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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 21, 1998
Novell, Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-13351 87-0393339
(State or other (Commission File (IRS Employer
jurisdiction Number) Identification
of incorporation) Number)
122 East 1700 South
Provo, Utah 84606
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code) (801) 429-7000
Not Applicable
(Former name or former address, if changed since last report)
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Item 5. Other Events.
On September 21, 1998, the Board of Directors of the Registrant approved an
amendment to the by-laws establishing an advance notice provision with respect
to stockholder proposals and nominations. Section 2.11 of the by-laws now
provides that notice must be given by any stockholder who intends to nominate
a candidate for director at, or to bring business before, a stockholders'
meeting. To be timely, such stockholder s notice must be given to the
Secretary of the Corporation either by personal delivery or by United States
mail, postage prepaid, in either case received by the Secretary not later than
sixty (60) days prior to the first anniversary of the date on which notice of
the prior year's annual meeting was first mailed to stockholders. For the
1999 Annual Meeting, any such shareholder's notice must be received on or
before December 25, 1998. The notice must also contain the information set
forth in Section 2.11 of the by-laws, which are attached as an exhibit to this
Current Report on Form 8-K.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
---------
3.1 Novell, Inc. By-laws, as amended September 21, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NOVELL, INC.
(Registrant)
Date: November 20, 1998 By: /S/ Betty DePaola
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Assistant Corporate Secretary
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INDEX TO EXHIBITS
Exhibit No. Description
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3.1 Novell, Inc. By-laws, as amended September 21, 1998.
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EXHIBIT 3.1 Adopted September 21, 1998
Adopted May 27, 1998
Adopted Feb. 16, 1995
BY-LAWS
OF
NOVELL, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES AND FISCAL YEAR
SECTION 1.01. Registered Office.
The registered office of the corporation shall be in the City of Wilmington,
County of New Castle, State of Delaware until otherwise established by a vote
of a majority of the board of directors in office, and a statement of such
change is filed in the manner provided by statute.
SECTION 1.02. Other Offices.
The corporation may also have offices at such other places within or without
the State of Delaware as the board of directors may from time to time
determine or the business of the corporation requires.
SECTION 1.03. Fiscal Year.
The fiscal year of the corporation shall end on the last Saturday of October
in each year.
ARTICLE II
Meetings of Stockholders
SECTION 2.01. Place of Meeting.
All meetings of the stockholders of the corporation shall be held at the
registered office of the corporation, or at such other place within or without
the State of Delaware as shall be designated by the board of directors in the
notice of such meeting.
SECTION 2.02. Annual Meeting.
The board of directors may fix the date and time of the annual meeting of the
stockholders, but if no such date and time is fixed by the board, the meeting
for any calendar year shall be held on the Second Tuesday of March in such
year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day at 10:00 o'clock A.M., and at said meeting the
stockholders then entitled to vote shall elect directors and shall transact
such other business as may properly be brought before the meeting.
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SECTION 2.03. Special Meetings.
Special meetings of the stockholders of the corporation for any purpose or
purposes for which meetings may lawfully be called, may be called at any time
by the chairman of the board, a majority of the board of directors, the
president, or at the request, in writing, of stockholders owning a majority of
the amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. At any time, upon written request of any
person or persons who have duly called a special meeting, which written
request shall state the purpose or purposes of the meeting, it shall be the
duty of the secretary to fix the date of the meeting to be held at such date
and time as the secretary may fix, not less than ten nor more than sixty days
after the receipt of the request, and to give due notice thereof. If the
secretary shall neglect or refuse to fix the time and date of such meeting and
give notice thereof, the person or persons calling the meeting may do so.
SECTION 2.04. Notice of Meetings.
Written notice of the place, date and hour of every meeting of the
stockholders, whether annual or special, 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. Every notice of a special meeting shall
state the purpose or purposes thereof.
SECTION 2.05. Quorum, Manner of Acting and Adjournment.
The holders of a majority of the stock issued and outstanding (not including
treasury stock) and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for
the transaction of business except as otherwise provided by statute, by the
certificate of incorporation or by these by-laws. 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, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At any such adjourned meeting, at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. When a quorum is
present at any meeting, the vote of the holders of the majority of the stock
having voting power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which,
by express provision of the applicable statute or these by-laws, a different
vote is required in which case such express provision shall govern and control
the decision of such question. Except upon those questions governed by the
aforesaid express provisions, the stockholders present in person or by proxy
at a duly organized meeting can continue to do business until adjournment,
notwithstanding withdrawal of enough stockholders to leave less than a quorum.
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SECTION 2.06. Organization of Annual Stockholder's Meeting.
The Chairman of the Board of Directors shall preside at each meeting of
shareholders. In the absence of the Chairman, the meeting shall be chaired by
an officer of the corporation in accordance with the following order:
Vice-Chairman, President, Executive Vice President, Senior Vice President and
Vice President. The Secretary or in his or her absence an Assistant
Secretary or in the absence of the Secretary and all Assistant Secretaries a
person whom the Chairman of the meeting shall appoint shall act as Secretary
of the meeting and keep a record of the proceeding thereof.
The Board of Directors of the Company shall be entitled to make such rules or
regulations for the conduct of meetings of shareholders as it shall deem
necessary, appropriate or convenient. Subject to the rules and regulations of
the Board of Directors, if any, the Chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the Judgement of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the
meeting, rules and procedures for maintaining order at the meeting and the
safety of those present, limitations on participation in such meeting to
shareholders of record of the Company and their duly authorized and
constituted proxies, and such other persons as the Chairman shall permit,
restrictions on entry to the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comment by
participants and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot, unless, and to the
extent, determined by the Board of Directors or the chairman of the meeting,
meetings of shareholders shall not be required to be held in accordance with
rules of parliamentary procedure.
SECTION 2.07. Voting.
Each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of capital stock having voting power
held by such stockholder. No proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period. Every proxy shall be
executed in writing by the stockholder or by his duly authorized
attorney-in-fact and filed with the secretary of the corporation. A proxy,
unless coupled with an interest, shall be revocable at will, notwithstanding
any other agreement or any provision in the proxy to the contrary, but the
revocation of a proxy shall not be effective until notice thereof has been
given to the secretary of the corporation. A duly executive proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an interest in
the corporation generally. A proxy shall not be revoked by the death or
incapacity of the maker unless, before the vote is counted or the authority is
exercised, written notice such death or incapacity is given to the secretary
of the corporation.
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SECTION 2.08. Consent of Stockholders in Lieu of Meeting.
Any action required to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
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 date shall not be more than ten (10) days after the
date upon which the resolution fixing the record date as adopted by the board
of directors. Any stockholder of record or other person or entity seeking to
have the stockholders authorize or take corporate action by written consent
shall, by written notice to the secretary, request the board of directors to
fix a record date. The board of directors shall promptly, but in all events
within ten (10) days after the date on which such a request is received, adopt
a resolution fixing the record date (unless a record date has previously been
fixed by the board of directors pursuant to the first sentence of this
paragraph). If no record date has been fixed by the board of directors
pursuant to the first sentence of this paragraph or otherwise within ten (10)
days of the date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the board of directors is required
by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or to any officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the board of
directors and prior action by the board of directors is required by applicable
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be the date on which the
board of directors adopts the resolution taking such prior action.
In the event of the delivery, in the manner provided by the second paragraph
of this Section 2.08 to the corporation of the requisite written consent or
consents to take corporate action and/or any related revocation or reocations,
the corporation shall appoint inspectors of elections for the purpose of
promptly performing a ministerial review of the validity of the consents
and/or revocations. For the purpose of permitting the inspectors to perform
such review, no action by written consent without a meeting shall be effective
until such date as the inspectors certify to the corporation that the consents
delivered to the corporation in accordance with the second paragraph of this
Section 2.08 represent at least the minimum number of votes that would be
necessary to take the corporate action. Nothing contained in this Section
shall in any way be construed to suggest or imply that the board of directors
or any stockholder shall not be entitled to contest the validity of any
consent or revocation thereof, whether before or after such certification by
the inspectors, or to take any other action (including, without limitation,
the commencement, prosecution or defense of any litigation with respect
thereto, and the seeking of injunctive relief in such litigation).
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Every written consent shall bear the date of signature of each stockholder who
signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days of
the earliest dated written consent received in accordance with the second
paragraph of this Section 2.08, a written consent or consents signed by
a sufficient number of holders to take such action are delivered to the
corporation in the manner prescribed in this Section 2.08.
SECTION 2.09. Voting Lists.
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting. The list
shall be arranged in alphabetical order 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 or at least ten days prior to the meeting either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 2.10. Judges of Election.
All elections of directors shall be by written ballot, unless otherwise
provided in the certificate of incorporation; the vote upon any other matter
need not be by ballot. In advance of any meeting of stockholders the board of
directors may appoint judges of election, who need not be stockholders, to act
at such meeting or any adjournment thereof. If judges of election are not so
appointed, the chairman of any such meeting may, and upon the demand of any
stockholder or his proxy at the meeting and before voting begins shall,
appoint judges of election. The number of judges shall be either one or
three, as determined, in the case of judges appointed upon demand of a
stockholder, by stockholders present entitled to cast a majority or the votes
which all stockholders present are entitled to cast thereon. No person who is
a candidate for office shall act as a judge. In case any person appointed as
judge fails to appear or fails or refuses to act, the vacancy may be filled by
appointment made by the board of directors in advance of the convening of the
meeting, or at the meeting by the chairman of the meeting.
Ifjudges of election are appointed as aforesaid, they shall determine the
number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the
authenticity, validity and effect of proxies, receive votes or ballots, hear
and determine all challenges and questions in any way arising in connection
with the right to vote, count and tabulate all votes, determine the result,
and do such acts as may be proper to conduct the election or vote with
fairness to all stockholders. If there be three judges of election, the
decision, act or certificate of a majority shall be effective in all respects
as the decision, act or certificate of all.
On request of the chairman of the meeting or of any stockholder or his proxy,
the judges shall make a report in writing of any challenge or question or
matter determined by them, and execute a certificate of any fact found by
them.
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SECTION 2.11. Nominations and Proposals.
Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at any meeting of stockholders only (a) pursuant to the
Corporation's notice of meeting; (b) by or at the direction of the Board of
Directors; or (c) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in these by-laws, who
is entitled to vote at the meeting and who complies with the notice procedures
set forth in this Section 2.11.
In addition to any other applicable legal or regulatory requirements, for
nominations or other business to be properly brought before a stockholders
meeting by a stockholder pursuant to clause (c) of the preceding sentence, the
stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation, and such other business must otherwise be a proper matter
for stockholder action. To be timely, a stockholder's notice must be given
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation and received by the Secretary not later than
sixty (60) days prior to the first anniversary of the date on which notice of
the prior year's annual meeting was first mailed to stockholders. In no event
shall the public announcement of an adjournment of a stockholders meeting
commence a new time period for the giving of a stockholder's notice as
described above. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as
a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (or any successor
thereto) and Rule 14a-11 thereunder (or any successor thereto) (including such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (b) as to any other business that
the stockholder proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting, and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, and (ii) the class and
number of shares of the Corporation which are owned beneficially and of record
by such stockholder and such beneficial owner. Notwithstanding any provision
herein to the contrary, no business shall be conducted at a stockholders
meeting except in accordance with the procedures set forth in this Section
2.11.
The person presiding over the stockholders meeting shall, if the facts
warrant, determine and declare at the meeting that the nomination was not
properly made or that the business was not properly brought before the
meeting, as the case may be, in accordance with the provisions of this Section
2.11, and, if he or she should so determine, he or she shall so declare at the
meeting that any such person not properly nominated shall not be eligible to
receive votes in the election of directors at the meeting or that any such
business not properly brought before the meeting shall not be transacted, as
the case may be.
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ARTICLE III
Board of Directors
SECTION 3.01. Powers.
The board of directors shall have full power to manage the business and
affairs of the corporation; and all powers of the corporation, except those
specifically reserved or granted to the stockholders by statute, the
certificate of incorporation or these by-laws, are hereby granted to and
vested in the board of directors.
SECTION 3.02. Number and Term of Office.
The board of directors shall consist of such number of directors, not less
than three nor more than nine, as may be determined from time to time by
resolution of the board of directors. Each director shall serve until the
next annual meeting of the stockholders and until his successor shall have
been elected and qualified, except in the event of his death, resignation or
removal. All directors of the corporation shall be natural persons, but need
not be residents of Delaware or stockholders of the corporation.
SECTION 3.03. Vacancies.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining director,
and the directors so chosen shall hold office until the next annual election
and until their successors are duly elected and shall qualify, unless sooner
displaced. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. Whenever the holders of any
class or classes of stock or series thereof are entitled to elect one or more
directors by the provisions of the certificate of incorporation, vacancies and
newly created directorships of such class or classes or series may be filled
by a majority of the directors elected by such class or classes or series
thereof then in office, or by a sole remaining director so elected. If, at the
time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of Chancery
may, upon application of any stockholder or stockholders holding at least ten
percent of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to
fill any such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office.
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SECTION 3.04. Resignations.
Any director of the corporation may resign at any time by giving written
notice to the president or the secretary of the corporation. Such resignation
shall take effect at the date of the receipt of such notice or at any later
time specified therein and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 3.05. Organization.
At every meeting of the board of directors, the chairman of the board, if
there be one, or, in the case of a vacancy in the office or absence of the
chairman of the board, one of the following officers present in the order
stated: the vice chairman of the board, if there be one, the president, the
vice presidents in their order of rank and seniority, or a chairman chosen by
a majority of the directors present, shall preside, and the secretary, or, in
his absence, an assistant secretary, or in absence of the secretary and the
assistant secretaries, any person appointed by the chairman of the meeting,
shall act as secretary.
SECTION 3.06. Place of Meeting.
The board of directors may hold its meetings, both regular and special, at
such place or places within or without the State of Delaware as the board of
directors may from time to time appoint, or as may be designated in the notice
calling the meeting.
SECTION 3.07. Organization Meeting.
The first meeting of each newly elected board of directors shall be held at
such time and place as shall be fixed by the vote of the stockholders at the
annual meeting and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event of the failure of the stockholders to
fix the time or place for such first meeting of the newly elected board of
directors, or in the event such meeting is not held at the time and place so
fixed by the stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written
waiver signed by all of the directors.
SECTION 3.08. Regular Meetings.
Regular meetings of the board of directors may be held without notice at such
time and place as shall be designated from time to time by resolution of the
board of directors. If the date fixed for any such regular meeting be a legal
holiday under the laws of the State where such meeting is to be held, then the
same shall be held on the next succeeding business day, not a Saturday, or at
such other time as may be determined by resolution of the board of directors.
At such meetings, the directors shall transact such business as may properly
be brought before the meeting.
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SECTION 3.09. Special Meeting.
Special meetings of the board of directors shall be held whenever called by
the president or by two or more of the directors. Notice of each such meeting
shall be given to each director by telephone or in writing at least 24 hours
(in the case of notice by telephone) or 48 hours (in the case of notice by
telegram) or five days (in the case of notice by mail) before the time at
which the meeting is to be held. Each such notice shall state the time and
place of the meeting to be so held.
SECTION 3.10. Quorum, Manner of Acting and Adjournment.
At all meetings for the board a majority of the 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, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, any action required or permitted to be taken at any meeting of the
board of directors or of any committee thereof may be taken without a meeting,
if all members of the board consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board.
SECTION 3.11. Executive and Other Committees.
The board of directors may, by resolution adopted by a majority of the whole
board, designate an executive committee and one or more other committees, each
committee to consist of two or more directors. The board may designate one or
more directors as alternative members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence
or disqualification of a member, and the alternate or alternates, if any,
designated for such member, of any committee the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another director to act at
the meeting in the place of any such absent or disqualified member.
Any such committee to the extent provided in the resolution establishing such
committee shall have and may exercise all the power and authority of the board
of directors in the management of the business and affairs of the corporation,
including the power or authority to declare a dividend or to authorize the
issuance of stock, and may authorize the seal of the corporation to be affixed
to all papers which may require it; but no such committee shall have the power
or authority in reference to amending the certificate of incorporation (except
that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the board
of directors as provided in Section 151(a) of the Delaware General Corporation
Law ( DGCL ), fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other
class or classes of stock of the corporation), adopting an agreement of merger
or consolidation under Section 251 or 252 or the DGCL, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the by-laws of the corporation; and, unless the resolution expressly so
provides, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock or to adopt a certificate of
ownership and merger pursuant to Section 253 of the DGCL. Such committee or
committees shall have such name or names as may be determined from time to
time by resolution adopted by the board of directors. Each committee so
formed shall keep regular minutes of its meetings and report the same to the
board of directors when required.
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SECTION 3.12. Compensation of Directors.
Unless otherwise restricted by the certificate of incorporation, the board of
directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
SECTION 3.13. Notification of Director Nominations.
Nominations for the election of Directors may be made by the Board of
Directors or by any shareholder entitled to vote for the election of
Directors. Any shareholder entitled to vote for the election of Directors at
a meeting may nominate persons for election as Directors only if written
notice of such shareholder's intent to make such nomination is given, either
by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Company not later that (i) with respect to an election to be
held at an annual meeting of shareholders, 90 days in advance of such meeting,
and (ii) with respect to an election to be held at a special meeting of
shareholders for the election of Directors, the close of business on the
seventh day following the date on which notice of such meeting is first given
to shareholders.
Each such notice shall set forth: (a) the name and address of the shareholder
who intends to make the nomination and of the person or persons to be
nominated, (b) a representation that such shareholder is a holder of record of
stock of the Company, the number of shares currently held by such shareholder,
whether or not such shareholder is entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person
or persons specified in the notice, (c) a description of all arrangements or
understandings between such shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such shareholder, (d) such other information
regarding each nominee proposed by such shareholder as would have been
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had each nominee been nominated, or
intended to be nominated by the Board of Directors, and (e) the consent of
each nominee to serve as a Director of the Company if elected. The Chairman
of a shareholder meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
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ARTICLE IV
Notice - Waivers - Meetings
SECTION 4.01. Notice, What Constitutes.
Whenever, under the provision of the statutes of Delaware or the certificate
of incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director
or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given in accordance with Section 3.09
of Article III hereof.
SECTION 4.02 Waivers of Notice.
Whenever any written notice is required to be given under the provisions of
the certificate of incorporation, these by-laws, or by statute, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Except in the case of a special meeting of
stockholders, 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 of
such meeting.
Attendance of a person, either in person or by proxy, at any meeting, shall
constitute a waiver of notice of such meeting, except where a person attends a
meeting for the express purpose of objecting to the transaction of any
business because the meeting was not lawfully called or convened.
SECTION 4.03. Conference Telephone Meetings.
One or more directors may participate in a meeting of the board, or of a
committee of the board, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
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<PAGE> ARTICLE V
Officers
SECTION 5.01. Number, Qualifications and Designation.
The officers of the corporation shall be chosen by the board of directors and
shall be a president, one or more vice presidents, a secretary, a treasurer,
and such other officers as may be elected in accordance with the provisions of
Section 5.03 of this Article. One person may hold more than one office.
Officers may be, but need not be, directors or stockholders of the
corporation. The board of directors may elect from among the members of the
board a chairman of the board and a vice chairman of the board who shall be
officers of the corporation.
SECTION 5.02. Election and Term of Office.
The officers of the corporation, except those elected by delegated authority
pursuant to Section 5.03 of this Article, shall be elected annually by the
board of directors, and each such officer shall hold his office until his
successor shall have been elected and qualified, or until his earlier
resignation or removal. Any officer may resign at any time upon written
notice to the corporation.
SECTION 5.03. Subordinate Officers, Committees and Agents.
The board of directors may from time to time elect such other officers and
appoint such committees, employees or other agents as it deems necessary,
who shall hold their offices for such terms and shall exercise such powers
and perform such duties as are provided in these by-laws, or as the board of
directors may from time to time determine. The board of directors may
delegate to any officer or committee the power to elect subordinate officers
and to retain or appoint employees or other agents, or committees thereof,
and to prescribe the authority and duties of such subordinate officers,
committees, employees or other agents.
SECTION 5.04. The Chairman and Vice Chairman of the Board.
The chairman of the board or in his absence, the vice chairman of the board,
shall preside at all meetings of the stockholders and of the board of
directors, and shall perform such other duties as may from time to time be
assigned to them by the board of directors.
SECTION 5.05. The President.
The president shall be the chief executive officer of the corporation and
shall have general supervision over the business and operations of the
corporation, subject, however, to the control of the board of directors.
He shall sign, execute, and acknowledge, in the name of the corporation,
deeds, mortgages, bonds, contracts or other instruments, authorized by the
board of directors, except in cases where the signing and execution thereof
shall be expressly delegated by the board of directors, or by these by-laws,
to some other officer or agent of the corporation; and, in general, shall
perform all duties incident to the office of the president, and such other
duties as from time to time may be assigned to him by the board of directors.
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SECTION 5.06. The Vice Presidents.
The vice presidents shall perform the duties of the president in his absence
and such other duties as may from time to time be assigned to them by the
board of directors or by the president.
SECTION 5.07. The Secretary.
The secretary, or an assistant secretary, shall attend all meetings of the
stockholders and of the board of directors and shall record the proceedings of
the stockholders and of the directors and of committees of the board in a book
or books to be kept for that purpose; see that notices are given and records
and reports properly kept and filed by the corporation as required by law; be
the custodian of the seal of the corporation and see that it is affixed to all
documents to be executed on behalf of the corporation under its seal; and, in
general, perform all duties incident to the office of secretary, and such
other duties as may from time to time be assigned to him by the board of
directors or the president.
SECTION 5.08. The Treasurer.
The treasurer or an assistant treasurer shall have or provide for the custody
of the funds or other property of the corporation and shall keep a separate
book account of the same to his credit as treasurer; collect and receive or
provide for the collection and receipt of moneys earned by or in any manner
due to or received by the corporation; deposit all funds in his custody as
treasurer in such banks or other places of deposit as the board of directors
may from time to time designate; whenever so required by the board of
directors, render an account showing his transactions as treasurer and the
financial condition of the corporation; and, in general, discharge such other
duties as may from time to time be assigned to him by the board of directors
or the president.
SECTION 5.09. Officers Bonds.
No officer of the corporation need provide a bond to guarantee the faithful
discharge of his duties unless the board of directors shall by resolution so
require a bond in which event such officer shall give the corporation a bond
(which shall be renewed if and as required) in such sum and with such surety
or sureties as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office.
SECTION 5.10. Salaries.
The salaries of the officers and agents of the corporation elected by the
board of directors shall be fixed from time to time by the board of directors.
ARTICLE VI
Certificates of Stock, Transfer, Etc.
SECTION 6.01. Issuance.
Each stockholder shall be entitled to a certificate or certificates for shares
of stock of the corporation owned by him upon his request therefor. The stock
certificates of the corporation shall be numbered and registered in the stock
ledger and transfer books of the corporation as they are issued. They shall
be signed by the president or a vice president and by the secretary or an
assistant secretary or the treasurer or an assistant treasurer, and shall bear
the corporate seal, which may be a facsimile, engraved or printed. Any of or
all the signatures upon such certificate may be a facsimiles, engraved or
printed. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon, any share certificate shall
have ceased to be such officer, transfer agent or registrar, before the
certificate is issued, it may be issued with the same effect as if he were
such officer, transfer agent or registrar at the date of its issue.
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<PAGE>
SECTION 6.02. Transfer.
Upon surrender to the corporation or the transfer agent of the corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. No transfer
shall be made which would be inconsistent with the provisions of Article 8,
Title 6 of the Delaware Uniform Commercial Code-investment Securities.
SECTION 6.03. Stock Certificates.
Stock certificates of the corporation shall be in such form as provided by
statute and approved by the board of directors. The stock record books and
the blank stock certificates books shall be kept by the secretary or by any
agency designated by the board of directors for that purpose.
SECTION 6.04. Lost, Stolen, Destroyed or Mutilated Certificates.
The board of directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it 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 6.05. Record Holder of Shares.
The corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to
vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
SECTION 6.06. Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty day prior to any other action.
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<PAGE>
If no record date is fixed:
(1) 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.
(2) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
(3) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for
the adjourned meeting.
ARTICLE VII
Indemnification of Directors, Officers and Other Authorized Representatives
SECTION 7.01. Indemnification of Authorized Representative in Third Party
Proceedings.
The corporation shall indemnify any person who was or is an authorized
representative of the corporation (which shall mean for purposes of this
Article a director or officer of the corporation, or a person serving at the
request of the corporation as a director, officer, or trustee, of another
corporation, partnership, joint venture, trust or other enterprise) and who
was or is a party (which shall include for purposes of this Article the giving
of testimony or similar involvement) or is threatened to be made a party to
any third party proceeding (which shall mean for purposes of this Article 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 was or is an
authorized representative of the corporation, against expenses (which shall
include for purposes of this Article attorneys fees), judgements, penalties,
fines and amounts paid in settlement actually and reasonable incurred by such
person in connection with such third party 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 third party proceeding (including any action or investigation which
could or does lead to a criminal third party proceeding) had no reasonable
cause to believe such conduct was unlawful. The termination of any third
party proceeding by judgment, order, settlement, indictment, conviction or
upon a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that the authorized representative did not act in good faith and
in a manner which such person reasonable believed to be in or not opposed to,
the best interests of the corporation, and, with respect to any criminal third
party proceeding, had reasonable cause to believe that such conduct was
unlawful.
</PAGE>
<PAGE>
SECTION 7.02. Indemnification of Authorized Representatives in Corporate
Proceedings.
The corporation shall indemnify any person who was or is an authorized
representative of the corporation and who was or is a party or is threatened
to be made a party to any corporate proceeding (which shall mean for the
purposes of this Article any threatened, pending or competed action or suit by
or in the right of the corporation to procure a judgment in its favor or
investigative proceeding by the corporation) by reason of the fact that such
person was or is an authorized representative of the corporation, against
expenses and reasonable incurred by such person in connection with the defense
or settlement of such corporate action if such person acted in good faith and
in a manner 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 for negligence or misconduct in the performance of such
person's duty to the corporation unless and only to the extent that the Court
of Chancery or the court in which such corporate proceeding was pending shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such authorized representative is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
SECTION 7.03. Mandatory Indemnification of Authorized Representatives.
To the extent that an authorized representative of the corporation has been
successful on the merits or otherwise in defense of any third party or
corporate proceeding or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses actually and reasonably incurred
by such person in connection therewith.
SECTION 7.04. Determination of Entitlement to Indemnification.
Any indemnification under Section 7.01, 7.02, or 7.03 of this Article (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 authorized
representative is proper in the circumstances because such person has either
met the applicable standard of conduct set forth in Section 7.01 or 7.02 or
had been successful on the merits or otherwise as set forth in Section 7.03
and that the amount requested has been actually and reasonably incurred. Such
determination shall be made:
(1) By the board of directors by a majority of a quorum consisting of
directors who were not parties to such third party or corporate proceeding, or
(2) If such a quorum is not obtainable, or, even if obtainable, a majority
vote of such a quorum so directs, by independent legal counsel in written
opinion, or
(3) By the stockholders.
</PAGE>
<PAGE>
SECTION 7.05. Advancing Expenses.
Expenses actually and reasonably incurred in defending a third party or
corporate proceeding shall be paid on behalf of an authorized representative
by the corporation in advance of the final disposition of such third party or
corporate proceeding as authorized in the manner provided in Section 7.04 of
this Article upon receipt of an undertaking by or on behalf of the authorized
representative to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation as
authorized in this Article. The financial ability of such authorized
representative to make such repayment shall not be a prerequisite to the
making of an advance.
SECTION 7.06. Employee Benefit Plans.
For purposes of this Article, references to other enterprises shall include
employee benefit plans; references to fines shall include and 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, officer, employee, or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he 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.
SECTION 7.07. Scope of Article.
The indemnification of authorized representatives, as authorized by this
Article, shall (1) not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any statute, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity, (2) continue as to a
person who has ceased to be an authorized representative and (3) inure to the
benefit of the heirs, executors and administrators of such a person.
SECTION 7.08. Reliance on Provisions. Each person who shall act as an
authorized representative of the corporation shall be deemed to be doing so in
reliance upon rights of indemnification provided by this Article.
</PAGE>
<PAGE>
ARTICLE VIII
General Provisions
SECTION 8.01. Dividends.
Dividends upon the capital stock of the corporation, subject to the provisions
of the certificate of incorporation, if any, may be declared by the board of
directors at any regular or special meeting, pursuant to law. Dividends may
be paid in cash, in property, or in shares or the capital stock of the
corporation, subject to the provisions of the certificate of incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the corporation, or for such other purpose as
the directors shall think conducive to the interest of the corporation, and
the directors may modify or abolish any such reserve in the manner in which it
was created.
SECTION 8.02. Annual Statements.
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
SECTION 8.03. Contracts.
Except as otherwise provided in these by-laws, the board of directors may
authorized any officer or officers including the chairman and vice chairman of
the board of directors, or any agent or agents, to enter into any contract or
to execute or deliver any instrument on behalf of the corporation and such
authority may be general or confined to specific instances.
SECTION 8.04. Checks.
All checks, notes, bills of exchange or other orders in writing shall be
signed by such person or persons as the board of directors may from time to
time designate.
SECTION 8.05. 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
in any other manner reproduced.
SECTION 8.06 Deposits.
All funds of the corporation shall be deposited from time to time to the
credit of the corporation in such banks, trust companies, or other
depositories as the board of directors may approve or designate, and all such
funds shall be withdrawn only upon checks signed by such one or more officers
or employees as the board of directors shall from time to time determine.
</PAGE>
<PAGE>
SECTION 8.07 Corporate Records.
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 and number of shares registered in the name of each
stockholder, shall be open to the examination of any stockholder, for any
purpose germane to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Every stockholder shall, upon written demand under oath stating the purpose
thereof, have a right to examine, in person or by agent or attorney, during
the usual hours for business, for any proper purpose, the stock ledger, books
or records of account, and records of the proceedings of the stockholders and
directors, and make copies or extracts therefrom. A proper purpose shall mean
a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be
directed to the corporation at its registered office in Delaware or at its
principal place of business. Where the stockholder seeks to inspect the books
and records of the corporation, other than its stock ledger or list of
stockholders, the stockholder shall first establish (1) compliance with the
provisions of this section respecting the form and manner of making demand for
inspection of such document; and (2) that the inspection sought is for a
proper purpose. Where the stockholder seeks to inspect the stock ledger or
list of stockholders of the corporation and has complied with the provisions
of this section respecting the form and manner of making demand for inspection
of such documents, the burden of proof shall be upon the corporation to
establish that the inspection sought is for an improper purpose.
Any director shall have the right to examine the corporation's stock ledger, a
list of its stockholders and its other books and records for a purpose
reasonable related to his position as a director. The Court of Chancery is
hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The court may summarily order the
corporation to permit the director to inspect any and all books and records,
the stock ledger and the stock list and to make copies or extracts therefrom.
The court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the
court may deem just and proper.
SECTION 8.10. Amendment of By-Laws.
These by-laws may be altered, amended or repealed or new by-laws may be
adopted by the stockholders or by the board of directors, when such power is
conferred upon the board of directors by the certificate of incorporation, at
any regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting.
</PAGE>
