairman, the Vice
Chairman shall exercise all powers and discharge all the duties of the
Chairman. The Vice Chairman shall also perform such other duties and may
exercise such other powers as may from time to time be assigned by these
By-Laws or by the Board of Directors.
Section 6. Chief Executive Officer. The Chief Executive Officer shall,
subject to the control of the Board of Directors and, if there be one,
the Chairman of the Board of Directors, have general supervision of the
business of the Corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. The Chief Executive Officer
shall execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and execute
documents when so authorized by these By-Laws, the Board of Directors or
the Chief Executive Officer. In the absence or disability of the Chairman
of the Board of Directors, or if there be none, the Chief Executive Officer
shall preside at all meetings of the stockholders and the Board of Directors.
The Chief Executive Officer shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him or
her by these By-Laws or by the Board of Directors.
Section 7. President. At the request of the Chief Executive Officer or in
the Chief Executive Officer's absence or in the event of the Chief Executive
Officer's inability or refusal to act (and if there be no Chairman or Vice
Chairman), the President shall perform the duties of the Chief Executive
Officer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Chief Executive Officer. The President shall
perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe.
Section 8. Vice Presidents. At the request of the Chief Executive Officer or
in his or her absence or in the event of his or her inability or refusal to
act (and if there be no Chairman, Vice Chairman or President), the Vice
President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the Chief
Executive Officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. Each Vice
President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Chairman,
Vice Chairman, President and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the Chief
Executive Officer or in the event of the inability or refusal of the Chief
Executive Officer to act, shall perform the duties of the Chief Executive
Officer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Chief Executive Officer.
Section 9. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall
also perform like duties for the standing committees when required. The
Secretary 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,
Chairman, Vice Chairman or Chief Executive Officer, under whose supervision
the Secretary shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary,
then either the Board of Directors or the Chief Executive Officer may choose
another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by
his or her signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to
be kept or filed are properly kept or filed, as the case may be.
Section 10. Treasurer. 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. The Treasurer 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 Chief Executive Officer and the Board
of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and of the financial
condition of the Corporation.
Section 11. Assistant Secretaries. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the Chief Executive Officer, the President, if there
be one, any Vice President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of his or her disability or refusal
to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 12. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, the
President, if there be one, any Vice President, if there be one, or the
Treasurer, and in the absence of the Treasurer or in the event of the
Treasurer's disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Treasurer.
Section 13. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the
Corporation, (i) by the Chairman or Vice Chairman of the Board of Directors,
the Chief Executive Officer, the President or a Vice President and (ii) by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by such
holder of stock in the Corporation.
Section 2. Signatures. Any or all of the signatures on a certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at
the date of issue.
Section 3. Lost, Destroyed, Stolen or Mutilated Certificates. The Board of
Directors may direct a new certificate to be issued in place of any
certificate 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, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate, or such
person's legal representative, to advertise the same in such manner as the
Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the
certificate or by such person's attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly endorsed for
transfer and payment of all necessary transfer taxes; provided, however, that
such surrender and endorsement or payment of taxes shall not be required in
any case in which the officers of the Corporation shall determine to waive
such requirement. Every certificate exchanged, returned or surrendered to
the Corporation shall be marked "Cancelled," with the date of cancellation,
by the Secretary or Assistant Secretary of the Corporation or the transfer
agent thereof. No transfer of stock shall be valid as against the Corporation
for any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
Section 5. Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agencies and registry offices
or agencies at such place or places as may be determined from time to time
by the Board of Directors.
Section 6. Beneficial Owners. 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 law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person's 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. Written
notice may also be given personally or by telegram, facsimile, telex or cable.
Section 2. Waivers of Notice.
(a) Whenever any notice is required by law, the Certificate of
Incorporation or these By-Laws, to be given to any director, member of a
committee or stockholder, 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 to notice. Attendance of a person at a
meeting, present by person or represented by proxy, shall constitute a waiver
of notice of such meeting, except where the person attends the 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.
(b) Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice
unless so required by law, the Certificate of Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the requirements of the GCL and the
provisions of the Certificate of Incorporation, dividends upon the capital
stock of the Corporation may be declared by the Board of Directors at any
regular or special meeting of the Board of Directors, and may be paid in cash,
in property, or in shares of the Corporation's capital stock. 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 Board of Directors from time
to time, in its absolute discretion, deems proper as a reserve or reserves to
meet contingencies, or for purchasing any of the shares of capital stock,
warrants, rights, options, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation,
or for any other proper purpose, and the Board of Directors may modify or
abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes 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.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 5. Record Date
(a) 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, 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 record date shall not be
more than sixty nor less than ten days before the date of such meeting. If
no 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. 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;
providing, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record 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. If no record date has been fixed by the Board of Directors, 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 law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in this
State, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a corporation's registered
office 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 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 day on
which the Board of Directors adopts the resolutions taking such prior action.
(c) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders 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 a record date, which record
date shall not precede the date upon which the resolution fixing the record
date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than
Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that such person is or was a director
or officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director or
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his or her conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that such person did
not act in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less than a
quorum, or (ii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe
his or her conduct was unlawful, if such person's action is based on the
records or books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or
records given or reports made to the Corporation or another enterprise by
an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was
serving at the request of the Corporation as a director, officer, employee
or agent. The provisions of this Section 4 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in Section
1 or 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII,
and notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery of the State of
Delaware or any other court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification
by a court shall be a determination by such court that indemnification of
the director or officer is proper in the circumstances because such person
has met the applicable standards of conduct set forth in Section 1 or 2 of
this Article VIII, as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII nor the absence of
any determination thereunder shall be a defense to such application or create
a presumption that the director or officer seeking indemnification has not
met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in
part, the director or officer seeking indemnification shall also be entitled
to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified
by the Corporation as authorized in this Article VIII.
Section 7. Non-exclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under the Certificate of Incorporation or any By-Law, agreement,
contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office, it being the policy
of the Corporation that indemnification of the persons specified in Sections
1 and 2 of this Article VIII shall be made to the fullest extent permitted by
law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or 2 of this
Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the GCL, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power or the
obligation to indemnify such person against such liability under the
provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII, references
to "the Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such
constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Article VIII
with respect to the resulting or surviving corporation as such person would
have with respect to such constituent corporation if its separate existence
had continued. For purposes of this Article VIII, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director
or officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the Corporation" as referred
to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 5
hereof), the Corporation shall not be obligated to indemnify any director
or officer (or his or her heirs, executors or personal or legal
representatives) or advance expenses in connection with a proceeding (or
part thereof) initiated by such person unless such proceeding (or part
thereof) was authorized or consented to by the Board of Directors of the
Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation may,
to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be altered, amended or repealed, in
whole or in part, or new By-Laws may be adopted by the Board of Directors or
by the stockholders as provided in the Certificate of Incorporation.
Section 2. Entire Board of Directors. As used in this Article IX and in these
By-Laws generally, the term "entire Board of Directors" means the total
number of directors which the Corporation would have if there were no
vacancies.
NOVACON CORPORATION
BALLOT
ANNUAL MEETING OF STOCKHOLDERS
WEDNESDAY, 4:00 PM, February 14, 2001
THIS BALLOT IS FOR USE AT THE ANNUAL MEETING ON FEBRUARY 14, 2001.
By signing the Ballot, you revoke all prior ballots and proxies and vote your
shares on the matters shown on the reverse side at the Annual Meeting and all
adjournments.
PROPOSAL NO. 1:
Approve and adopt an amended and restated certificate of incorporation to
(a) decrease the number of our authorized shares of Common Stock, $0.01 par
value, from 15,000,000 to 1,250,000 shares of Common Stock, $0.001 par value,
to reflect our inactive business status, (b) increase the authorized shares
of Common Stock, $0.001 par value, to 50,000,000 shares, and (c) change the
name of the corporation to NVCN Corporation.
[ ] Yes [ ] No
PROPOSAL NO. 2:
Approve and adopt amended bylaws.
[ ] Yes [ ] No
(CONTINUE ON OTHER SIDE)
PROPOSAL NO. 3: NOMINATED DIRECTORS
(1) Elect David P. Lang as a Director to serve until the 2001 Annual
Meeting or until is his successor is duly elected and qualified.
[ ] Yes [ ] No
(2) Elect Paul D. Rieff as a Director to serve until the 2001 Annual
Meeting or until is his successor is duly elected and qualified.
[ ] Yes [ ] No
(3) Elect Walter Zohmann as a Director to serve until the 2001 Annual
Meeting or until is his successor is duly elected and qualified.
[ ] Yes [ ] No
THIS BALLOT WHEN PROPERLY EXECUTED WILL BE VOTED AS DIRECTED OR, IF NO
DIRECTION IS GIVEN, IT WILL NOT BE VOTED.
Address Change? Mark Box [ ]
Indicate changes below: Dated: _______________, 2001
Signature(s)
______________________
______________________
Please sign exactly as your name(s) appear on the Ballot Card. Trustees,
administrators, etc., should include title and authority. Corporations
should provide full name or corporation and title of authorized officer
signing the Ballot Card.
