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 28, 1998
--------------------------------
FIRST PRIORITY GROUP, INC.
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(Exact name of registrant as specified in its charter)
New York 0-21467 11-2750412
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State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
51 East Bethpage Road, Plainview, New York 11803-4224
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 694-1010
------------------------------
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(Former name or former address, if changed since last report.)
This document contains 18 pages. The Exhibit Index is located on page 3.
Page 1 of 18
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Item 5. Other Events.
a. On December 28, 1998, the Board of Directors of First Priority Group,
Inc. (the "Company") authorized the issuance of one preferred share purchase
right (a "Right") for each outstanding share of common stock, par value $0.015
per share (the "Common Stock"), of the Company. The description and terms of the
Rights, and certain defined terms used herein, are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and North American
Transfer Co. as Rights Agent (the "Rights Agent"), dated as of December 28, 1998
and attached hereto as Exhibit 4, and are summarized in Exhibit C to the Rights
Agreement. The Rights Agreement, including Exhibit C thereto, is hereby
incorporated herein by reference.
b. On December 28, 1998, the Board of Directors of the Company also
adopted the following amendments to the Company's By-laws:
(i) Article I Section 2 was amended to provide that shareholders shall
have no right to call special meeting of shareholders.
(ii) Article I Section 3 was amended to require that a shareholder
desiring to bring up business at an annual meeting so notify the Company not
less than 60 days nor more than 90 days prior to the anniversary date of
the immediately preceding annual meeting (the "Anniversary Date"), or if the
annual meeting is scheduled to be held on a date more than 30 days before the
Anniversary Date or more than 60 days after the Anniversary Date, not later than
the close of business on the later of (A) the 75th day prior to the scheduled
date of the annual meeting or (B) the 15th day following the day on which public
announcement of the date of such annual meeting is made by the Company.
(iii) Article II Section 1 was amended to implement a classified board
of directors. The directors will be classified, with respect to the term for
which they hold office, into three classes, as nearly equal as possible. One
class of directors (consisting of one director) shall be elected for a term
expiring at the annual meeting to be held in 1999, another class (consisting of
two directors) shall be elected for a term expiring at the annual meeting to be
held in 2000, and another class (consisting of two directors) shall be elected
for a term expiring at the annual meeting to be held in 2001.
(iv) Article II Section 2 was amended to require that shareholders
desiring to nominate one or more candidates for election to the board of
directors so notify the Company not less than 60 days nor more than 90 days
prior to the Anniversary Date, or if the annual meeting is scheduled to be held
on a date more than 30 days before the Anniversary Date or more than 60 days
after the Anniversary Date, not later than the close of business on the later of
(A) the 75th day prior to the scheduled date of the annual meeting or (B) the
15th day following the day on which public announcement of the date of such
annual meeting is made by the Company.
(v) Article IX Section 1 was amended to require that the by-laws may
only be amended or repealed by the shareholders by an affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the total votes eligible to
be cast on such amendment or repeal by holders of voting stock, voting together
as a class.
Page 2 of 18 Pages
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The amendments relating to the classified board (clause (iii) above) and
the shareholder super-majority provision (clause (v) above) are subject to
shareholder approval, which the Company currently intends to seek at the next
annual meeting of shareholders. The amended and restated By-laws are attached
hereto as Exhibit 3, and are hereby incorporated herein by reference.
Item 7. Exhibits.
3 Amended and Restated By-laws of First Priority Group, Inc.
4 Shareholders Rights Agreement, dated as of December 28, 1998, between
First Priority Group, Inc. and North American Transfer Co., as Rights
Agent, together with Exhibits A, B and C attached thereto.
(Incorporated by reference to the Registrant's Registration Statement
on Form 8-A filed on December 31, 1998).
Page 3 of 18 Pages
<PAGE>
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 thereunto duly authorized.
FIRST PRIORITY GROUP, INC.
By: /s/ Barry Siegel
---------------------------
Name: Barry Siegel
Title: Chairman and CEO
Date: January 4, 1999
Page 4 of 18 Pages
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Exhibits Index
Exhibit Number Description
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3 Amended and Restated Bylaws of First Priority Group, Inc.
4 Shareholder Rights Agreement, dated as of December 28, 1998
between First Priority Group, Inc. and North American
Transfer Co., as Rights Agent, together with Exhibits A, B
and C thereto. (Incorporated by reference to the
Registrant's Registration Statement on Form 8-A filed on
December 31, 1998).
Page 5 of 18 Pages
Exhibit 3
AMENDED AND RESTATED
BY-LAWS
OF
FIRST PRIORITY GROUP, INC.
ARTICLE I. SHAREHOLDERS' MEETING
--------------------------------
Section 1. - Annual Meeting.
- - ----------------------------
The annual meeting of the shareholders shall be held within five
months after the close of the fiscal year of the Corporation, for the purpose of
electing directors, and transacting such other business as may properly come
before the meeting.
Section 2. - Special Meetings.
- - ------------------------------
Special meetings of shareholders may be called at any time upon
the written request of two-thirds of the Board of Directors stating the purpose
of the meeting.
Section 3. - Matters to be Considered at Annual Meetings.
- - ---------------------------------------------------------
At any annual meeting of shareholders or any special meeting in
lieu of the annual meeting of shareholders, only such business shall be
conducted, and only such proposals shall be acted upon as shall have been
properly brought before such annual meeting. To be considered as properly
brought before an annual meeting, business must be: (a) specified in the notice
of meeting, (b) otherwise properly brought before the meeting by, or at the
direction of, the Board of Directors, or (c) otherwise properly brought before
the meeting by any holder of record (both as of the time notice of such proposal
is given by the shareholder as set forth below and as of the record date for the
annual meeting in question) of any shares of capital stock of the Corporation
entitled to vote at such annual meeting on such business who complies with the
requirements set forth in this Section 3.
In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a shareholder of record of any
shares of capital stock entitled to vote at such annual meeting, such
shareholder shall: (i) give timely notice as required by this Section 3 to the
Secretary of the Corporation, and (ii) be present at such meeting, either in
person or by a representative. For all annual meetings, a shareholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 60 days nor more than 90 days
prior to the anniversary date of the immediately preceding Annual Meeting (the
"Anniversary Date"); provided, however, that in the event the annual meeting is
scheduled to be held on a date more than 30 days before the Anniversary Date or
more than 60 days after the Anniversary Date, a shareholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on the later of
(A) the
Page 6 of 18 Pages
<PAGE>
75th day prior to the scheduled date of such annual meeting, or (B) the 15th day
following the day on which public announcement of the date of such annual
meeting is first made by the Corporation.
For purposes of these By-laws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (iii) a letter or report sent to shareholders of
record of the Corporation at the close of business on the day of the mailing of
such letter or report.
A shareholder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an annual meeting: (i) a brief description
of the business the shareholder desires to bring before such annual meeting and
the reasons for conducting such business at such annual meeting, (ii) the name
and address, as they appear on the Corporation's stock transfer books, of the
shareholder proposing such business, (iii) the class and number of shares of the
Corporation's capital stock beneficially owned by the shareholder proposing such
business, (iv) the names and addresses of the beneficial owners, if any, of any
capital stock of the Corporation registered in such shareholder's name on such
books, and the class and number of shares of the Corporation's capital stock
beneficially owned by such beneficial owners, (v) the names and addresses of
other shareholders known by the shareholder proposing such business to support
such proposal, and the class and number of shares of the Corporation's capital
stock beneficially owned by such other shareholders, and (vi) any material
interest of the shareholder proposing to bring such business before such meeting
(or any other shareholders known to be supporting such proposal) in such
proposal.
If the Board of Directors or a designated committee thereof determines
that any shareholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 3 or that the information provided in a
shareholder's notice does not satisfy the information requirements of this
Section 3 in any material respect, such proposal shall not be presented for
action at the annual meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any shareholder
proposal in the manner set forth above, the presiding officer of the annual
meeting shall determine whether the shareholder proposal was made in accordance
with the terms of this Section 3. If the presiding officer determines that any
shareholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 3 or that the information provided in a shareholder's
notice does not satisfy the information requirements of this Section 3 in any
material respect, such proposal shall not be presented for action at the annual
meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a shareholder proposal was made in
accordance with the requirements of this Section 3, the presiding officer shall
so declare at the annual meeting and ballots shall be provided for use at the
meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this by-law, a shareholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder with respect to the matters set forth in this by-law, and nothing in
this by-law shall be deemed to affect any rights of shareholders to request
inclusion of proposals in the Corporation's proxy statement, or the
Corporation's right to refuse inclusion thereof, pursuant to Rule 14a-8 under
the Exchange Act."
<PAGE>
Section 4. - Place of Meetings.
- - -------------------------------
All meetings of shareholders shall be held at the principal
office of the Corporation, or at such other places within or without the State
of New York as shall be designated in the notices or waivers of notice of such
meetings.
Section 5. - Notice of Meetings.
- - --------------------------------
(a) Written notice of each meeting of shareholders, whether
annual or special, stating the time when and place where it is to be held, shall
be served either personally or by mail, not less than ten or more than fifty
days before the meeting, upon each shareholder of record entitled to vote at
such meeting, and to any other shareholder to whom the giving of notice may be
required by law. Notice of a special meeting shall also state the purpose or
purposes for which the meeting is called, and shall indicate that it is being
issued by, or at the direction of, the person or persons calling the meeting.
If, at any meeting, action is proposed to be taken that would, if taken, entitle
shareholders to receive payment for their shares pursuant to the Business
Corporation Law, the notice of such meeting shall include a statement of that
purpose and to that effect. If mailed, such notice shall be directed to each
such shareholder at his address, as it appears on the records of the
shareholders of the Corporation, unless he shall have previously filed with the
Secretary of the Corporation a written request that notices intended for him be
mailed to some other address, in which case, it shall be mailed to the address
designated in such request.
(b) Notice of any meeting need not be given to any person who may
become a shareholder of record after the mailing of such notice and prior to the
meeting, or to any shareholder who attends such meeting, in person or by proxy,
or to any shareholder who, in person or by proxy, submits a signed waiver of
notice either before or after such meeting. Notice of any adjourned meeting of
shareholders need not be given, unless otherwise required by statute.
Section 6. - Quorum.
- - --------------------
(a) Except as otherwise provided herein, or by statute, or in the
Certificate of Incorporation (such Certificate and any amendments thereof being
hereinafter collectively referred to as the "Certificate of Incorporation"), at
all meetings of shareholders of the Corporation, the presence at the
commencement of such meetings in person or by proxy of shareholders holding of
record a majority of the total number of shares of the Corporation then issued
and outstanding and entitled to vote, shall be necessary and sufficient to
constitute a quorum for the transaction of any business. The withdrawal of any
shareholder after the commencement of a meeting shall have no effect on the
existence of a quorum, after a quorum has been established at such meeting.
(b) Despite the absence of a quorum at any annual or special
meeting of shareholders, the shareholders, by a majority of the votes cast by
the holders of shares entitled to vote thereon, may adjourn the meeting. At any
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called
if a quorum had been present.
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<PAGE>
Section 7. - Voting.
- - --------------------
(a) Except as otherwise provided by statute or by the Certificate
of Incorporation, any corporate action, other than the election of directors to
be taken by vote of the shareholders, shall be authorized by a majority of votes
cast at a meeting of shareholders by the holders of shares entitled to vote
thereon.
(b) Except as otherwise provided by statute or by the Certificate
of Incorporation, at each meeting of shareholders, each holder of record of
stock of the Corporation entitled to vote thereat, shall be entitled to one vote
for each share of stock registered in his name on the books of the Corporation.
(c) Each shareholder entitled to vote or to express consent or
dissent without a meeting, may do so by proxy; provided, however, that the
instrument authorizing such proxy to act shall have been executed in writing by
the shareholder himself, or by his attorney-in-fact thereunto duly authorized in
writing. No proxy shall be valid after the expiration of eleven months from the
date of its execution, unless the persons executing it shall have specified
therein the length of time it is to continue in force. Such instrument shall be
exhibited to the Secretary at the meeting and shall be filed with the records of
the Corporation.
(d) Any resolution in writing, signed by all of the shareholders
entitled to vote thereon, shall be and constitute action by such shareholders to
the effect therein expressed, with the same force and effect as if the same had
been duly passed by unanimous vote at a duly called meeting of shareholders and
such resolution so signed shall be inserted in the Minute Book of the
Corporation under its proper date.
ARTICLE II. DIRECTORS
---------------------
Section 1. - Number and Term.
- - -----------------------------
The number of directors constituting the entire board of directors of
this Corporation shall not be less than three (3) or more than seven (7).
However, the number of directors constituting the entire board of directors is
hereby fixed at five (5). The directors shall be classified, with respect to the
term for which they severally hold office, into three classes, as nearly equal
in number as possible. One class of directors (consisting of one director) shall
be elected for a term expiring at the annual meeting to be held in 1999, another
class (consisting of two directors) shall be elected for a term expiring at the
annual meeting to be held in 2000, and another class (consisting of two
directors) shall be elected for a term expiring at the annual meeting to be held
in 2001. Members of each class shall hold office until their successors are duly
elected and qualified or until their earlier death, disqualification,
resignation or removal. At each succeeding annual meeting, the successors of the
class of directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting held in the third year following the year of
their election.
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<PAGE>
The number of directors may be increased or decreased within the range
of the foregoing limitations by amendment of these by-laws by vote of the
shareholders as hereinafter provided in Article IX, dealing generally with
by-law amendments. The number of directors may likewise be increased or
decreased by action of the board of directors upon a vote of a majority of the
entire board subject to shareholder approval at the next annual meeting of
shareholders, and provided that special notice be given to shareholders of
record in connection with the notice otherwise required by these by-laws of
shareholders' meetings or otherwise at least ten (10) days in advance of the
meeting, that a proposal to increase or decrease the number of directors, and in
either case, to what extent, will be brought before the meeting for
consideration and approval or disapproval.
Section 2. -- Director Nominations.
- - -----------------------------------
Nominations of candidates for election as directors of the Corporation
at any annual meeting may be made only (a) by, or at the direction of, the Board
of Directors or (b) by any holder of record (both as of the time notice of such
nomination is given by the shareholder as set forth below and as of the record
date for the Annual Meeting in question) of any shares of the capital stock of
the Corporation entitled to vote for the election of directors at such annual
meeting who complies with the timing, informational and other requirements set
forth in this Section 2. Any shareholder who seeks to make such a nomination or
his representative must be present in person at the annual meeting. Only persons
nominated in accordance with the procedures set forth in this Section 2 shall be
eligible for election as directors at an annual meeting.
Nominations, other than those made by, or at the direction of, the Board
of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 2. For all annual
meetings, a shareholder's notice shall be timely if delivered to, or mailed to
and received by, the Corporation at its principal executive office not less than
60 days nor more than 90 days prior to the Anniversary Date; provided, however,
that in the event the Annual Meeting is scheduled to be held on a date more than
30 days before the Anniversary Date or more than 60 days after the Anniversary
Date, a shareholder's notice shall be timely if delivered to, or mailed and
received by, the Corporation at its principal executive office not later than
the close of business on the later of (i) the 75th day prior to the scheduled
date of such Annual Meeting or (ii) the 15th day following the day on which
public announcement of the date of such Annual Meeting is first made by the
Corporation.
A shareholder's notice to the Secretary shall set forth as to each
person whom the shareholder proposes to nominate for election or re-election as
a director: (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation's capital stock which are
beneficially owned by such person on the date of such shareholder notice, (iv)
the consent of each nominee to serve as a Director if elected, and (v) such
information concerning such person as is required to be disclosed concerning a
nominee for election as director of the Corporation pursuant to the rules and
regulations under the Exchange Act. A shareholder's notice to the Secretary
shall further set forth as to the shareholder giving such notice: (i) the name
and address, as they appear on the Corporation's stock transfer books, of such
shareholder and of the beneficial owners (if any) of the Corporation's capital
stock
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<PAGE>
registered in such shareholder's name and the name and address of other
shareholders known by such shareholder to be supporting such nominee(s), (ii)
the class and number of shares of the Corporation's capital stock which are held
of record, beneficially owned or represented by proxy by such shareholder and by
any other shareholders known by such shareholder to be supporting such
nominee(s) on the record date for the annual meeting in question (if such date
shall then have been made publicly available) and on the date of such
stock-holder's notice, and (iii) a description of all arrangements or
understandings between such shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such shareholder or in connection therewith.
If the Board of Directors or a designated committee thereof determines
that any shareholder nomination was not timely made in accordance with the terms
of this Section 2 or that the information provided in a shareholder's notice
does not satisfy the informational requirements of this Section 2 in any
material respect, then such nomination shall not be considered at the annual
meeting in question. If neither the Board of Directors nor such committee makes
a determination as to whether a nomination was made in accordance with the
provisions of this Section 2, the presiding officer of the annual meeting shall
determine whether a nomination was made in accordance with such provisions. If
the presiding officer determines that any shareholder nomination was not timely
made in accordance with the terms of this Section 2 or that the information
provided in a shareholder's notice does not satisfy the informational
requirements of this Section 2 in any material respect, then such nomination
shall not be considered at the annual meeting in question. If the Board of
Directors, a designated committee thereof or the presiding officer determines
that a nomination was made in accordance with the terms of this Section 2, the
presiding officer shall so declare at the annual meeting and such nominee shall
be eligible for election at the meeting.
No person shall be elected by the shareholders as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. Election of directors at the annual meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or the presiding
officer at such annual meeting. If written ballots are to be used, ballots
bearing the names of all the persons who have been nominated for election as
directors at the annual meeting in accordance with the procedures set forth in
this Section 2 shall be provided for use at the annual meeting.
Section 3. - Duties of Directors.
- - ---------------------------------
The Board of Directors shall have the control and general
management of the affairs and business of the Corporation unless otherwise
provided in the Certificate of Incorporation. Such directors shall in all cases
act as a Board regularly convened by a majority, and they may adopt such rules
and regulations for the conduct of their meetings, and the management and
business of the Corporation as they may deem proper, not inconsistent with these
By-Laws and the Laws of the State of New York.
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Section 4. - Directors' Meetings.
- - ---------------------------------
Regular meetings of the Board of Directors shall be held
immediately following the annual meetings of the shareholders, and at such other
times as the Board of Directors may determine. Special meetings of the Board of
Directors may be called by the President or the Chairman of the Board at any
time and must be called by the President or the Secretary upon the written
request of two Directors.
Section 5. - Notice of Special Meetings.
- - ----------------------------------------
Notice of special meetings of the Board of Directors shall be
served personally or by mail addressed to each Director at his last known
address no less than five or more than twenty days prior to the date of such
meeting. The notice of such meeting shall contain a statement of the business to
be transacted thereat. No business other than that specified in the call for the
meeting shall be transacted at any such special meeting. Notice of special
meeting may be waived by any Director by written waiver or by personal
attendance thereat without protest of lack of notice to him.
Section 6. - Quorum.
- - --------------------
At any meeting of the Board of Directors, except as otherwise
provided by the Certificate of Incorporation, or by these By-Laws, a majority of
the Board of Directors shall constitute a quorum. However, a lesser number when
not constituting a quorum may adjourn the meeting from time to time until a
quorum shall be present or represented.
Section 7. - Voting.
- - --------------------
Except as otherwise provided by statute, or by the Certificate of
Incorporation, or by these By-Laws, the affirmative vote of a majority of the
Directors present at any meeting of the Board of Directors at which a quorum is
present shall be necessary for the transaction of any item of business thereat.
Any resolution in writing, signed by all of the directors entitled to vote
thereon, shall be and constitute action by such directors to the effect therein
expressed, with the same force and effect as if the same had been duly passed by
unanimous vote at a duly called meeting of directors and such resolution so
signed shall be inserted in the Minute Book of the Corporation under its proper
date.
Section 8. - Vacancies.
- - -----------------------
Unless otherwise provided in the Certificate of Incorporation,
vacancies in the Board of Directors occurring between annual meetings of the
shareholders shall be filled for the unexpired portion of the term by a majority
vote of the remaining Directors, even though less than a quorum exists.
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<PAGE>
Section 9. - Removal of Directors.
- - ----------------------------------
Any or all of the directors may be removed, either with or
without cause at any time by a vote of the shareholders at any meeting called
for such purpose.
Section 10. - Resignation.
- - --------------------------
Any director may resign at any time by giving written notice to
the Board of Directors, the President or the Secretary of the Corporation.
Unless otherwise specified in such written notice, such resignation shall take
effect upon receipt thereof by the Board of Directors or such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
Section 11. - Salary.
- - ---------------------
No stated salary shall be paid to directors, as such, for their
services, but by resolution of the Board of Directors a fixed sum and expenses
of attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board; provided, however, that nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 12. - Contracts.
- - ------------------------
(a) No contract or other transaction between this Corporation and
any other Corporation shall be impaired, affected or invalidated, nor shall any
director be liable in any way by reason of the fact that any one or more of the
directors of this Corporation is or are interested in, or is a director or
officer, or are directors or officers of such other Corporation, provided that
such facts are disclosed or made known to the Board of Directors.
(b) Any director, personally and individually, may be interested
in any contract or transaction of this Corporation, and no director shall be
liable in any way by reason of such interest, provided that the fact of such
interest be disclosed or made known to the Board of Directors, and provided that
the Board of Directors shall authorize, approve or ratify such contract or
transaction by the vote (not counting the vote of any such director) of a
majority of a quorum, notwithstanding the presence of any such director at the
meeting at which such action is taken. Such director or directors may be counted
in determining the presence of a quorum at such meeting. This Section shall not
be construed to impair or invalidate or in any way affect any contract or other
transaction which would otherwise be valid under the law (common, statutory or
otherwise) applicable thereto.
Section 13. - Committees.
- - -------------------------
The Board of Directors, by resolution adopted by a majority of
the entire Board, may from time to time designate from among its members an
executive committee and such other committees, and alternate members thereof, as
they deem desirable, each consisting of three or more members, with such powers
and authority (to the extent permitted by law) as may be provided in such
resolution. Each such committee shall serve at the pleasure of the Board.
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ARTICLE III. OFFICERS
---------------------
Section 1. - Number of Officers.
- - --------------------------------
(a) The officers of the Corporation shall consist of a President,
a Secretary, a Treasurer, and such other officers, including a Chairman of the
Board of Directors, and one or more Vice Presidents as the Board of Directors
may from time to time deem advisable. Any officer other than the Chairman of the
Board of Directors may be, but is not required to be, a director of the
Corporation. Any officer may hold more than one office, except the same person
may not hold the office of President and Secretary.
Section 2. - Election of Officers.
- - ----------------------------------
Officers of the Corporation shall be elected at the first meeting
of the Board of Directors. Thereafter, and unless otherwise provided in the
Certificate of Incorporation, the officers of the Corporation shall be elected
annually by the Board of Directors at its meeting held immediately after the
annual meeting of shareholders and shall hold office for one year and until
their successors have been duly elected and qualified.
Section 3. - Removal of Officers.
- - ---------------------------------
Any officer elected by the Board of Directors may be removed,
with or without cause, and a successor elected, by vote of the Board of
Directors, regularly convened at a regular or special meeting. Any officer
elected by the shareholders may be removed, with or without cause, and a
successor elected, by vote of the shareholders, regularly convened at an annual
or special meeting.
Section 4. - President.
- - -----------------------
The President shall be the chief executive officer of the
Corporation and shall have general charge of the business, affairs and property
thereof, subject to direction of the Board of Directors, and shall have general
supervision over its officers and agents. He shall, if present, preside at all
meetings of the Board of Directors in the absence of a Chairman of the Board and
at all meetings of shareholders. He may do and perform all acts incident to the
office of President.
Section 5. - Vice-President.
- - ----------------------------
In the absence of or inability of the President to act, the
Vice-President shall perform the duties and exercise the powers of the President
and shall perform such other functions as the Board of Directors may from time
to time prescribe.
Section 6. - Secretary.
- - -----------------------
The Secretary shall:
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<PAGE>
(a) Keep the minutes of the meetings of the Board of Directors
and of the shareholders in appropriate books.
(b) Give and serve all notice of all meetings of the Corporation.
(c) Be custodian of the records and of the seal of the
Corporation and affix the latter to such instruments or documents as may be
authorized by the Board of Directors.
(d) Keep the shareholder records in such a manner as to show at
any time the amount of shares, the manner and the time the same was paid for,
the names of the owners thereof alphabetically arranged and their respective
places of residence or their Post Office address, the number of shares owned by
each of them and the time at which each person became owner, and keep such
shareholder records available daily during the usual business hours at the
office of the Corporation subject to the inspection of any person duly
authorized, as prescribed by law.
(e) Do and perform all other duties incident to the office of
Secretary.
Section 7. - Treasurer.
- - -----------------------
The Treasurer shall:
(a) Have the care and custody of and be responsible for all of
the funds and securities of the Corporation and deposit of such funds in the
name and to the credit of the Corporation in such a bank and safe deposit vaults
as the Directors may designate.
(b) Exhibit at all reasonable times his books and accounts to any
Director or shareholder of the Corporation upon application at the office of the
Corporation during business hours.
(c) Render a statement of the condition of the finances of the
Corporation at each stated meeting of the Board of Directors if called upon to
do so, and shall report at the annual meeting of shareholders. He shall keep at
the office of the Corporation correct books of account of all of its business
and transactions and such books or account as the Board of Directors may
require. He shall do and perform all other duties incident to the office of the
Treasurer.
Section 8. - Duties of Officers May be Delegated.
- - -------------------------------------------------
In the case of the absence of any officer of the Corporation, or
for any reason the Board may deem sufficient, the Board may, except as otherwise
provided in these By-Laws, delegate the powers or duties of such officers to any
other officer or any Director for the time being, provided a majority of the
entire Board concur therein.
Section 9. - Vacancies - How Filed.
- - -----------------------------------
Should any vacancy in any office occur by death, resignation or
otherwise, the same shall be filled, without undue delay, by the Board of
Directors at its next regular meeting or at a
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special meeting called for that purpose except as otherwise provided in the
Certificate of Incorporation.
Section 10. - Compensation of Officers.
- - ---------------------------------------
The officers shall receive such salary or compensation as may be
fixed and determined by the Board of Directors, except as otherwise provided in
the Certificate of Incorporation.
ARTICLE IV. CERTIFICATES REPRESENTING SHARES
--------------------------------------------
Section 1. - Issue of Certificates Representing Shares.
- - -------------------------------------------------------
The President shall cause to be issued to each shareholder one or
more certificates, under the seal of the Corporation, signed by the President
(or Vice-President) and the Treasurer (or Secretary) certifying the number of
shares owned by him in the Corporation.
Section 2. - Lost or Destroyed Certificates.
- - --------------------------------------------
The holder of any certificate representing shares of the
Corporation shall immediately notify the Corporation of any loss or destruction
of the certificate representing the same. The Corporation may issue a new
certificate in the place of any certificate therefore issued by it, alleged to
have been lost or destroyed. On production of such evidence of loss or
destruction as the Board of Directors in its discretion may require, the Board
of Directors may, in its discretion, require the owner of the lost or destroyed
certificate or his legal representatives, to give the Corporation a bond in such
sum as the Board may direct, and with such surety or guarantee as may be
satisfactory to the Board, to indemnify the Corporation against any claims,
loss, liability or damage it may suffer on account of the issuance of the new
certificate. A new certificate may be issued without requiring any such evidence
or bond when, in the judgment of the Board of Directors, it is proper so to do.
Section 3. - Transfers of Shares.
- - ---------------------------------
(a) Transfers of shares of the Corporation shall be made on the
shares records of the Corporation only by the holder of record thereof, in
person or by his duly authorized attorney, upon surrender for cancellation of
the certificate or certificates representing such shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, with
such proof of the authenticity of the signature and of authority to transfer and
of payment of transfer taxes as the Corporation or its agents may require.
(b) The Corporation shall be entitled to treat the holder of
record of any share or shares as the absolute owner thereof for all purposes
and, accordingly, shall not be bound to recognize any legal, equitable or other
claim to, or interest in, such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by law.
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<PAGE>
ARTICLE V. SEAL
---------------
The seal of the Corporation shall be as follows:
ARTICLE VI. DIVIDENDS OR OTHER DISTRIBUTIONS
---------------------------------------------
The Corporation, by vote of the Board of Directors, may declare
and pay dividends or make other distributions in cash or its bonds or its
property on its outstanding shares to the extent as provided and permitted by
law, unless contrary to any restriction obtained in the Certificate of
Incorporation.
ARTICLE VII. NEGOTIABLE INSTRUMENTS
------------------------------------
All checks, notes or other negotiable instruments shall be signed
on behalf of the Corporation by such of the officers, agents and employees as
the Board of Directors may from time to time designate, except as otherwise
provided in the certificate of Incorporation.
ARTICLE VIII. FISCAL YEAR
-------------------------
The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors.
ARTICLE IX. AMENDMENTS
----------------------
Section 1. - By Shareholders.
- - -----------------------------
These by-laws may be amended or repealed at any annual meeting of
shareholders, or special meeting of shareholders called for such purpose, by the
affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the
total votes eligible to be cast on such amendment or repeal by holders of voting
stock, voting together as a single class; provided, however, that if the Board
of Directors recommends that shareholders approve such amendment or repeal at
such meeting of shareholders, such amendment or repeal shall only require the
affirmative vote of a majority of the
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<PAGE>
total votes eligible to be cast on such amendment or repeal by holders of voting
stock, voting together as a single class.
Section 2. - By Directors.
- - --------------------------
The Board of Directors shall have power to make, adopt, alter,
amend and repeal, from time to time, by-laws of the Corporation; provided,
however, that the shareholders entitled to vote with respect thereto as in this
Article IX above-provided may alter, amend or repeal by-laws made by the Board
of Directors, except that the Board of Directors shall have no power to change
the quorum for meetings of shareholders or of the Board of Directors, or to
change any provisions of the by-laws with respect to the removal of directors or
the filling of vacancies in the Board resulting from the removal by the
shareholders. If any by-law regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set forth
in the notice of the next meeting of shareholders for the election of directors,
the by-law so adopted, amended or repealed, together with a concise statement of
the changes made.
ARTICLE X. OFFICES
------------------
The offices of the Corporation shall be located in the City,
County and State designated in the Certificate of Incorporation. The Corporation
may also maintain offices at such other places within or without the United
States as the Board of Directors may, from time to time, determine.
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