<PAGE>1
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) December 2, 1997
PAYLESS CASHWAYS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-4437 42-0945849
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
Two Pershing Square, 2300 Main Street,
P.O. Box 419466, Kansas City, Missouri 64141-0466
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (816) 234-6000
N/A
(Former name or former address, if changed since last report.)
<PAGE>2
ITEM 5: Other Events.
Reincorporation in the State of Delaware
Pursuant to the Payless Cashways, Inc. (the "Company") First Amended
Plan of Reorganization, as modified on October 9, 1997, and confirmed by the
Bankruptcy Court for the Western District of Missouri on November 19, 1997 (the
"Plan"), the Company has changed its state of incorporation from Iowa to
Delaware (the "Reincorporation"). In this discussion, the term "Iowa Company"
refers to the former Iowa corporation, the term "Delaware Company" refers to the
new Delaware corporation, which is the successor to the Iowa company, and the
term the "Company" includes either or both, without regard to the state of
incorporation.
The Reincorporation was effected by merging the Iowa Company into the
Delaware Company, which was recently incorporated as a wholly-owned subsidiary
of the Iowa Company for purposes of the merger (the "Merger"). The Merger was
consummated on December 2, 1997. The Delaware Company continues as the surviving
corporation and has been named Payless Cashways, Inc. As a result of the
Reincorporation, stockholders of the Iowa Company, whose rights were previously
governed by Iowa law, have become stockholders of the Delaware Company, with
their rights now governed by Delaware law. In addition, certain allowed claims
and interests were automatically converted into the right to receive shares of
common stock of the Delaware Company as provided in the Plan.
Description of Capital Stock
The following statements are brief summaries of certain provisions of
the capital stock of the Company. Such summaries do not purport to be complete
and are subject to and are qualified in their entirety by reference to the
provisions of the Certificate of Incorporation (the "Certificate") and Bylaws,
which are attached hereto and incorporated herein by reference.
The total number of shares of all classes of stock which the Company
has the authority to issue pursuant to the Certificate is 50,000,000 shares of
common stock, par value $.01 per share (the "Common Stock"). It is anticipated
that approximately 20,000,000 shares of Common Stock will be issued pursuant to
the Plan. The holders of shares of Common Stock are entitled to share ratably in
such dividends as may be declared by the Board of Directors and paid by the
Company out of funds legally available therefor. The declaration and payment of
dividends on the Common Stock are restricted by the terms of the Company's
outstanding indebtedness. Holders of Common Stock have no conversion rights,
participate ratably in any distribution of assets to stockholders in liquidation
and have no redemption, preemptive or other subscription rights. Each
outstanding share of Common Stock is entitled to one vote on each matter on
which the stockholders of the Company are entitled to vote. When issued, each
outstanding share of Common Stock will be fully paid and non-assessable.
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Anti-Takeover Provisions
The following statements are brief summaries of certain provisions of
the Certificate and Bylaws that could be considered anti-takeover provisions.
Such summaries do not purport to be complete and are subject to and are
qualified in their entirety by reference to the provisions of the Certificate
and Bylaws, which are attached hereto and incorporated herein by reference.
(i) Classified Board of Directors
The Certificate provides that the Company's Board of Directors is
divided into three classes as nearly equal in number as possible with directors
in each class serving succeeding three-year terms after the initial term. The
classification of the Board of Directors is intended to assure continuity and
stability in leadership and policy on the Board. Classification of the Board of
Directors may have the effect of making the removal of incumbent directors more
time-consuming and difficult, and, therefore, may have the effect of
discouraging an unsolicited takeover attempt or an attempt to gain control of
the Board through a proxy solicitation.
(ii) Removal of Directors
The Certificate provides that any director may be removed from office
for cause by a majority vote of the entire board of directors. The Certificate
also provides that any director, or the entire board of directors, may be
removed from office for cause by the affirmative vote of the holders of at least
a majority of the voting power of the shares entitled to vote in an election of
directors, voting as a single class.
(iii) Proposed Business for Annual Meetings
In order to be brought before an annual meeting, any business proposed
by a stockholder must be deemed to be properly brought before such meeting
pursuant to applicable state laws and the rules and regulations of the
Securities and Exchange Commission. In addition, except as may otherwise be
required by applicable law or regulation, the Certificate provides that a
stockholder may make a nomination or nominations for director of the Company at
an annual meeting of stockholders or may bring up any other matter for
consideration and action by the stockholders at an annual meeting of
stockholders, only if the stockholder complies with the requirements described
below. If such provisions shall not have been satisfied, any nomination sought
to be made or other business sought to be presented by a stockholder for
consideration and action by the stockholders at such a meeting shall be deemed
not properly brought before the meeting, shall be ruled by the chairman of the
meeting to be out of order, and shall not be presented or acted upon at the
meeting.
The stockholder proposing business or making a nomination must be a
stockholder of record on both the record date for such annual meeting and at the
time of such meeting, and must be entitled to vote thereat. In addition, the
stockholder must deliver written notice of the proposal
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or nomination to the secretary of the Company no less than sixty days prior to
the first anniversary of the previous year's annual meeting; provided, however,
that if the date of the annual meeting has been changed by more than thirty days
from the date of the previous year's annual meeting, such notice must be
received by the secretary not later than ten days following the date on which
public announcement of the date of such meeting is first made.
If the stockholder is proposing business other than a nomination for
director, then the notice must disclose, among other things, any material
interest of the stockholder in the proposed business as well as describing the
nature of the business, the reasons why the business is being raised and if and
how the business benefits the Company.
If the stockholder is making a nomination for director, then the notice
must specify the reasons for such nomination, a description of the
qualifications and business or professional experience of each proposed nominee
and a statement signed by each nominee indicating his or her willingness to
serve if elected, and must disclose the information about the nominee that would
be required by the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and the rules and regulations promulgated thereunder to be disclosed in the
proxy materials for the meeting involved if he or she were a nominee of the
Company. In addition, the Company may request the delivery of all other
information that would be required to be filed with the Securities and Exchange
Commission if, with respect to the business proposed to be brought before the
meeting, the person proposing such business was a participant in a solicitation
subject to Section 14 of the 1934 Act.
In the event the required notice is properly and timely given, such
business may be presented only by the stockholder who shall have given the
notice or a representative of such stockholder who is qualified under the law of
the State of Delaware to present the proposal on the stockholder's behalf at the
meeting.
This provision is intended to provide stockholders with the information
necessary to make an informed decision when voting for Company directors. It may
have the effect of delaying, deferring or preventing a change in control of the
Company because the burdens it imposes favor incumbent directors.
(iv) Special Meetings
Except as otherwise required by law, stockholders may call special
meetings of the stockholders only by submitting a written request for such a
meeting by holders of record representing at least 25% of the voting power of
all of the shares of the Company entitled to vote on the issue or issues to be
presented at such a meeting. This provision could have the effect of delaying,
deferring or preventing a change in control of the Company because the
difficulty in properly submitting such a request may have the effect of
discouraging an attempt to gain control of the board of directors through the
use of a special meeting.
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(v) Meetings by Stockholder Consent
No action may be taken by the stockholders other than action properly
taken at an annual or special meeting of stockholders of the Company. By
limiting the means of stockholder action, including action to remove incumbent
directors, this restriction may have the effect of delaying, deferring or
preventing a change in control of the Company.
The Delaware Business Combination Act
As a Delaware corporation, the Company is now governed by Delaware law.
Section 203 of the Delaware General Corporation Law (the "Delaware Business
Combination Act") imposes a significant restraint upon takeovers. The Delaware
Business Combination Act imposes a three-year moratorium on business
combinations (as defined in the Delaware Business Combination Act) between a
Delaware corporation and an "interested stockholder" (in general, a stockholder
owning 15% or more of a corporation's outstanding voting stock) or an affiliate
or associate thereof unless (a) prior to an interested stockholder becoming
such, the board of directors of the corporation approved the business
combination or the transaction resulting in the interested stockholder becoming
such; (b) upon consummation of the transaction resulting in an interested
stockholder becoming such, the interested stockholder owns 85% or more of the
voting stock outstanding at the time the transaction commenced (excluding, from
the calculation of outstanding shares, shares beneficially owned by management,
directors and certain employee stock plans); or (c) on or after an interested
stockholder becomes such, the business combination is approved by (i) the board
of directors and (ii) holders of at least 66 2/3% of the outstanding shares
(other than those shares beneficially owned by the interested stockholder) at a
meeting of stockholders.
The Delaware Business Combination Act provides that the term "business
combination" means (a) a merger or consolidation, (b) a sale, lease, exchange or
other transfer of 10% or more of the aggregate assets of the corporation, (c)
the issuance or transfer by the corporation of any stock of the corporation
which would have the effect of increasing the interested stockholder's
proportionate share of any class or series of stock of the corporation, (d) any
other transaction which has the effect of increasing the proportionate share of
any class or series of stock of the corporation which is owned by an interested
stockholder, and (e) the receipt by an interested stockholder of the benefit
(except proportionately as a stockholder) of loans, advances, guarantees,
pledges or other financial benefits provided by the corporation.
Since the Company has not "opted out" of the Delaware Business
Combination Act, its provisions apply to any business combinations between the
Company and any interested stockholders hereafter. The restrictions on business
combinations may have the effect of delaying, deferring, or preventing a change
in control of the Company by deterring potential takeover attempts.
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ITEM 7: Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
2.1 First Amended Plan of Reorganization, as
modified on October 9, 1997 (incorporated
herein by reference to Exhibit 2.1 filed as
part of the Company's Quarterly Report on
Form 10-Q for the quarter ended August 30,
1997).
2.2 Agreement and Plan of Merger in connection
with the Reincorporation from Iowa to
Delaware.
4.1 Certificate of Incorporation.
4.2 Bylaws.
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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 thereunto duly authorized.
PAYLESS CASHWAYS, INC.
Dated: December 2, 1997
By: /s/ Stephen A. Lightstone
----------------------------------------
Stephen A. Lighstone, Senior Vice President
Finance and Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
<PAGE>1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is made and
entered into pursuant to Delaware General Corporate Law ss.253 and Iowa Business
Corporate Act ss. 490.1107 as of the 26th day of November, 1997, by and between
PAYLESS CASHWAYS, INC., an Iowa corporation ("Payless Iowa"), and PAYLESS
CASHWAYS ACQUISITION, INC., a Delaware corporation ("Payless Delaware").
WHEREAS, Payless Iowa, on the date of this Merger Agreement, has
authority to issue 150,000,000 shares of voting common stock, par value $.01 per
share, 5,000,000 shares of non-voting Class A common stock, par value $.01 per
share, 5,000,000 shares of non-voting Class B common stock, par value $.01 per
share, and 25,000,000 shares of preferred stock, par value $1.00 per share;
WHEREAS, Payless Delaware, on the date of this Merger Agreement, has
authority to issue 50,000,000 shares of common stock, par value $.01 per share;
WHEREAS, the merger of Payless Iowa with and into Payless Delaware is
to be effectuated in accordance with that certain First Amended Plan of
Reorganization, dated September 5, 1997, as modified on October 9, 1997, and
filed in the matter captioned In re Payless Cashways, Inc., Case No. 97-50543-11
(as modified by the Order and at the November 19 hearing, the "Plan") and
confirmed by the United States Bankruptcy Court for the Western District of
Missouri on November 19, 1997 (the "Order").
NOW THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Payless Iowa and Payless Delaware hereby agree to merge as
follows:
1. Merger. Subject to the terms and conditions of this Merger
Agreement, Payless Iowa shall be merged with and into Payless Delaware, and
Payless Delaware shall survive the merger ("Merger"), effective at the Effective
Time, as hereinafter defined.
2. Effective Time. Subject to the provisions of this Merger Agreement,
a certificate of ownership and merger shall be duly executed and filed with the
Secretary of State of Delaware and articles of merger shall be duly executed and
filed with the Secretary of State of Iowa. The Merger shall become effective at
9:00 a.m. E.S.T. on the date specified in the filings to be made with the
secretaries of state of Delaware and Iowa. The date and time when the Merger
shall become effective is herein referred to as the "Effective Time."
3. Succession. At the Effective Time, the separate existence of Payless
Iowa shall cease, and Payless Delaware shall be the surviving corporation and
shall succeed to the rights, assets, liabilities and obligations of Payless Iowa
in the manner and to the extent more fully set
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forth in the Delaware General Corporation Law and the Plan, each as presently in
effect or as may hereafter be amended.
4. Directors and Officers and Governing Documents. The directors and
officers of Payless Delaware at the Effective Time shall be the directors and
officers of Payless Delaware as the surviving corporation from and after the
Effective Time until their death, resignation, disqualification or removal from
office, election and qualification of a successor or termination of employment.
The certificate of incorporation of Payless Delaware, as in effect at the
Effective Time, shall continue to be the certificate of incorporation of Payless
Delaware as the surviving corporation without change or amendment until further
amended in accordance with the provisions thereof and applicable law. The bylaws
of Payless Delaware, as in effect at the Effective Time, shall continue to be
the bylaws of Payless Delaware as the surviving corporation without change or
amendment until further amended in accordance with the provisions thereof, the
certificate of incorporation of Payless Delaware and applicable law.
5. Further Assurances. From time to time, as and when required by
Payless Delaware or by its successors and assigns, there shall be executed and
delivered on behalf of Payless Iowa such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action, as
shall be appropriate or necessary in order to vest, perfect or confirm, of
record or otherwise, in Payless Delaware the title to and possession of all
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Payless Iowa, and otherwise to carry out the purposes of this
Merger Agreement and the Plan, and the officers and directors of Payless
Delaware are fully authorized in the name and on behalf of Payless Iowa or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
6. Stock, Retirement and Conversion. At the Effective Time, the 100
shares of Payless Delaware common stock presently issued and outstanding in the
name of Payless Iowa shall be canceled and retired and resume the status of
authorized and unissued shares of Payless Delaware common stock, and no shares
of Payless Delaware common stock or other securities or property of Payless
Delaware shall be issued or delivered in respect thereof. At the Effective Time,
by virtue of the Merger and without any action on the part of any holder of
common or preferred stock of Payless Iowa, all such stock shall be converted
into shares of Payless Delaware common stock, as and to the extent set forth in
the Plan and no other shares of common stock or other securities or property of
Payless Delaware shall be issued or delivered in respect thereof.
7. Employee Benefit Plans. As of the Effective Time, and as set forth
in the Plan and the related First Amended Disclosure Statement, dated October 9,
1997, Payless Delaware hereby assumes all obligations of Payless Iowa under any
and all employee benefit plans in effect as of said date or with respect to
which employee rights or accrued benefits are outstanding as of said date.
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8. Book Entries. At the Effective Time, entries shall be made upon the
books of Payless Delaware to adjust the assets, liabilities and owner's equity
of the corporation pursuant to Statement of Position 90-7 of the American
Institute of Certified Public Accountants and in a manner consistent with the
Plan.
9. Abandonment. At any time before the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned by the board of
directors of either Payless Delaware or Payless Iowa.
10. Counterparts. In order to facilitate the filing and recording of
this Merger Agreement the same may be executed in any number of counterparts,
each of which shall be deemed to be an original.
11. Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Merger Agreement.
12. Governing Law. This Merger Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware as presently in
effect or as hereafter amended.
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf
of Payless Iowa and Payless Delaware by their respective duly authorized
officers.
PAYLESS CASHWAYS ACQUISITION, INC.,
Delaware corporation
ATTEST:
By: /s/ David Stanley
--------------------------------------
David Stanley, Chief Executive Officer
/s/ E. J. Holland, Jr.
- -----------------------------------
E.J. Holland, Jr., Secretary
PAYLESS CASHWAYS, INC.,
an Iowa corporation
ATTEST:
By: /s/ David Stanley
--------------------------------------
David Stanley, Chief Executive Officer
/s/ E. J. Holland, Jr.
- ----------------------------------
E. J. Holland, Jr., Secretary
<PAGE>4
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
I, Deborah S. Dahm, a Notary Public, do hereby certify that on this 26th
day of November, 1997, personally appeared before me David Stanley, who, being
by me first duly sworn declared that he is Chief Executive Officer of PAYLESS
CASHWAYS ACQUISITION, INC., a Delaware corporation, that he signed the foregoing
document as Chief Executive Officer of the corporation, and that the statements
therein contained are true.
/s/ Deborah S. Dahm
----------------------------
Notary Public
My Commission Expires:
2/2/2000
- ------------------------------
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
I, Deborah S. Dahm, a Notary Public, do hereby certify that on this 26th
day of November, 1997, personally appeared before me David Stanley, who, being
by me first duly sworn declared that he is Chief Executive Officer of PAYLESS
CASHWAYS, INC., an Iowa corporation, that he signed the foregoing document as
Chief Executive Officer of the corporation, and that the statements therein
contained are true.
/s/ Deborah S. Dahm
----------------------------
Notary Public
My Commission Expires:
2/2/2000
- ------------------------------
<PAGE>1
CERTIFICATE OF INCORPORATION
OF
PAYLESS CASHWAYS ACQUISITION, INC.
ARTICLE I
NAME OF CORPORATION
The name of the corporation is Payless Cashways Acquisition, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801, and the name of its registered agent at that
address is The Corporation Trust Company.
ARTICLE III
GENERAL NATURE OF BUSINESS
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation law as presently in effect or as it may hereafter be amended.
ARTICLE IV
CAPITAL STOCK
Section 4.1 Authorizations. The total number of shares of stock which
the corporation shall have the authority to issue is 50,000,000, all of which
shares shall have par value of $.01 per share and be designated "Common Stock".
The corporation shall reserve 20,000,000 shares of Common Stock to be available
for distribution pursuant to the First Amended Plan of Reorganization, as
modified (the "Plan"), of Payless Cashways, Inc., an Iowa Corporation and a
debtor and debtor-in-possession (the "Debtor") in a Chapter 11 proceeding
commenced in the United States Bankruptcy Court for the Western District of
Missouri (the "Bankruptcy Court"), and shall issue and deliver a sufficient
number of such shares to satisfy the Debtor's obligations under the Plan.
Section 4.2 Voting Rights of Shares. Notwithstanding anything to the
contrary contained in the Delaware General Corporation Law, the corporation
shall not, to the extent required by 11 U.S.C. ss. 1123(a)(6), issue any class
or series of capital stock without voting rights or with less than proportional
voting rights.
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ARTICLE V
ACTION BY STOCKHOLDERS; FIRST ANNUAL MEETING;
INSPECTION RIGHTS
Section 5.1 Action by Stockholders. 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 may not
be effected by any consent in writing by such stockholders. Meetings of
stockholders may be held within or without the State of Delaware, when and as
the bylaws (as amended from time to time) of the corporation may provide.
Election of directors need not be by written ballot unless the bylaws of the
corporation so provide.
Section 5.2 First Annual Meeting. The first Annual Meeting of the
stockholders of the corporation shall take place on a date designated by the
board of directors of the corporation which shall in no event be more than
twelve (12) months after the effective date of the merger of the Debtor with and
into the corporation.
Section 5.3 Inspection Rights. The books of the corporation may be kept
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 bylaws of the corporation.
Stockholders shall have the right to inspect the books and records of the
corporation to the extent and in the manner provided by Delaware law, subject to
reasonable restrictions as may be determined by the board of directors or the
officers of the corporation, from time to time or with respect to any request
for such inspection.
ARTICLE VI
DIRECTORS
Section 6.1 Number. The number of directors constituting the initial
board of directors shall be nine (9); provided, that until the entire initial
board of directors has been designated as described in Section 6.2, the initial
number of directors shall be two (2). Thereafter, the number of directors
constituting the entire board of directors shall be not less than seven (7) nor
more than fifteen (15), with the specific number of directors within such
minimum and maximum to be authorized from time to time by, and only by,
resolution duly adopted by the affirmative vote of a majority of the board of
directors.
Section 6.2 Designation; Classification. All of the initial directors
shall be designated and classified by those persons entitled to designate
directors pursuant to the Plan and such designations and classifications shall
be set forth in the Bankruptcy Court's order confirming the Plan. The board of
directors shall be divided into three (3) classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as possible, of one-third of
the total number of directors then constituting the entire board of directors.
According to the provisions of the Plan, the two initial directors to be
designated by the Debtor shall be as follows:
<PAGE>3
Susan M. Stanton
425 E. 73rd Terrace
Kansas City, MO 64131
David Stanley
2300 Main St.
P.O. Box 419466
Kansas City, MO 64141-0466
The term of the initial Class I directors shall expire at the annual
stockholders' meeting in 1998, the term of the initial Class II directors shall
expire at the annual stockholders' meeting in 1999, and the term of the initial
Class III directors shall expire at the annual stockholders' meeting in 2000. At
each annual stockholders' meeting beginning with the annual stockholders'
meeting in 1998, directors elected to succeed the directors whose terms expire
at such meeting shall be elected for a full three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain or attain (as nearly as possible), the equality of the
number of directors in each class. Whenever the number of directors is
increased, each newly created directorship shall be filled by the board of
directors acting by the affirmative vote of the majority of the directors then
in office. The term of each additional director shall expire upon the expiration
of the term of office of the class for which such director has been chosen. In
no case shall a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting for
the year in which such director's term expires and until a successor shall be
duly elected and qualified, or until such director's earlier death, resignation
or removal.
Any vacancies existing on the board of directors for any reason shall
be filled only by the board of directors, acting by the affirmative vote of a
majority of the directors then in office. The term of a director elected to fill
a vacancy shall expire upon the expiration of the term of office of the class in
which such vacancy occurred.
ARTICLE VII
REMOVAL OF DIRECTORS
As provided in Section 141 of the Delaware General Corporation Law, (i)
any director, or the entire board of directors, may be removed from office at
any time, but only for cause, by the affirmative vote of the holders of record
of outstanding shares representing at least a majority of the voting power of
all the shares of capital stock of the corporation then entitled to vote
generally in the election of directors, voting together as a single class, and
(ii) to the extent permitted by law, any director may be removed from office at
any time, but only for cause, by the affirmative vote of a majority of the
entire board of directors.
<PAGE>4
ARTICLE VIII
INDEMNIFICATION; INSURANCE
The directors and officers of the corporation shall be indemnified to
the maximum extent permitted by law. Without limiting the foregoing, each person
who was or is made a party or is threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation, or is or was serving, at the request of the corporation, as
a director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the corporation, to the fullest extent which it is empowered to
do so by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding, including attorneys' fees, and such indemnification shall inure
to the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in the bylaws of the corporation, the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the board of directors of the corporation. Expenses incurred
by a director or officer of the corporation in defending a civil or criminal
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 the director or officer to repay such amount if
it is ultimately determined that the director or officer is not entitled to be
indemnified by the corporation as authorized by the Delaware General Corporation
Law. The foregoing right of indemnification and advancement of expenses shall be
a contract right and shall in no way be exclusive of any other rights of
indemnification and advancement of expenses to which any such director or
officer may be entitled by law, agreement, vote of stockholders or of
disinterested directors or otherwise. All rights of indemnification and
advancement of expenses hereunder shall survive any repeal or modification of
this Article VIII as to any set of facts or proceeding then existing, shall
continue as to a person who has ceased to be an officer or director and shall
inure to the benefit of the heirs, executors and administrators of such a
director or officer. The procedures with respect to indemnification shall be set
forth in the bylaws of the corporation.
The corporation may maintain insurance, at its expense, to protect
itself and any person who is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not the corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
<PAGE>5
ARTICLE IX
LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
A director of the corporation shall not be personally liable to the
corporation or 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 Delaware General Corporation Law
as presently in effect or as the same may hereafter be amended.
ARTICLE X
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation expressly elects to be governed by Section 203 of the
Delaware General Corporation Law.
ARTICLE XI
AMENDMENT OF BYLAWS, ETC.
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the board of directors is hereby authorized to
make, amend, alter or repeal the bylaws of the corporation in any manner not
inconsistent with the laws of the State of Delaware, subject to the power of the
stockholders to make, amend, alter or repeal the bylaws of the corporation.
ARTICLE XII
AMENDMENT OF CERTIFICATE OF INCORPORATION
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 herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
ARTICLE XIII
INCORPORATOR
The name and mailing address of the incorporator is as follows:
Name of Incorporator Mailing Address
Gary D. Gilson c/o Blackwell Sanders Matheny
Weary & Lombardi LLP
2300 Main Street, Suite 1100
Kansas City, Missouri 64108
<PAGE>6
ARTICLE XIV
POWER OF INCORPORATOR
The power of the incorporator is to terminate upon the filing of this
Certificate of Incorporation.
IN TESTIMONY WHEREOF, the undersigned has hereunto subscribed his name
this 12th day of November, 1997.
/s/ Gary D. Gilson
------------------------------------------
Incorporator
<PAGE>1
BYLAWS
OF
PAYLESS CASHWAYS, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation
in the State of Delaware shall be located at The Corporation Trust Center, 1209
Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the
corporation's registered agent at such address shall be The Corporation Trust
Company. The registered office and/or registered agent of the corporation may be
changed from time to time by action of the board of directors.
Section 2. Other Offices. The corporation may have additional offices
at such other places, both within and without the State of Delaware, as the
board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings. Annual meetings of stockholders for the
election of directors, and for such other business as may be stated in the
notice of the meeting, shall be held at such place, either within or without the
State of Delaware, and at such time and date as the board of directors, by
resolution, shall determine and as set forth in the notice of the meeting. If
the board of directors fails so to determine the time, date and place of
meeting, the annual meeting of stockholders shall be held at the principal
executive office of the corporation on the first Tuesday in April. If the date
of the annual meeting shall fall upon a legal holiday, the meeting shall be held
on the next succeeding business day.
Section 2. Special Meetings. Except as otherwise required by law,
special meetings of the stockholders for any purpose or purposes may be called
by the Chairman or Chief Executive Officer, by resolution of the board of
directors adopted by the affirmative vote of a majority of the directors or by
the written request of the holders of record representing at least 25% of the
voting power of all of the shares of the corporation entitled to vote on the
issue or issues to be presented to the meeting.
Section 3. Place of Meetings. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting. The person or persons calling a special meeting may
designate any place, either within or without the State of Delaware, as the
place of meeting for such special meeting. If no designation is made,
<PAGE>2
the place of the annual or special meeting shall be in the State of the
corporation's principal executive offices.
Section 4. Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice stating the place, date and
time of such meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting. All such notices shall be delivered, either
personally or by mail, by or at the direction of the board of directors, the
chief executive officer or the secretary. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, postage prepaid,
addressed to the stockholder at his, her or its address as the same appears on
the records of the corporation. Attendance of a stockholder at a meeting shall
constitute a waiver of notice of such meeting, except when the stockholder
attends 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.
Section 5. Stockholders List. The officer having charge of the stock
ledger of the corporation shall make, at least ten days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
meeting 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 of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding shares
of capital stock of the corporation, present in person or represented by proxy
at a meeting of the stockholders and entitled to vote thereat, shall constitute
a quorum at such meeting, except as otherwise provided by statute or by the
certificate of incorporation. If a quorum is not present, the holders of a
majority of the shares present in person or represented by proxy at the meeting
and entitled to vote thereat may adjourn the meeting to another time and/or
place, without further notice to the stockholders other than an announcement at
such meeting until holders of the number of shares required to constitute a
quorum shall be present in person or by proxy. When a quorum is once present to
commence a meeting of stockholders, it is not broken by the subsequent
withdrawal of any stockholders or their proxies.
Section 7. Adjourned Meetings. When a meeting is adjourned to another
time and/or place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. The corporation may transact any business at the adjourned meeting 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
<PAGE>3
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative
vote of a majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless the question is one upon which, by express provisions of an
applicable law, the certificate of incorporation or these bylaws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question.
Section 9. Voting Rights. Except as otherwise provided by the Delaware
General Corporation Law or by the certificate of incorporation, and subject to
Section 3 of Article VI hereof, every 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. Whenever any
corporate action is to be taken by a vote of the stockholders, it shall, except
as otherwise required by law or the certificate of incorporation, be authorized
by a plurality of the votes cast at a meeting of stockholders by the holders of
shares entitled to vote thereon.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him or her by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A duly executed 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. Any proxy is suspended when the person executing the
proxy is present at a meeting of stockholders and elects to vote, except that
when such proxy is coupled with an interest and the fact of the interest appears
on the face of the proxy, the agent named in the proxy shall have all voting and
other rights referred to in the proxy, notwithstanding the presence of the
person executing the proxy. At each meeting of the stockholders, and before any
voting commences, all proxies filed at or before the meeting shall be submitted
to and examined by the secretary of the corporation or a person designated by
the secretary, and no shares may be represented or voted under a proxy that has
been found to be invalid or irregular.
Section 11. Proposed Business for Annual Meetings. Except as may
otherwise be required by applicable law or regulation or be expressly authorized
by the entire board of directors, a stockholder may make a nomination or
nominations for director of the corporation at an annual meeting of stockholders
or may bring up any other matter for consideration and action by the
stockholders at an annual meeting of stockholders, only if the provisions of
subsections A, B, C and D hereto shall have been satisfied. If such provisions
shall not have been satisfied, any nomination sought to be made or other
business sought to be presented by a stockholder for consideration and action by
the stockholders at such a meeting shall be deemed not properly brought before
the meeting, shall be ruled by the chairman of the meeting to be out of order,
and shall not be presented or acted upon at the meeting.
<PAGE>4
A. The stockholder must be a stockholder of record on the record
date for such annual meeting, must continue to be a
stockholder of record at the time of such meeting, and must be
entitled to vote thereat.
B. The stockholder must deliver or cause to be delivered a
written notice to the secretary of the corporation. Such
notice must be received by the secretary no less than sixty
days prior to the first anniversary of the previous year's
annual meeting; provided, however, that if the date of the
annual meeting has been changed by more than thirty days from
the date of the previous year's annual meeting, such notice
must be received by the secretary not later than ten days
following the date on which public announcement of the date of
such meeting is first made. The notice shall specify (a) the
name and address of the stockholder as they appear on the
books of the corporation, (b) the number of shares of the
corporation which are beneficially owned by the stockholder;
(c) any material interest of the stockholder in the proposed
business described in the notice; (d) if such business is a
nomination for director, each nomination sought to be made,
together with the reasons for each nomination, a description
of the qualifications and business or professional experience
of each proposed nominee and a statement signed by each
nominee indicating his or her willingness to serve if elected,
and disclosing the information about him or her that is
required by the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations promulgated
thereunder to be disclosed in the proxy materials for the
meeting involved if he or she were a nominee of the
corporation for election as one of its directors; (e) if such
business is other than a nomination for director, the nature
of the business, the reasons why it is sought to be raised and
submitted for a vote of the stockholders and if and why it is
deemed by the stockholder to be beneficial to the corporation,
and (f) if so requested by the corporation, all other
information that would be required to be filed with the
Securities and Exchange Commission if, with respect to the
business proposed to be brought before the meeting, the person
proposing such business was a participant in a solicitation
subject to Section 14 of the 1934 Act.
C. Notwithstanding satisfaction of the provisions of subsection A
and subsection B, the proposed business described in the
notice may be deemed not to be properly brought before the
meeting if, pursuant to state law or to any rule or regulation
of the Securities and Exchange Commission, it was offered as a
stockholder proposal and was omitted from the notice of, and
proxy material for, the meeting (or any supplement thereto)
authorized by the board of directors.
D. In the event such notice is timely given pursuant to
subsection B and the business described therein is not
disqualified pursuant to subsection C, such business may be
presented by, and only by, the stockholder who shall have
given the notice required by subsection B or a representative
of such stockholder who is qualified
<PAGE>5
under the law of the State of Delaware to present the proposal on the
stockholder's behalf at the meeting.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of Office. Upon the effective date
of these bylaws, the number of directors which shall constitute the board of
directors shall be nine. Thereafter, the number of directors which shall
constitute the board of directors shall be established from time to time by, and
only by, resolution duly adopted by a majority of the directors then
constituting the entire board of directors. Except as otherwise provided in the
certificate of incorporation or in Section 3 of this Article III, a director
shall be elected at an annual meeting of the stockholders by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote in the election of directors. A director's term of office shall
be as provided in the certificate of incorporation and, to the extent
applicable, the order of the United States Bankruptcy Court for the Western
District of Missouri confirming the First Amended Plan of Reorganization of
Payless Cashways, Inc., an Iowa corporation, as a debtor and a
debtor-in-possession in a Chapter 11 proceeding in such Court. A director shall
hold office until the annual meeting for the year in which such director's term
expires and until a successor shall be duly elected and qualified, or until such
director's earlier death, resignation, disqualification or removal as
hereinafter provided. Directors need not be stockholders of the corporation.
Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
only by the board of directors and in the manner provided in the certificate of
incorporation. The term of office of a director so chosen shall be as provided
in the certificate of incorporation. Each director so chosen shall hold office
until the annual meeting for the year in which such director's term expires and
until a successor shall be duly elected and qualified, or until such director's
earlier death, resignation, disqualification or removal as hereinafter provided.
Section 4. Removal and Resignation. Any director or the entire board of
directors may be removed at such time and in such manner as provided in the
certificate of incorporation. Any director who is also an officer of the
corporation who resigns his or her position as an officer of the corporation, or
is terminated, disqualified or removed as an officer of the corporation, or
otherwise ceases to serve in such capacity, shall also be deemed to have
resigned as a director of the corporation. Any director may resign at any time
upon written notice to the corporation.
Section 5. Regular Meetings. The annual meeting of each newly elected
board of directors shall be held without notice other than this bylaw
immediately after, and at the same place as, the annual meeting of stockholders.
Other regular meetings of the board of directors
<PAGE>6
may be held without notice at such time and at such place, either within or
without the State of Delaware, as shall from time to time be determined by
resolution of the board of directors.
Section 6. Special Meetings. Special meetings of the board of directors
may be called by or at the request of the Chairman, Chief Executive Officer,
President or a majority of the board of directors. The person or persons so
calling such special meeting shall designate the time and place for the holding
of such meeting. The place so designated may be any place in the United States,
either within or without the State of Delaware. Notice of any special meeting
shall be given at least two days prior to the date fixed for such meeting by
written notice delivered personally, by mail, or by a nationally recognized
overnight delivery service to each director at his business address, or by telex
or telecopy. If notice is given by mail, such notice shall be deemed to be
delivered three days after such notice is deposited with the United States mail
properly addressed, postage prepaid. If notice is given by overnight delivery
service, such notice shall be deemed delivered one day after such notice is
delivered during business hours to such overnight delivery service properly
addressed, postage prepaid. If notice is given personally or by telex or
telecopy, such notice shall be deemed to be delivered when received. Neither the
business to be transacted at nor the purpose of any special meeting of the board
of directors need be specified in the notice or waiver of notice of such
meeting. Any member of the board of directors or any committee thereof who is
present at a meeting shall be conclusively presumed to have waived notice of
such meeting except when such member attends 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.
Section 7. Quorum, Required Vote and Adjournment. A majority of the
total number of directors then in office shall constitute a quorum for the
transaction of business at any meeting of the board of directors. Except as
otherwise provided by the certificate of incorporation, the vote of a majority
of directors present at a meeting at which a quorum is present shall be the act
of the board of directors. A majority of the directors present, whether or not a
quorum is present, may adjourn any regular or special meeting of the board of
directors to another time and place. Notice need not be given of the adjourned
meeting if the time and place to which the meeting is adjourned are announced at
the meeting at which adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted at the original
meeting.
Section 8. Committees. The board of directors may, by resolution or
resolutions adopted by a majority of the whole board, designate an audit
committee, a compensation committee, and a corporate governance and nominating
committee, each such committee to consist of one or more directors of the
corporation. The audit committee shall monitor and review the adequacy of
financial, operating and system controls, financial reporting, compliance with
legal, ethical and regulatory requirements, and the performance of the external
and internal auditors, serving as the conduit for communication between the
board of directors and external and internal auditors. The audit committee shall
recommend to the board of directors the independent public accountants to
conduct the annual examination of financial statements and shall also review the
proposed scope and fees of the examination, as well as its results, and any
significant, non-audit services and fees. The compensation committee shall
review the compensation (wages, salaries, supplemental
<PAGE>7
compensation and benefits) of the executive officers of the corporation,
including approval of compensation and benefit policies, approval of direct and
indirect executive officer compensation, administration of stock programs, and
oversight of the corporation's executive development plan. The compensation
committee shall make recommendations to the board of directors regarding
compensation and benefits for directors. The corporate governance and nominating
committee shall review the size, composition and effectiveness of the board of
directors, including retention, tenure and retirement policies, criteria for
selection of nominees to the board of directors, qualifications of candidates,
membership and structure of board committees, and developments in corporate
governance.
In addition to the committees specifically provided for in these
bylaws, the board of directors of the corporation, by resolution or resolutions
adopted by a majority of the whole board of directors, may designate any other
committees, each such committee to consist of one or more of the directors of
the corporation. To the extent provided in such resolution or resolutions, each
such committee shall have and may exercise all of the authority of the board of
directors in the management of the corporation. Notwithstanding the foregoing,
no committee established hereunder shall have the power or authority to (a)
approve, adopt or recommend to the stockholders any action or matter expressly
required by the Delaware General Corporation Law to be submitted to the
stockholders for approval, (b) amend the certificate of incorporation or adopt,
amend or repeal any bylaw of the corporation, (c) authorize dividends or other
distributions, (d) fill vacancies on the board of directors, (e) adopt an
agreement of merger or consolidation under Section 251 or 252 of the Delaware
General Corporation Law or a certificate of ownership and merger pursuant to
Section 253 of the Delaware General Corporation Law; (f) recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets or recommend to the stockholders a dissolution
of the corporation or a revocation of a dissolution of the corporation, (g)
authorize or approve a reacquisition of shares, except according to a formula or
method prescribed by the board of directors, and (h) authorize or approve the
issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences, and limitations of a class or series of
shares, except that the board of directors may authorize a committee or a senior
executive officer of the corporation to do so within limits specifically
prescribed by the board of directors.
The designation of any such committee and the delegation thereto of
authority shall not operate to relieve the board of directors, or any member
thereof, of any responsibility imposed upon the board or any director by law.
The board of directors shall elect the members of any such committee,
which members shall serve at the pleasure of the board. 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 such committee.
Section 9. Committee Rules. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the board of
directors designating such committee. Unless
<PAGE>8
otherwise provided in such a resolution, a majority of the members of the
committee shall constitute a quorum. In the event that a member and that
member's alternate, if alternates are designated by the board of directors as
provided in Section 8 of this Article III, of such committee is or are absent or
disqualified, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in place of any such absent or disqualified member.
Each committee shall keep regular minutes of its proceedings, which
minutes shall be recorded in the minute book of the corporation. The secretary
or an assistant secretary of the corporation may act as secretary for any
committee if the committee so requests.
Section 10. Lead Director; Chairman. In an effort to enhance
efficiency, independence and informed decision-making, the board of directors
may designate a Lead Director when the Chairman of the Board and the Chief
Executive Officer are the same person, who shall perform a number of tasks,
including: acting as Chairman of the Board when the Chairman/CEO is unable or it
is inadvisable for the Chairman/CEO to chair the Board; acting as Chairman of
the Corporate Governance and Nominating Committee; convening meetings of the
independent directors'; coordinating and communicating CEO performance
evaluations; and representing independent directors in communications with
stockholders, as appropriate. When the Chief Executive Officer is not the
Chairman, the board of directors may select one of its number to serve as
Chairman. The Chairman of the Board shall preside at all meetings of
stockholders and of the board of directors and shall have and perform such other
duties as may be assigned by the board of directors
Section 11. Meetings of Independent Directors. The independent
directors of the corporation shall meet at least annually to discuss significant
corporate governance matters, executive review, management succession and other
items.
Section 12. Communications Equipment. Members of the board of directors
or any committee thereof may participate in and act at any meeting of such board
or committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
Section 13. Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to such action unless his or
her dissent shall be entered in the minutes of the meeting or unless such
director shall file his or her written dissent to such action with the person
acting as the secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered or certified mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
<PAGE>9
Section 14. Action by Written Consent. Unless otherwise restricted by
the certificate of incorporation, 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 or committee, as the case
may be, consent thereto in writing. Such written consents shall be filed with
the minutes of proceedings of the board or committee.
Section 15. Compensation. The board of directors shall 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. Any Lead Director and any director serving as the chairman
of a committee may receive additional compensation for serving as such.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be a Chief
Executive Officer, a President, one or more Vice Presidents, a Treasurer and a
Secretary, all of whom shall be elected by the board of directors and shall hold
office until their successors are elected and qualified. In addition, the board
of directors may elect such Assistant Secretaries and Assistant Treasurers as it
may deem proper. The board of directors may appoint such other officers and
agents as it may deem advisable, 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. Any number of offices may be held by the
same person except that neither the chairman of the board nor the chief
executive officer shall also hold the office of secretary. In its discretion,
the board of directors may choose not to fill any office for any period as it
may deem advisable, except that the offices of chief executive officer and
secretary shall be filled as expeditiously as possible.
Section 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the board of directors at its first meeting held
after each annual meeting of stockholders or as soon thereafter as may be
practicable. Vacancies may be filled or new offices created and filled at any
meeting of the board of directors. Each officer shall hold office until a
successor is duly elected and qualified or until such officer's earlier death,
resignation, disqualification or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby.
<PAGE>10
Section 4. Vacancies. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
board of directors for the unexpired portion of the term.
Section 5. Compensation. Compensation of all executive officers shall
be fixed by the board of directors, and no officer shall be prevented from
receiving such compensation by virtue of his or her also being a director of the
corporation.
Section 6. The Chief Executive Officer. The Chief Executive Officer
shall have general charge and management of the business , affairs,
administration and operations of the corporation, shall carry out such duties as
are delegated by the board of directors, shall see that all orders and
resolutions of the board of directors are carried out, shall have power to
execute all contracts and agreements authorized by the board of directors, shall
make reports to the board of directors and stockholders, and shall perform such
other duties as are incident to the office or are properly required by the board
of directors. The Chief Executive Officer shall be responsible for the direction
and supervision of all personnel within his or her appointive powers and shall
also have the power to discipline or discharge such personnel. The Chief
Executive Officer shall sit with the board of directors in deliberation upon all
matters pertaining to the general business and policies of the corporation.
Section 7. President. The President shall have such powers and shall
perform such duties as shall be assigned to him or her by the board of directors
or the Chairman as appropriate. Except as the board of directors shall authorize
execution thereof in some other manner, the President shall execute bonds,
mortgages and other contracts on behalf of the corporation.
Section 8. Vice Presidents. Each Vice President shall have such powers
and shall perform such duties as shall be assigned to him or her by the board of
directors or Chief Executive Officer, as appropriate.
Section 9. Treasurer. The Treasurer shall be the custodian of all the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation, shall deposit
all moneys and other valuables in the name and to the credit of the corporation
in such depositaries as may be designated by the board of directors, shall
disburse the funds of the corporation as may be ordered by the board of
directors, or the Chairman, Chief Executive Officer or President, taking proper
vouchers for such disbursement, and shall render to the board of directors at
the regular meetings of the board of directors, or whenever they may request it,
an account of all transactions as Treasurer and of the financial condition of
the corporation. The Treasurer shall at all reasonable times exhibit the
corporation's books and accounts to any director of the corporation upon
application at the principal office of the corporation during business hours.
The Treasurer shall have such other powers and shall perform such other duties
as may from time to time be assigned to him or by her by the Chief Executive
Officer or the board of directors, as appropriate. If required by the board of
directors, the Treasurer shall give the corporation a bond for the faithful
discharge of the Treasurer's duties in such amount and with such surety as the
board shall prescribe.
<PAGE>11
Section 10. Secretary. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors and all other notices
required by law or by these bylaws, and in case of the absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the Chairman, Chief Executive Officer, or President, or by the directors,
upon whose request the meeting is called as provided in these bylaws. The
Secretary shall be the custodian of, and shall make or cause to be made the
proper entries in, the minute book of the corporation and such other books and
records as the board of directors may direct. The Secretary shall be the
custodian of the corporate seal for the corporation and shall affix or cause to
be affixed such seal to such contracts and other instruments as the board of
directors may direct and shall perform such other duties as may from time to
time be assigned to him or her by the Chief Executive Officer or the board of
directors, as appropriate.
Section 11. Assistant Treasurers and Assistant Secretaries. Assistant
Treasurers and Assistant Secretaries, if any, shall be appointed by the Chief
Executive Officer and shall have such powers and shall perform such duties as
shall be assigned to them, respectively, by the Chief Executive Officer or the
board of directors, as appropriate.
Section 12. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these bylaws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the board of directors.
Section 13. Absence or Disability of Officers. In the case of the
absence or disability of any officer of the corporation and that of any person
hereby authorized to act in such officer's place during such officer's absence
or disability or for any other reason the board of directors may deem
sufficient, the board of directors may by resolution delegate the powers and
duties of such officer to any other officer, to any director, or to any other
person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the corporation or advance of
expenses under Article VIII of the certificate of incorporation shall be made
promptly, and in any event within thirty days, upon the written request of the
director or officer. If a determination by the corporation that the director or
officer is entitled to indemnification pursuant to this Article V is required,
and the corporation fails to respond within sixty days to a written request for
indemnity, the corporation shall be deemed to have approved the request. If the
corporation denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within thirty days, the right to indemnification or advances as granted
by this Article V shall be enforceable by the director or officer in any court
of competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also be indemnified by the
corporation. It shall be a defense to any such action (other than an action
<PAGE>12
brought to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any, has
been tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the corporation to indemnify the claimant for the amount claimed, but the burden
of such defense shall be on the corporation. Neither the failure of the
corporation (including its board of directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its board of directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 2. Article Not Exclusive. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision or the certificate of incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 3. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article V and who are or were employees or agents
of the corporation, or who are or were serving at the request of the corporation
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the board of directors. Expenses (including attorneys'
fees) incurred by employees and agents may be paid upon such terms and
conditions, if any, as the board of directors deems appropriate; provided, that
such expenses may only be paid by the corporation in advance of a proceeding's
final disposition upon receipt of an undertaking by or on behalf of such
employee or agent to repay such amount if it shall ultimately be determined that
he or she is not entitled to be indemnified by the corporation.
Section 4. Contract Rights. The provisions of this Article V shall be
deemed to be a contract right between the corporation and each director or
officer who serves in any such capacity at any time while this Article V and the
relevant provisions of the Delaware General Corporation Law or other applicable
law are in effect, and any repeal or modification of this Article V or any such
law shall not affect any rights or obligations then existing with respect to any
state of facts or proceeding then existing.
Section 5. Merger or Consolidation. For purposes of this Article V,
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, officers, and employees or agents, so that any person who is a
director, officer, employee or agent of such constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust
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or other enterprise, shall stand in the same position under this Article V with
respect to the resulting or surviving corporation as he or she would have with
respect to such constituent corporation if its separate existence had continued.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the corporation shall be
entitled to have a certificate signed by, or in the name of, the corporation by
the chief executive officer or a vice-president of the corporation and by the
secretary or an assistant secretary of the corporation, certifying the number of
shares of the corporation owned by such holder. The signature of any such chief
executive officer, vice-president, secretary or assistant secretary may be
facsimiles. In case any officer or officers who have signed, or whose facsimile
signature or signatures have been used on, any such certificate or certificates
shall cease to be such officer or officers of the corporation, whether because
of death, resignation or otherwise, before such certificate or certificates have
been delivered by the corporation, such certificate or certificates may
nevertheless be issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
corporation. All certificates for shares shall be consecutively numbered or
otherwise identified. The name of the person to whom the shares represented
thereby are issued, with the number of shares and date of issue, shall be
entered on the books of the corporation. Shares of stock of the corporation
shall be transferred on the books of the corporation only by the holder of
record thereof or by such holder's attorney duly authorized in writing, upon
surrender to the corporation of the certificate or certificates for such shares
endorsed by the appropriate person or persons, with such evidence of the
authenticity of such endorsement, transfer, authorization and other matters as
the corporation may reasonably require, and accompanied by all necessary stock
transfer stamps. In that event, it shall be the duty of the corporation to issue
a new certificate or certificates and record the transaction on its books. The
board of directors may appoint a bank or trust company organized under the laws
of the United States or any state thereof to act as its transfer agent or
registrar, or both, in connection with the transfer of any class or series of
securities of the corporation.
Section 2. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of the 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 or her legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against the corporation on account of the loss, theft or destruction of any such
certificate or the issuance of such new certificate.
<PAGE>14
Section 3. Fixing a Record Date for Stockholder Meetings. 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 the stockholders shall be the close of business on the
next day 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;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
Section 4. Fixing a Record Date for Other Purposes. In order that the
corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purposes 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.
Section 5. Registered Stockholders. Prior to the surrender to the
corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications and otherwise to exercise all the rights and
powers of an owner. The corporation 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.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation may be declared by the board of directors at any regular or special
meeting, subject to and in the manner provided by law and the applicable
provisions of the certificate of incorporation, if any. Dividends may be paid in
cash, in property, or in shares of the 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, think proper as a reserve or reserves to meet
contingencies, to equalize dividends, to repair or maintain any property of the
corporation, or to accomplish any other purpose, and the board of directors may
modify or abolish any such reserve in the manner in which it was created.
<PAGE>15
Section 2. Checks, Drafts or Orders. All checks, drafts or other orders
for the payment of money by or to the corporation and all notes and other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents of the corporation, and in such
manner, as shall from time to time be determined by resolution of the board of
directors or a duly authorized committee thereof. In the absence thereof, the
signature of the Chief Executive Officer shall suffice.
Section 3. Contracts. The board of directors may authorize any officer
or officers, or any agent or agents, of the corporation to enter into any
contract or to execute and deliver any instrument in the name of and on behalf
of the corporation, and such authority may be general or confined to specific
instances. In the absence thereof, the signature of the Chief Executive Officer
shall suffice.
Section 4. Fiscal Year. The fiscal year of the corporation shall be
determined by resolution of the board of directors. In the absence of a
resolution by the board of directors, the fiscal year of the corporation shall
end on the last Saturday in the month of November.
Section 5. Corporate Seal. The board of directors shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the corporation, the year of its incorporation and the words
"Corporate Seal, Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 6. Voting Securities Owned by Corporation. Voting securities in
any other corporation held by the corporation shall be voted by the chief
executive officer, unless the board of directors specifically confers authority
to vote with respect thereto, which authority may be general or confined to
specific instances, upon some other person or officer. Any person authorized to
vote securities shall have the power to appoint proxies, with general power of
substitution.
Section 7. Section Headings. Section headings in these bylaws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 8. Inconsistent Provisions. In the event that any provision of
these bylaws is or becomes inconsistent with any provision of the certificate of
incorporation, the Delaware General Corporation Law or any other applicable law,
the provision of these bylaws shall not be given any effect to the extent of
such inconsistency but shall otherwise be given full force and effect.
ARTICLE VIII
AMENDMENTS
These bylaws may be amended, altered, or repealed and new bylaws
adopted in the manner provided in the certificate of incorporation.
