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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 9, 1999
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Hauser, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-17174 84-0926801
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
5555 Airport Boulevard
Boulder, Colorado 80301
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 443-4662
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Item 5. Other Events
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At the Annual Meeting of Shareholders of Hauser, Inc. (the "Annual
Meeting"), a Colorado corporation (the "Company"), held on December 8, 1999, the
shareholders of the Company (the "Shareholders") and the sole shareholder of
Hauser, Inc., a Delaware corporation and a wholly-owned subsidiary of the
Company ("Merger Sub"), approved a proposal to reincorporate the Company under
the laws of Delaware through an Agreement and Plan of Merger (the
"Reincorporation Agreement") between the Company and Merger Sub (the
"Reincorporation"). The Reincorporation was effective as of December 9, 1999.
Approximately 80% of the holders of Common Stock of the Company entitled to
notice of and to vote at the Annual Meeting voted in favor of the
Reincorporation.
At the annual meeting, the Shareholders also elected nine nominees to the
Board of Directors of the Company to hold office until the 2000 Annual Meeting
of Shareholders and until their successors are duly elected and qualified, or
until their death, resignation or removal.
At the Annual Meeting, the shareholders of the Company approved the
Company's 1999 Employee Stock Purchase Plan under which 150,000 shares of Common
Stock were reserved for issuance. Approximately 73% of the holders of Common
Stock of the Company entitled to notice of and to vote at the Annual Meeting
voted in favor of the 1999 Employee Stock Purchase Plan.
Additionally, at the Annual Meeting, the shareholders of the Company
approved the 1999 Stock Incentive Plan under which 850,000 shares of Common
Stock were reserved for issuance pursuant to stock options granted to key
employees of the Company. The Compensation Committee and Board of Directors of
the Company granted options to key employees to purchase 813,213 shares of
Common Stock at a purchase price of $3.4535 per share.
The Board of Directors has determined that except as otherwise provided in
the 1999 Stock Incentive Plan such options will not vest and become exercisable
until the earlier of (i) December 7, 2004 or (ii) the date on which the closing
price of the Common Stock on Nasdaq or a similar national securities exchange
shall be $18.00 for twenty consecutive trading days. Approximately 77% of the
holders of Common Stock of the Company entitled to notice of and to vote at the
Annual Meeting voted in favor of the 1999 Stock Incentive Plan.
Item 7. Financial Statements and Exhibits
---------------------------------
(a) Financial Statements
None.
(b) Exhibits
2.1 Agreement and Plan of Merger dated as of December 8, 1999 between the
Company and Merger Sub.
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3.1 Certificate of Incorporation of the Company
3.2 By-laws of the Company
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Hauser, Inc.
Dated: December 14, 1999 By: /s/ Ralph Heimann
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Name: Ralph Heimann
Title: Secretary
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of this 8th day of December, 1999,
between Hauser, Inc., a Delaware corporation ("HAUSER-DEL"), and Hauser, Inc., a
Colorado corporation ("HAUSER-COL"). HAUSER-DEL and HAUSER-COL are sometimes
hereinafter referred to individually as a "Constituent Corporation" and
collectively as the "Constituent Corporations."
WHEREAS, the Board of Directors of each of the Constituent Corporations has
determined that it is advisable and in the best interests of each such
corporation to merge (the "Merger") HAUSER-COL with and into HAUSER-DEL upon the
terms and subject to the conditions herein provided; and
WHEREAS, the Board of Directors of each of the Constituent Corporations
has, by resolution duly adopted, approved this Agreement and Plan of Merger and
directed that it be executed by the undersigned officers and that it be
submitted to a vote of their respective stockholders.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
provisions set forth herein, each of the Constituent Corporations hereby agrees
as follows:
FIRST: (a) The name of each Constituent Corporation in the Merger is as
follows:
Hauser, Inc.
Hauser, Inc.
(b) HAUSER-DEL shall be the surviving corporation in the Merger (the
"Surviving Corporation"), and following the Merger its name shall continue to be
Hauser, Inc.
SECOND: As to HAUSER-COL and HAUSER-DEL, the designation and number of
outstanding shares of each class and series and the voting rights thereof are as
follows:
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Shares
entitled
to vote
Designation and number Class or Series as a
Name of shares in each class of Shares class or
Corporation or series outstanding entitled to Vote series
--------------------- ---------------- ------
HAUSER-COL Common Stock N/A N/A
5,183,175 Shares
HAUSER-DEL Common Stock N/A N/A
100,000 Shares
THIRD: The terms and conditions of the Merger, including the manner and
basis of converting the shares of HAUSER-COL into shares of HAUSER-DEL are as
follows:
(a) At 5:00 p.m. on the date on which the certificate of merger is filed
with the Secretary of State of the State of Delaware (the "Effective Time"), the
separate existence of HAUSER-COL shall cease and HAUSER-COL shall be merged with
and into HAUSER-DEL, and HAUSER-DEL shall be the Surviving Corporation.
(b) At the Effective Time, (i) each share of common stock, $0.001 par
value, of HAUSER-COL that is issued and outstanding immediately before the
Effective Time shall be canceled and extinguished and shall be converted into
one share in HAUSER-DEL; and (ii) each share of common stock, $0.001 par value,
of HAUSER-DEL that is issued and outstanding immediately before the Effective
Time shall be canceled and returned to the status of authorized but unissued
shares.
(c) At the Effective Time, if any options or rights granted to purchase
shares of Common Stock of HAUSER-COL remain
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outstanding, then the Surviving Corporation will assume outstanding and
unexercised portions of such options and such options shall be changed and
converted into options to purchase common stock of the Surviving Corporation,
such that an option to purchase one share of common Stock of HAUSER-COL shall be
converted into an option to purchase one share of common stock of HAUSER-DEL. No
other changes in the terms and conditions of such options will occur.
(d) At the Effective Time, (i) the Certificate of Incorporation of
HAUSER-DEL as in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation, (ii) the By-laws of
HAUSER-DEL as in effect immediately prior to the Effective Time shall be the
By-laws of the Surviving Corporation, (iii) the directors and officers of
HAUSER-COL holding such positions immediately prior to the Effective Time shall
be the directors and officers, respectively, of the Surviving Corporation; and
(iv) the name of the Surviving Corporation shall be Hauser, Inc.
FOURTH: No amendments or changes will be made to the Certificate of
Incorporation of the Surviving Corporation in the Merger.
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FIFTH: The foregoing Agreement and Plan of Merger was duly adopted by the
Board of Directors of each Constituent Corporation on the dates set forth below:
NAME OF CORPORATION DATE OF ADOPTION
- ------------------- ----------------
HAUSER-COL December 8, 1999
HAUSER-DEL December 8, 1999
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IN WITNESS WHEREOF, the Constituent Corporations have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
Hauser, Inc.
(a Colorado corporation)
By: /s/ Volker Wypyszyk
------------------------------
Name: Volker Wypyszyk
Title: Co-Chief Executive
Officer and President
Hauser, Inc.
(a Delaware corporation)
By: /s/ Volker Wypyszyk
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Name: Volker Wypyszyk
Title: President
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<PAGE>
CERTIFICATE OF INCORPORATION
OF
HAUSER, INC.
* * * * * * * *
ARTICLE I
The name of the corporation (the "Corporation") is:
Hauser, Inc.
ARTICLE II
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is 20,000,000 shares of Common Stock, each of which shall
have a par value of $0.001 per share.
ARTICLE V
The name and mailing address of the incorporator is as follows:
Mark A. Cognetti, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
ARTICLE VI
In furtherance and not in limitation of the powers conferred by statute,
the by-laws of the Corporation may be made, altered, amended or repealed by the
stockholders or by a majority of the entire board of directors of the
Corporation (the "Board").
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ARTICLE VII
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all stockholders or class of
stockholders of this corporation, as the case may be, and also on this
corporation.
ARTICLE VIII
Elections of directors need not be by written ballot.
ARTICLE IX
(a) The Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Delaware any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he 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, trustee, employee or agent of or in any
other capacity with another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
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(b) Expenses incurred in defending a civil or criminal action, suit or
proceeding shall (in the case of any action, suit or proceeding against a
director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or on
behalf of the indemnified person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article.
(c) The indemnification and other rights set forth in this Article IX shall
not be exclusive of any provisions with respect thereto in the by-laws of the
Corporation or any other contract or agreement between the Corporation and any
officer, director, employee or agent of the Corporation.
(d) Neither the amendment nor repeal of this Article IX, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with Article
IX, shall eliminate or reduce the effect of this Article IX in respect of any
matter occurring before such amendment, repeal or adoption of an inconsistent
provision or in respect of any cause of action, suit or claim relating to any
such matter which would have given rise to a right of indemnification or right
to receive expenses pursuant to this Article IX if such provision had not been
so amended or repealed or if a provision inconsistent therewith had not been so
adopted.
No director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director;
provided, however, that the foregoing shall not eliminate or limit the liability
of a director:
(i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders;
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(iii) under Section 174 of the General Corporation Law of the State of
Delaware; or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the General Corporation Law of the State of Delaware is amended after
November 5, 1999 to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
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the General Corporation Law of the State of Delaware, as so amended.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose
of forming a Corporation pursuant to the General Corporation Law of the State of
Delaware makes this Certificate, hereby declaring and certifying that this is
his act and deed and the facts herein stated are true and, accordingly, has
hereunto set his hand this 5th of November, 1999.
/s/ Mark A. Cognetti
------------------------------
Mark A. Cognetti
Sole Incorporator
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<PAGE>
BYLAWS
OF
HAUSER, INC.
Incorporated Under the Laws of the State of Delaware
ARTICLE I.
OFFICES
The registered office of the Corporation in Delaware shall be located in
New Castle County, 1209 Orange Street, Wilmington, Delaware 19801. The name of
its registered agent at such address is Corporation Service Company. The
Corporation may also have such other offices at such other places, within or
without the State of Delaware, as the Board of Directors may from time to time
designate or the business of the Corporation may require.
<PAGE>
ARTICLE II.
STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meeting of stockholders for the
election of directors and the transaction of any other business shall be held at
such date, time and place, either within or without the State of Delaware, as
may be designated by the Board of Directors, and set forth in the notice of such
meeting. At the annual meeting any business may be transacted and any corporate
action may be taken, whether stated in the notice of meeting or not, except as
otherwise expressly provided by statute or the Certificate of Incorporation.
Section 2.2. Special Meetings. Special meetings of the stockholders for any
purpose may be called at any time by the Board of Directors, or by the Chief
Executive Officer. Special meetings shall be held at such place or places within
or without the State of Delaware as shall from time to time be designated by the
Board of Directors and stated in the notice of such meeting. At a special
meeting no business shall be transacted and no corporate action shall be taken
other than that stated in the notice of the meeting.
Section 2.3. Notice of Meetings. Written notice of the time and place of
any stockholder's meeting, whether annual or special, shall be given to each
stockholder entitled to vote thereat, by personal delivery or by mailing the
same to him at his address as the same appears upon the records of the
Corporation at least ten (10) days but not more than sixty (60) days before the
day of the meeting. Notice of any adjourned meeting need not be given other than
by announcement at the meeting so adjourned, unless otherwise ordered in
connection with such adjournment. Such further notice, if any, shall be given as
may be required by law.
Section 2.4. Quorum. Any number of stockholders, together holding at least
a majority of the capital stock of the Corporation issued and outstanding and
entitled to vote, who shall be present in person or represented by proxy at any
meeting duly called, shall constitute a quorum for the transaction of all
business, except as otherwise provided by law, by the Certificate of
Incorporation or by these Bylaws.
Section 2.5. Adjournment of Meetings. If less than a quorum shall attend at
the time for which a meeting shall have been called, the meeting may adjourn
from time to time by a majority vote of the stockholders present or represented
by proxy and entitled to vote without notice other than by announcement at the
meeting until a quorum shall attend. Any meeting at which a quorum is present
may also be adjourned in like manner and for such time or upon such call as may
be determined by a majority vote of the stockholders present or represented by
proxy and entitled to vote. At any adjourned meeting at which a quorum
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shall be present, any business may be transacted and any corporate action may be
taken which might have been transacted at the meeting as originally called.
Section 2.6. Voting List. The Secretary shall prepare and make, at least
ten (10) days before every election of directors, a complete list of the
stockholders entitled to vote, arranged in alphabetical order and showing the
address of each stockholder and the number of shares of each stockholder. Such
list shall be open at the place where the election is to be held for said ten
(10) days, to the examination of any stockholder, and shall be produced and kept
at the time and place of election during the whole time thereof, and subject to
the inspection of any stockholder who may be present.
Section 2.7. Voting. Each stockholder entitled to vote at any meeting may
vote either in person or by proxy, but no proxy shall be voted on or after three
years from its date, unless said proxy provides for a longer period. Each
stockholder entitled to vote shall at every meeting of the stockholders be
entitled to one vote for each share of stock registered in his name on the
record of stockholders. At all meetings of stockholders all matters, except as
otherwise provided by statute, shall be determined by the affirmative vote of
the majority of shares present in person or by proxy and entitled to vote on the
subject matter. Voting at meetings of stockholders need not be by written
ballot.
Section 2.8. Record Date of Stockholders. The Board of Directors is
authorized to fix in advance a date not exceeding sixty (60) days nor less than
ten (10) days preceding the date of any meeting of stockholders, or the date for
the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining the consent of stockholders for
any purposes, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting, and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent, and, in such
case, such stockholders and only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting, and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation, after such record date fixed as
aforesaid.
Section 2.9. Action Without Meeting. Any action required or permitted to be
taken at any annual or special meeting of the stockholders may be taken without
a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the
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action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III.
DIRECTORS
Section 3.1. Number and Qualifications. The board of directors shall
consist initially of three directors, and thereafter shall consist of such
number as may be fixed from time to time by resolution of the Board. The
directors need not be stockholders.
Section 3.2. Election of Directors. The directors shall be elected by the
stockholders at the annual meeting of stockholders.
Section 3.3. Duration of Office. The directors chosen at any annual meeting
shall, except as hereinafter provided, hold office until the next annual
election and until their successors are elected and qualify.
Section 3.4. Removal and Resignation of Directors. Any director may be
removed from the Board of Directors, with or without cause, by the holders of a
majority of the shares of capital stock entitled to vote, either by written
consent or at any special meeting of the stockholders called for that purpose,
and the office of such director shall forthwith become vacant.
Any director may resign at any time. Such resignation shall take effect at
the time specified therein, and if no time be specified, at the time of its
receipt by the Chief Executive Officer or Secretary. The acceptance of a
resignation shall not be necessary to make it effective, unless so specified
therein.
Section 3.5. Filling of Vacancies. Any vacancy among the directors,
occurring from any cause whatsoever, may be filled by a majority of the
remaining directors, though less than a quorum, provided however, that the
stockholders removing any director may at the same meeting fill the vacancy
caused by such removal, and provided further, that if the directors fail to fill
any such vacancy, the stockholders may at any special meeting called for that
purpose fill such vacancy. In case of any increase in the number of directors,
the additional directors may be elected by the directors in office prior to such
increase.
Any person elected to fill a vacancy shall hold office, subject to the
right of removal as hereinbefore provided, until
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the next annual election and until his successor is elected and qualifies.
Section 3.6. Regular Meetings. The Board of Directors shall hold an annual
meeting for the purpose of organization and the transaction of any business
immediately after the annual meeting of the stockholders, provided a quorum is
present. Other regular meetings may be held at such times as may be determined
from time to time by resolution of the Board of Directors.
Section 3.7. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors or by the Chief
Executive Officer.
Section 3.8. Notice and Place of Meetings. Meetings of the Board of
Directors may be held at the principal office of the Corporation, or at such
place as shall be determined in the notice of such meeting. Notice of any
special meeting, and, except as the Board of Directors may otherwise determine
by resolution, notice of any regular meeting also, shall be mailed to each
director addressed to him at his residence or usual place of business at least
two days before the day on which the meeting is to be held, or if sent to him at
such place by telegraph or cable, or delivered personally or by telephone, not
later than the day before the day on which the meeting is to be held. No notice
of the annual meeting of the Board of Directors shall be required if it is held
immediately after the annual meeting of the stockholders and if a quorum is
present.
Section 3.9. Business Transacted at Meetings, etc. Any business may be
transacted and any corporate action may be taken at any regular or special
meeting of the Board of Directors at which a quorum shall be present, whether
such business or proposed action be stated in the notice of such meeting or not,
unless special notice of such business or proposed action shall be required by
statute.
Section 3.10. Quorum. A majority of the Board of Directors at any time in
office shall constitute a quorum. At any meeting at which a quorum is present,
the vote of a majority of the members present shall be the act of the Board of
Directors unless the act of a greater number is specifically required by law or
by the Certificate of Incorporation or these Bylaws.
Section 3.11. Compensation. The directors shall not receive any stated
salary for their services as directors, but by resolution of the Board of
Directors a fixed fee and expenses of attendance may be allowed for attendance
at each meeting. Nothing herein contained shall preclude any director from
serving the Corporation in any other capacity, as an officer, agent or
otherwise, and receiving compensation therefor.
Section 3.12. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the Board of
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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, and the writing or writings are filed with the minutes of the
proceedings of the Board or committee.
Section 3.13. Meetings Through Use of Communications Equipment. Members of
the Board of Directors, or any committee designated by the Board of Directors,
shall, except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, have the power to participate in a meeting of the Board of
Directors, or any committee, by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at the meeting.
ARTICLE IV.
COMMITTEES
Section 4.1. Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate two or more of their number
to constitute an Executive Committee to hold office at the pleasure of the
Board, which Committee shall, during the intervals between meetings of the Board
of Directors, have and exercise all of the powers of the Board of Directors in
the management of the business and affairs of the Corporation, subject only to
such restrictions or limitations as the Board of Directors may from time to time
specify, or as limited by the Delaware General Corporation Law, and shall have
power to authorize the seal of the Corporation to be affixed to all papers which
may require it.
Any member of the Executive Committee may be removed at any time, with or
without cause, by a resolution of a majority of the whole Board of Directors.
Any person ceasing to be a director shall ipso facto cease to be a member
of the Executive Committee.
Any vacancy in the Executive Committee occurring from any cause whatsoever
may be filled from among the directors by a resolution of a majority of the
whole Board of Directors.
Section 4.2. Other Committees. Other committees, whose members need
not be directors, may be appointed by the Board of Directors or the Executive
Committee, which committees shall hold office for such time and have such powers
and perform such duties as may from time to time be assigned to them by the
Board of Directors or the Executive Committee.
Any member of such a committee may be removed at any time, with or without
cause, by the Board of Directors or the Executive
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Committee. Any vacancy in a committee occurring from any cause whatsoever may be
filled by the Board of Directors or the Executive Committee.
Section 4.3. Resignation. Any member of a committee may resign at any time.
Such resignation shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt by
the Chief Executive Officer or Secretary. The acceptance of a resignation shall
not be necessary to make it effective unless so specified therein.
Section 4.4. Quorum. A majority of the members of a committee shall
constitute a quorum. The act of a majority of the members of a committee present
at any meeting at which a quorum is present shall be the act of such committee.
The members of a committee shall act only as a committee, and the individual
members thereof shall have no powers as such.
Section 4.5. Record of Proceedings, etc. Each committee shall keep a record
of its acts and proceedings, and shall report the same to the Board of Directors
when and as required by the Board of Directors.
Section 4.6. Organization, Meetings, Notices, etc. A committee may hold its
meetings at the principal office of the Corporation, or at any other place which
a majority of the committee may at any time agree upon. Each committee may make
such rules as it may deem expedient for the regulation and carrying on of its
meetings and proceedings. Unless otherwise ordered by the Executive Committee,
any notice of a meeting of such Committee may be given by the Secretary or by
the chairman of the Committee and shall be sufficiently given if mailed to each
member at his residence or usual place of business at least two days before the
day on which the meeting is to be held, or if sent to him at such place by
telegraph or cable, or delivered personally or by telephone not later than 24
hours prior to the time at which the meeting is to be held.
Section 4.7. Compensation. The members of any committee shall be entitled
to such compensation as may be allowed them by resolution of the Board of
Directors.
ARTICLE V.
OFFICERS
Section 5.1. Number. The officers of the Corporation shall be a Chairman of
the Board, Chief Executive Officer, one or more Vice Chairman of the Board and
Managing Directors, a Secretary, a Treasurer and such other officers as may be
appointed in accordance with the provisions of Section 5.3 of this Article V.
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Section 5.2. Election, Term of Office and Qualifications. The officers,
except as provided in Section 5.3 of this Article V, shall be chosen annually by
the Board of Directors. Each such officer shall, except as herein otherwise
provided, hold office until his successor shall have been chosen and shall
qualify. The Chairman of the Board of Directors, if any, and the Chief Executive
Officer shall be directors of the Corporation, and should any one of them cease
to be a director, he shall ipso facto cease to be such officer. Except as
otherwise provided by law, any number of offices may be held by the same person.
Section 5.3. Other Officers. Other officers, including one or more
Assistant Secretaries, may from time to time be appointed by the Board of
Directors, which other officers shall have such powers and perform such duties
as may be assigned to them by the Board of Directors or the officer or committee
appointing them.
Section 5.4. Removal of Officers. Any officer of the Corporation may be
removed from office, with or without cause, by a vote of a majority of the Board
of Directors.
Section 5.5. Resignation. Any officer of the Corporation may resign at any
time. Such resignation shall be in writing and shall take effect at the time
specified therein, and if no time be specified, at the time of its receipt by
the Chief Executive Officer or Secretary. The acceptance of a resignation shall
not be necessary in order to make it effective, unless so specified therein.
Section 5.6. Filling of Vacancies. A vacancy in any office shall be filled
by the Board of Directors or by the authority appointing the predecessor in such
office.
Section 5.7. Compensation. The compensation of the officers shall be fixed
by the Board of Directors, or by any committee upon whom power in that regard
may be conferred by the Board of Directors.
Section 5.8.Chairman of the Board of Directors and Chief Executive
Officer. The Chairman of the Board of Directors shall be a director and shall
preside at all meetings of the Board of Directors at which he shall be present,
and shall have such power and perform such duties as may from time to time be
assigned to him by the Board of Directors. He shall have power to call special
meetings of the stockholders or of the Board of Directors or of the Executive
Committee at any time. He shall be the Chief Executive Officer of the
Corporation, and shall have the general direction of the business, affairs and
property of the Corporation, and of its several officers, and shall have and
exercise all such powers and discharge such duties as usually pertain to the
office of Chief Executive Officer.
Section 5.9. Vice Chairmen of the Board of Directors and Managing
Directors. The Vice Chairmen of the Board of Directors
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and the Managing Directors of the Corporation, shall, subject to the direction
of the Board of Directors, at the request of the Chief Executive Officer or in
his absence, or in case of his inability to perform his duties from any cause,
perform the duties of the Chief Executive Officer, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the Chief
Executive Officer. The Vice Chairmen of the Board of Directors and the Managing
Directors shall also perform such other duties as may be assigned to them by the
Board of Directors, and the Board of Directors may determine the order of
priority among them.
Section 5.10. Secretary. The Secretary shall perform such duties as are
incident to the office of Secretary, or as may from time to time be assigned to
him by the Board of Directors, or as are prescribed by these Bylaws.
Section 5.11. Treasurer. The Treasurer shall perform such duties and have
powers as are usually incident to the office of Treasurer or which may be
assigned to him by the Board of Directors.
ARTICLE VI.
CAPITAL STOCK
Section 6.1. Issue of Certificates of Stock. Certificates of capital stock
shall be in such form as shall be approved by the Board of Directors. They shall
be numbered in the order of their issue and shall be signed by the Chief
Executive Officer or the Vice Chairman or Managing Director, and the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and the
seal of the Corporation or a facsimile thereof shall be impressed or affixed or
reproduced thereon, provided, however, that where such certificates are signed
by a transfer agent or an assistant transfer agent or by a transfer clerk acting
on behalf of the Corporation and a registrar, the signature of any such Chief
Executive Officer, Vice Chairman, Managing Director, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer may be facsimile. In case any
officer or officers who shall have signed, or whose facsimile signature or
signatures shall have been used on any such certificate or certificates shall
cease to be such officer or officers of the Corporation, whether because of
death, resignation or otherwise, before such certificate or certificates shall
have been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as though
the person or persons who signed such certificate or certificates, or whose
facsimile signature or signatures shall have been used thereon have not ceased
to be such officer or officers of the Corporation.
Section 6.2. Registration and Transfer of Shares. The name of each person
owning a share of the capital stock of the
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Corporation shall be entered on the books of the Corporation together with the
number of shares held by him, the numbers of the certificates covering such
shares and the dates of issue of such certificates. The shares of stock of the
Corporation shall be transferable on the books of the Corporation by the holders
thereof in person, or by their duly authorized attorneys or legal
representatives, on surrender and cancellation of certificates for a like number
of shares, accompanied by an assignment or power of transfer endorsed thereon or
attached thereto, duly executed, and with such proof of the authenticity of the
signature as the Corporation or its agents may reasonably require. A record
shall be made of each transfer.
For purposes of clarification, the shares of the Corporation's capital
stock and any warrants, options, rights and other instruments or securities
convertible into or giving the holder thereof the right to purchase or receive
shares of capital stock of the Corporation shall be issued in registered form
and not in bearer form. The Board of Directors may make other and further rules
and regulations concerning the transfer and registration of certificates for
stock and may appoint a transfer agent or registrar or both and may require all
certificates of stock to bear the signature of either or both.
Section 6.3. Lost, Destroyed and Mutilated Certificates. The holder of any
stock of the Corporation shall immediately notify the Corporation of any loss,
theft, destruction or mutilation of the certificates therefor. The Corporation
may issue a new certificate of stock in the place of any certificate theretofore
issued by it alleged to have been lost, stolen or destroyed, and the Board of
Directors may, in its discretion, require the owner of the lost, stolen or
destroyed certificate, or his legal representatives, to give the Corporation a
bond, in such sum not exceeding double the value of the stock and with such
surety or sureties as they may require, to indemnify it against any claim that
may be made against it by reason of the issue of such new certificate and
against all other liability in the premises, or may remit such owner to such
remedy or remedies as he may have under the laws of the State of Delaware.
ARTICLE VII.
DIVIDENDS, SURPLUS, ETC
Section 7.1. General Discretion of Directors. The Board of Directors shall
have power to fix and vary the amount to be set aside or reserved as working
capital of the Corporation, or as reserves, or for other proper purposes of the
Corporation, and, subject to the requirements of the Certificate of
Incorporation, to determine whether any, if any, part of the surplus or net
profits of the Corporation shall be declared as dividends and paid to the
stockholders, and to fix the date or dates for the payment of dividends.
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ARTICLE VIII.
MISCELLANEOUS PROVISIONS
Section 8.1. Fiscal Year. The fiscal year of the Corporation shall commence
on the first day of April and end on the last day of March.
Section 8.2. Corporate Seal. The corporate seal shall be in such form as
approved by the Board of Directors and may be altered at their pleasure. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 8.3. Notices. Except as otherwise expressly provided, any notice
required by these Bylaws to be given shall be sufficient if given by depositing
the same in a post office or letter box in a sealed postpaid wrapper addressed
to the person entitled thereto at his address, as the same appears upon the
books of the Corporation, or by telegraphing or cabling the same to such person
at such addresses; and such notice shall be deemed to be given at the time it is
mailed, telegraphed or cabled.
Section 8.4. Waiver of Notice. Any stockholder or director may at any time,
by writing or by telegraph or by cable, waive any notice required to be given
under these Bylaws, and if any stockholder or director shall be present at any
meeting his presence shall constitute a waiver of such notice.
Section 8.5. Checks, Drafts, etc. All checks, drafts or other orders for
the payment of money, notes or 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
designated by resolution of the Board of Directors.
Section 8.6. Deposits. All funds of the Corporation shall be deposited from
time to time to the credit of the Corporation in such bank or banks, trust
companies or other depositories as the Board of Directors may select, and, for
the purpose of such deposit, checks, drafts, warrants and other orders for the
payment of money which are payable to the order of the Corporation, may be
endorsed for deposit, assigned and delivered by any officer of the Corporation,
or by such agents of the Corporation as the Board of Directors or the Chief
Executive Officer may authorize for that purpose.
Section 8.7. Voting Stock of Other Corporations. Except as otherwise
ordered by the Board of Directors or the Executive Committee, the Chief
Executive Officer or the Treasurer shall have full power and authority on behalf
of the Corporation to attend and to act and to vote at any meeting of the
stockholders of any corporation of which the Corporation is a stockholder and to
execute a proxy to any other person to represent the
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Corporation at any such meeting, and at any such meeting the Chief Executive
Officer or the Treasurer or the holder of any such proxy, as the case may be,
shall possess and may exercise any and all rights and powers incident to
ownership of such stock and which, as owner thereof, the Corporation might have
possessed and exercised if present. The Board of Directors or the Executive
Committee may from time to time confer like powers upon any other person or
persons.
Section 8.8. Indemnification of Officers and Directors. The Corporation
shall indemnify any and all of its directors or officers, including former
directors or officers, and any employee, who shall serve as an officer or
director of any corporation at the request of this Corporation, to the fullest
extent permitted under and in accordance with the laws of the State of Delaware.
ARTICLE IX.
AMENDMENTS
The Board of Directors shall have the power to make, rescind, alter, amend and
repeal these Bylaws, provided, however, that the stockholders shall have power
to rescind, alter, amend or repeal any bylaws made by the Board of Directors,
and to enact bylaws which if so expressed shall not be rescinded, altered,
amended or repealed by the Board of Directors. No change of the time or place
for the annual meeting of the stockholders for the election of directors shall
be made except in accordance with the laws of the State of Delaware.
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