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FORM 10-Q/A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT TO APPLICATION OR REPORT
Filed pursuant to Section 12, 13, or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
ALC COMMUNICATIONS CORPORATION
(Name of Issuer)
Amendment No. 3
The undersigned registrant hereby amends Exhibit 3.1, appearing in the
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1994 (Form
10-Q).
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
ALC COMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/ Marvin C. Moses
-----------------------------
Marvin C. Moses,
Executive Vice President
and Chief Financial Officer
Dated: December 8, 1994
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Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits required by Item 601 of Regulation S-K
EXHIBIT INDEX
[refer to definitions at end of Index]
<TABLE>
<CAPTION>
Incorporated Page
Exhibit Filed Herein by Number
Number Description Herewith Reference to: Herein
- ------ ----------- -------- ------------ ------
<S> <C> <C> <C> <C>
3.1 ALC Amended and X
Restated Bylaws
May 12, 1994
10.1 ALC Amended and X
Restated 1986 Option
Plan
May 12, 1994
10.2 ALC Amended and X
Restated 1990 Stock
Option Plan
May 12, 1994
10.3 ALC 1994 Non-Employee X
Director Stock Option
Plan
May 12, 1994
10.4 Stock Option X
Grumman Hill
May 12, 1994
10.5 Amendment/Advisory X
Agreement with Stock
Option
May 2, 1994
10.6 Termination/Advisory X
Agreement with Stock
Option
May 12, 1994
10.7 Amended & Restated X
Fiber Optic Lease
Agrmt. between MSM
and Allnet
August 1, 1994
(CONFIDENTIAL TREATMENT
REQUESTED FOR CERTAIN
PORTIONS OF THIS EXHIBIT)
10.8 Digital Service X
Agrmt. between MSM
and Allnet
August 5, 1994
(CONFIDENTIAL TREATMENT
REQUESTED FOR CERTAIN
PORTIONS OF THIS EXHIBIT)
11.1 Computation of X
Earnings Per Share
</TABLE>
DEFINITIONS: ALC: ALC Communications Corporation
ALLNET: Allnet Communication Services, Inc.
GRUMMAN HILL: Grumman Hill Associates, Inc.
MSM: MSM Associates, Limited Partnership
The Registrant hereby agrees to furnish the Commission a copy of each of the
Indentures or other instruments defining the rights of security holders of the
long-term debt securities of the Registrant and any of its subsidiaries for
which consolidated or unconsolidated financial statements are required to be
filed.
Exhibits 10.1 through 10.8 are included pursuant to SEC Regulation S-K, Item
601(b)(19).
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EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
ALC COMMUNICATIONS CORPORATION,
A Delaware Corporation
As of May 12, 1994
ARTICLE I
Offices
Section 1.1 Registered Office. The
Registered office of ALC Communications Corporation (the "Corporation")
in the State of Delaware shall be at The Prentice Hall Corporation Systems,
Inc., 229 South State Street, Dover, Delaware 19901 or any subsequent address
in Delaware of The Prentice Hall Corporation Systems, Inc. and the name of the
registered agent at that address shall be The Prentice Hall Corporation
Systems, Inc.
Section 1.2 Principal Executive
Office. The principal executive office of the Corporation shall be located at
Suite 350, 30300 Telegraph Road, Birmingham, Michigan 48010 or such other
place within or outside of the State of Delaware as the Board of Directors of
the Corporation ("Board of Directors") from time to time shall designate.
Section 1.3 Other Offices. The
Corporation may also have an office or offices at such other place or places,
either within or without the State of Delaware, as the Board of Directors may
from time to time determine or as the business of the Corporation may require.
ARTICLE II
Stockholders
Section 2.1 Annual Meetings. An
annual meeting of stockholders shall be held for the election of directors at
such date, time and place, either within or without the State of Delaware, as
may be designated by the Board of Directors from time to time. Any other
proper business may be transacted at the annual meeting.
At an annual meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) otherwise properly
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brought before the meeting by or at the direction of the Board of Directors, or
(c) otherwise properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be received at
the principal executive offices of the corporation: (1) not less than 60 days
in advance of such meeting if such meeting is to be held on a day which is
within 30 days preceding the anniversary of the previous year's annual meeting
or 90 days in advance of such meeting if such meeting is to be held on or after
the anniversary of the previous year's annual meeting; and (2) with respect to
any other annual meeting of stockholders, on or before the close of business on
the 15th day following the date (or the first date, if there be more than one)
of public disclosure of the date of such meeting. For the purposes of this
Section 2.1, the date of public disclosure of a meeting shall include, but not
be limited to, the date on which disclosure of the date of the meeting is first
made in a press release reported by the Dow Jones News Services, Associated
Press or comparable national news service, or in a document publicly filed by
the corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15 (d) (or the rules and regulations thereunder) of the
Securities Exchange Act of 1934, as amended. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name, age and business and residential address,
as they appear on the Corporation's records, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material interest of the
stockholder in such business. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 2.1. The chairman of
the annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 2.1 and if the chairman should
so determine, the chairman shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Section 2.2 Special Meetings. Special
meetings of stockholders may be called at any time for any purpose (a) by the
Chairman of the Board, if any, with the consent of a simple majority of the
Board of Directors, (b) by the President, with the consent of a simple majority
of the Board of Directors or (c) by a simple majority of the Board of
Directors, to be held at such date, time and place, either within or without
the State of Delaware, as may be stated in the notice of the meeting.
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Section 2.3 Notice of Meetings.
Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Unless otherwise provided
by law, the written notice of any meeting shall be given not less than ten nor
more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his or her address as it appears on the records of the
Corporation.
Section 2.4 Adjournments. Any meeting
of stockholders, annual or special, may adjourn from time to time to reconvene
at the same or some other place, and notice need not be given of any such
adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting the Corporation may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting.
Section 2.5 Quorum. At each meeting
of stockholders, except where otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the holders of a majority of the outstanding
shares of each call of stock entitled to vote at the meeting, present in person
or represented by proxy, shall constitute a quorum. Notwithstanding the
foregoing and the sentence which follows this sentence, the presence by proxy
or in person of not less than the holders of thirty-three and one-third percent
of the outstanding shares of the Common Stock of the Corporation shall be
required in order that a quorum be deemed constituted. For purposes of the
foregoing, two or more classes or series of stock shall be considered a single
class if the holders thereof are entitled to vote together as a single class at
the meeting. Once a quorum shall exist at any stockholders' meeting, such
quorum shall be deemed to exist throughout the meeting regardless of whether
the holders of shares shall thereafter leave the meeting in sufficient number
that the number of shares remaining represented at such meeting shall be lower
than the number which would originally have been required to establish such
quorum. In the absence of a quorum the stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided by
Section 2.4 of these Bylaws until a quorum shall attend. Shares of its own
capital stock belonging on the record date for the meeting to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of directors of such
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other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation to
vote stock, including but not limited to its own stock, held by it in a
fiduciary capacity.
Section 2.6 Organization. Meetings of
stockholders shall be presided over by the Chairman of the Board, if any, or in
the Chairman's absence by the President, or in the President's absence by a
Vice President, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by
a chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting. The person presiding at any meeting
of any of the Corporation's stockholders shall have the power to make rules and
decisions (i) as to whether and to what extent proxies present at the meeting
shall be recognized as valid, (ii) as to procedures for the conduct of such
meeting, and (iii) to resolve any questions which may be raised at such
meeting. The person presiding at any meeting of any of the Corporation's
stockholders shall have the right to delegate any of the powers contemplated by
this Section 2.6 to such other person or persons as the person presiding deems
desirable.
Section 2.7 Voting; Proxies. Unless
otherwise provided in the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders shall be entitled to one vote
for each share of stock held by him or her which has voting power upon the
matter in question. If the Certificate of Incorporation provides for more or
less than one vote for any share on any matter, every reference in these Bylaws
to a majority or other proportion of stock shall refer to such majority or
other proportion of the votes of such stock. Each stockholder entitled to vote
at a meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting 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 stockholder may revoke any proxy which is
not irrevocable by attending the meeting and any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or another duly executed proxy bearing a later date
with the Secretary of the Corporation. Voting at meetings of stockholders need
not be by written ballot and need not be conducted by inspectors unless the
holders of a majority of the outstanding shares of all classes of stock
entitled to vote thereon present in person or by proxy at such meeting shall so
determine. At all meetings of
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stockholders for the election of directors or otherwise, all elections and
questions shall, unless otherwise provided by law, by the Certificate of
Incorporation or these Bylaws, be decided by the vote of the holders of a
majority of the outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at the meeting.
Section 2.8 Fixing Date for
Determination of Stockholders of Record. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. If no record date is fixed: (1) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of busines on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held; (2) the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed;
and (3) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 2.9 List of Stockholders Entitled to Vote.
The Corporation's Secretary shall cause to be maintained a stock ledger of the
Corporation. The Secretary shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
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Section 2.10 Consent of Stockholders in
Lieu of Meeting. (a) Any action required to be taken at any annual or special
meeting of stockholders of the Corporation, or any action which may be taken at
any annual or special meeting of the stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in Delaware, its principal
place of business or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the stockholders are recorded. Delivery made to the
Corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested. (b) Every written consent shall
bear the date of signature of each stockholder who signs the consent and no
written consent shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the date the earliest dated consent
is delivered to the Corporation, a written consent or consents signed by a
sufficient number of holders to take action are delivered to the Corporation in
the manner prescribed in paragraph (c) of this Section.
(c) In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board of Directors to fix a record date. The
Board of Directors shall promptly, but in all events within ten (10) days after
the date on which such a request is received, adopt a resolution fixing the
record date. If no record date has been fixed by the Board of Directors within
ten (10) days of the date on which such a request is received, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required
by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation in accordance with paragraphs (a) and (b) of this Section. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
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(d) Within five (5) business days after receipt of the earliest dated consent
delivered to the Corporation in the manner provided in this Section, the
Corporation, shall retain nationally recognized independent inspectors of
elections for the purposes of performing a ministerial review of the validity
of consents and any revocations thereof. The cost of retaining inspectors of
election shall be borne by the Corporation.
(e) At any time that stockholders soliciting consents in writing to corporate
action have a good faith belief that the requisite number of valid and
unrevoked consents to authorize or take the action specified has been received
by them, the consents shall be delivered by the soliciting stockholders of the
Corporation's registered office in the State of Delaware or principal place of
business or to the Secretary of the Corporation, together with a certificate
stating their belief that the requisite number of valid and unrevoked consents
has been received as of a specific date, which date shall be identified in the
certificate. In the event that delivery shall be made at the Corporation's
registered office in Delaware, such delivery shall be made by hand or by
certified or registered mail, return receipt requested. Upon receipt of such
consents, the Corporation shall cause the consents to be delivered promptly to
the inspectors of election. The Corporation also shall deliver promptly to the
inspectors of election any revocations of consents in its possession, custody
or control as of the time of receipt of the consents.
(f) As promptly as practicable after the consents and revocations are received
by them, the inspectors of election shall issue a preliminary report to the
Corporation stating: (i) the number of shares represented by valid and
unrevoked consents; (ii) the number of shares represented by invalid consents;
(iii) the number of shares represented by invalid revocations; and (iv) the
number of shares entitled to submit consents as of the record date. Unless the
Corporation and the soliciting stockholders agree to a shorter or longer
period, the Corporation and the soliciting stockholders shall have five (5)
days to review the consents and revocations and to advise the inspections and
the opposing party in writing as to whether they intend to challenge the
preliminary report. If no timely written notice of an intention to challenge
the preliminary report is received, the inspectors shall certify the
preliminary report (as corrected or modified by virtue of the detection by the
inspectors of clerical errors) as their final report and deliver it to the
Corporation. If the Corporation or the soliciting stockholders give timely
written notice of an intention to challenge the preliminary report, a challenge
session shall be scheduled by the inspectors as promptly as practicable. A
transcript of the challenge session shall be recorded by a certified court
reporter. Following completion of the challenge session, the inspectors shall
issue as promptly as practicable their final report and deliver it to the
Corporation. A copy of the final report shall be included in
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the book in which the proceedings of meetings of stockholders are required.
(g) The Corporation shall give prompt notice to the stockholders of the
results of any consent solicitation or the taking of corporate action without a
meeting by less than unanimous consent.
(h) This Section shall in no way impair or diminish the right of any
stockholder or director, or any officer whose title to office is contested, to
contest the validity of any consent or revocation thereof, or to take any other
action with respect thereto.
Section 2.11. Nominations. Subject to the rights
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect Directors under specified circumstances,
nominations for the election of Directors may be made by the Board of Directors
or a committee appointed by the Board of Directors or by any stockholder
entitled to vote in the election of Directors generally. However, any
stockholder entitled to vote in the election of Directors generally may
nominate one or more persons for election as Director at a meeting only if
timely written notice of such stockholder's intent to make such nomination or
nominations has been given either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Corporation. To be timely, a
stockholder's notice must be received at the principal executive offices of the
corporation: (1) not less than 60 days in advance of such meeting if such
meeting is to be held on a day which is within 30 days preceding the
anniversary of the previous year's annual meeting or 90 days in advance of such
meeting if such meeting is to be held on or after the anniversary of the
previous year's annual meeting; and (2) with respect to any other annual
meeting of stockholders, on or before the close of business on the 15th day
following the date (or the first date, if there be more than one) of public
disclosure of the date of such meeting. For the purposes of this Section 2.11,
the date of public disclosure of a meeting shall include, but not be limited
to, the first date on which disclosure of the date of the meeting is made in a
press release reported by the Dow Jones News Services, Associated Press or
comparable national news service, or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Sections
13, 14 or 15(d)(or the rules and regulations thereunder) of the Securities
Exchange Act of 1934, as amended. Each such notice shall set forth: (a) the
name, age and business and residential address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between
stockholder and each nominee and any other person or persons (naming such
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person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (e) the written consent of each nominee to serve as a
Director of the Corporation if so elected. The chairman of the meeting shall
refuse to acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
ARTICLE III
Board of Directors
Section 3.1 Powers; Number;
Qualifications. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, except as may be otherwise
provided by law or in the Certificate of Incorporation. The Board of Directors
shall consist of seven members. Directors need not be stockholders.
Section 3.2 Election; Term of Office;
Resignation; Removal; Vacancies. Each director shall hold office until the
annual meeting of stockholders next succeeding his or her election and until
his or her successor is elected and qualified or until his earlier death,
resignation or removal. Any director may resign at any time upon written notice
to the Board of Directors or to the President, or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. Except as otherwise provided by law, or in
the Certificate of Incorporation, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote with respect thereto at an election of directors.
Except as otherwise fixed pursuant to the provisions of the Certificate of
Incorporation relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional Directors under specified circumstances, newly
created directorships resulting from any increase in the number of Directors
and any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall only be filled by the
affirmative vote of a majority of the remaining Directors then in office, even
though less than a quorum of the Board of Directors.
Section 3.3 Regular Meetings. Regular
meetings of the Board of Directors may be held at such places within or without
the State of Delaware and at such times as the
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Board may from time to time determine and, if so determined, notice thereof
need not be given.
Section 3.4 Annual Meetings. An
annual meeting of the Board of Directors shall be held each year at which the
Corporation's officers shall be appointed. The annual meeting of the Board of
Directors for any year shall take place after the annual meeting of the
Corporation's stockholders for such year. The exact time and place for such
meeting may be established by the Board of Directors by resolution and if it is
so established no notice of such meeting need be given to any director. If no
annual meeting of the Board of Directors shall have been called by resolution
of the Board of Directors on or prior to the date on which the annual meeting
of the Corporation's stockholders shall occur, then the annual meeting of the
Board of Directors may be called in the manner provided in Section 3.5 with
respect to special meetings.
Section 3.5. Special Meetings. Special
meetings of the Board of Directors may be held at any time or place within or
without the State of Delaware whenever called by the Chairman of the Board, if
any, by the President, or by a majority of the members of the Board of
Directors. Reasonable notice thereof shall be given by the person or persons
calling the meeting.
Section 3.6 Telephonic Meetings
Permitted. Members of the Board of Directors, or any committee, as the case
may be, may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Bylaw shall constitute presence
in person at such meeting.
Section 3.7 Quorum; Vote Retired for
Action. At all meetings of the Board of Directors a majority of the entire
Board of Directors shall constitute a quorum for the transaction of business.
The vote of a majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors unless the Certificate of
Incorporation or these Bylaws shall require a vote of a greater number. In
case at any meeting of the Board of Directors a quorum shall not be present,
the members of the Board of Directors present may adjourn the meeting from time
to time until a quorum shall attend.
Section 3.8 Organization. Meetings of
the Board of Directors shall be presided over by the Chairman of the Board, if
any, or in the Chairman's absence by the President, or in their absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in the Secretary's absence the chairman of the meeting may appoint
any person to act as secretary of the meeting.
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Section 3.9 Action by Directors
Without a Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, 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 of Directors or of such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 3.10 Compensation of Directors.
No director who is an employee of the Corporation or any of its subsidiaries
shall receive any stated salary or fee for his or her services as a director.
A director who is not an employee may receive such compensation for his or her
services as a director as is fixed by resolution of the Board of Directors.
Members of any committee of the Board of Directors may receive such
compensation for their duties as committee members as is fixed by resolution of
the Board of Directors. All directors and members of the committees of the
Board of Directors shall be reimbursed for their expenses incurred to attend
meetings.
ARTICLE IV
Committees
Section 4.1 Committees. The Board of
Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he, she or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of dissolution,
removing or indemnifying directors or amending these Bylaws; and, unless the
resolution expressly so provides, no such committee shall
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have the power or authority to declare a dividend or to authorize the issuance
of stock.
Section 4.2 Committee Rules. Unless
the Board of Directors otherwise provides, each committee designated by the
Board of Directors may adopt, amend and repeal rules for the conduct of its
business. In the absence of a provision by the Board of Directors or a
provision in the rules of such committee to the contrary, a majority of the
entire authorized number of members of such committee shall constitute a quorum
for the transaction of business, the vote of a majority of the members present
at a meeting at the time of such vote if a quorum is then present shall be the
act of such committee, and in other respects each committee shall conduct its
business in the same manner as the Board of Directors conducts its business
pursuant to Article III of these Bylaws.
Section 4.3 Audit Committee.
(a) Authorization. The Corporation
shall have an Audit Committee. The Audit Committee shall be a committee of the
Board of Directors and shall be subject to the provisions of Section 4.1 of
these Bylaws.
(b) Duties. The Audit Committee shall;
(i) recommend to the Board of Directors annually a firm of independent public
accountants to act as auditors of the Corporation; (ii) review with the
auditors in advance the scope of their annual audit; (iii) review with the
auditors and the management, from time to time, the Corporation's accounting
principles, policies, and practices and its reporting policies and practices;
(iv) review with the auditors annually the results of their audit; (v) review
from time to time with the auditors and the Corporation's financial personnel
the adequacy of the Corporation's accounting, financial and operating controls;
and (vi) perform such other duties as shall from time to time be delegated to
the Committee by the Board.
(c) Membership. No director shall
serve as a member of the Audit Committee while he or she is a full-time
employee of the Corporation or any of its subsidiaries. Within the limitations
prescribed in the preceding sentence, the membership on the Audit Committee
shall be determined by the Board of Directors as provided in Section 4.1 of
these Bylaws.
ARTICLE V
Officers
Section 5.1 Officers; Election. As
soon as practicable after the annual meeting of stockholders in each year, the
Board of Directors shall elect a President and a Secretary. The Board of
Directors may also elect one or more
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Executive Vice Presidents, one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers and may give any
of them such further designations or alternate titles as it considers
desirable. Any number of offices may be held by the same person.
Section 5.2 Term of Office;
Resignation; Removal Vacancies. Except as otherwise provided in the resolution
of the Board of Directors electing any officer, each officer shall hold office
until the first meeting of the Board of Directors after the annual meeting of
stockholders next succeeding his or her election, and until his or her
successor is elected and qualified or until his or her earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Board of Directos or to the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. The Board of Directors may remove any
officer with or without cause at any time. Any such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election of an officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled for the unexpired
portion of the term by the Board of Directors at any regular or special
meeting.
Section 5.3 Powers and Duties. The
officers of the Corporation shall have such powers and duties in the management
of the Corporation as shall be stated in these Bylaws or in a resolution of the
Board of Directors which is not inconsistent with these Bylaws and, to the
extent not so stated, as generally pertain to their respective offices, subject
to the control of the Board of Directors. The Secretary shall have the duty to
record the proceedings of the meetings of stockholders, the Board of Directors
and any committees in a book to be kept for that purpose and shall have custody
of the corporate seal of the Corporation with the authority to affix such seal
to any instrument requiring it. The Board of Directors may require any
officer, agent or employee to give security for the faithful performance of his
duties.
ARTICLE VI
Indemnification of Directors, Officers,
Employees and Other Corporate Agents
Section 6.1 Right to Indemnification.
To the extent not inconsistent with that certain Stock Contribution Agreement
dated as of December 19, 1985, each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a
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"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, is or was serving at the request of the Corporation as director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, or was a director, officer, employee or agent of a foreign or
domestic corporation which was a predecessor of the Corporation or of another
enterprise at the request of such predecessor corporation, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized 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 expense,
liability and loss (including attorney's fees, judgments, fines, ERISA excise
taxes of penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
Section 6.2 of this Article VI, the Corporation shall indemnify and such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 6.1 shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers. This
Article VI shall create a right of indemnification which relates to any
proceeding whether it arose in whole or in part prior to adoption of this
Article VI (or the adoption of the
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comparable provisions of the Bylaws of the Corporation's predecessor
corporation).
Section 6.2 Right of Claimant to Bring
Suit. If a claim under Section 6.1 of this Article VI is not paid in full by
the Corporation within thirty days after written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, 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 proving 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 to 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 or conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 6.3 Nonexclusivity of Rights.
The right to indemnification and the payment of expenses incurred in defending
a proceeding in advance of its final disposition conferred in this Article VI
shall not be exclusive of any other right which may person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 6.4 Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or 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.
Section 6.5 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 for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
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not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
ARTICLE VII
Stock
Section 7.1 Certificates. 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 Chairman of the Board of
Directors, if any, or the President, or a Vice President, and by the Treasurer
or an Assistant Treasurer, if any, or the Secretary or an Assistant Secretary,
of the Corporation, certifying the number of shares owned by him or her in the
Corporation. Any or all signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
Section 7.2 Lost, Stolen or Destroyed
Stock Certificates; Issuance of New Certificates. 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 Corporation may
require the owner of the lost, stolen or destroyed certificate, or his or her
legal representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VIII
Miscellaneous
Section 8.1 Fiscal Year. The fiscal
year of the Corporation shall be determined by the Board of Directors.
Section 8.2 Seal. The Corporation may
have a corporate seal which shall have the name of the Corporation inscribed
thereon and shall be in such form as may be approved from time to time by the
Board of Directors. The corporate seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
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Section 8.3 Waiver of Notice of
Meetings of Stockholders Directors and Committees. Whenever notice is required
to be given by law or under any provision of the Certificate of Incorporation
or these Bylaws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting or
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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation or these Bylaws. Unless either
proper notice of a meeting of the Board of Directors, or any committee thereof,
has been given or else the persons entitled thereto have waived such notice
(either in writing or by attendance as set forth above), any business
transacted at such meeting shall be null and void.
Section 8.4 Interested Directors;
Quorum. No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are counted for such
purpose, if: (1) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the Board
of Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or d(3) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
Section 8.5 Form of Records. Any records
maintained by the Corporation in the regular course of its business, including
its stock ledger, books of account and
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minute books, may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs or any other information storage device, provided
that the records so kept can be converted into clearly legible form within a
reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same.
Section 8.6 Amendment of Bylaws.
Unless otherwise provided in the Certificate of Incorporation, these Bylaws may
be amended or repealed, and new Bylaws adopted, by the Board of Directors, but
the stockholders entitled to vote may adopt additional Bylaws and may amend or
repeal any Bylaw whether or not adopted by them.
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