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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) January 18, 1996
HILLS STORES COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 1-9505 31-1153510
(State or other (Commission (IRS Employer
jurisdiction File Number) Identification
of incorporation) Number)
15 DAN ROAD, CANTON, MASSACHUSETTS 02021
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code 617-821-1000
(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
On January 18, 1996, the Board of Directors of Hills Stores Company
(the "Company") approved two amendments to the By-Laws of the Company.
The first amendment provides that nominations of persons for elections
to the Board of Directors of the Company may be made at a meeting of
stockholders (1) by or at the direction of the Board of Directors or (2) by any
stockholder of record pursuant to timely notice in writing to the Secretary of
the Company. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Company not less
than sixty (60) days in advance of the anniversary date of the mailing of the
notice of annual meeting released to stockholders in connection with the
previous year's annual meeting of stockholders, except that if no annual
meeting of stockholders was held in the previous year or if the annual meeting
date has been changed by more than thirty (30) days from the anniversary date
of the previous year's annual meeting, notice by a stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which the date of the annual meeting is first disclosed to
the public.
Such stockholder's notice must also set forth certain information as
to the proposed nominee and as to the stockholder and the stockholder's
holdings as are more particularly set forth in Article II, Section 4 of the
Company's Amended and Restated By-Laws which are filed as Exhibit 3(ii) hereto
and incorporated herein by reference.
The second amendment provides that in order to be properly brought
before an annual meeting of stockholders, business must be (a) specified in the
notice of the meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, (b) otherwise properly brought before the meeting by
the Board of Directors or (c) otherwise properly brought before the meeting by
a stockholder of record by timely notice in writing to the Secretary of the
Company. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive office of the Company not less than
sixty (60) days in advance of the anniversary of the date of the mailing of the
notice of annual meeting released to stockholders in connection with the
previous year's annual meeting of stockholders, except that if no annual
meeting of stockholders was held in the previous year or the date of the annual
meeting has been changed by more than thirty (30) days from the anniversary of
the previous year's annual meeting, notice by the stockholder to be timely must
be so received not later than the close of business on the 10th day following
the date on which the date of the annual meeting is first disclosed to the
public.
Such stockholder's notice must also set forth certain information as
to each matter the stockholder proposes to bring before the annual meeting and
as to the stockholder and the stockholder's holdings as more particularly set
forth in Article II, Section 5 of the Company's Amended and Restated By-Laws
filed as Exhibit 3(ii) hereto.
The foregoing description of the amendments to the Company's By-Laws
does not purport to be complete and is qualified in its entirety by reference
to Exhibit 3(ii) hereto.
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Item 7. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Title
------- -----
<S> <C>
3(ii) Amended and Restated By-Laws
</TABLE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized, on January 19, 1996.
HILLS STORES COMPANY
BY: /s/ William K. Friend
------------------------------
Name: William K. Friend
Title: Vice President-Secretary and
Corporate Counsel
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EXHIBIT INDEX
Pursuant to Item 601 of Regulation S-K
<TABLE>
<CAPTION>
Exhibit
Number Title
------- -----
<S> <C>
3(ii) Amended and Restated By-Laws
</TABLE>
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HILLS STORES COMPANY
AMENDED AND RESTATED BY-LAWS
ARTICLE I - OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The corporation may also have offices at
such other places both within and without the Sate of Delaware as the board of
directors may from time to time determine or the business of the corporation
may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. An annual meeting of the stockholders,
for the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place on such date and at such time as the board of
directors shall each year fix, which date shall be within thirteen months
subsequent to the later of (a) the date on which the clerk of the United States
Bankruptcy Court or United States District court for the Southern District of
New York with jurisdiction over proceedings relating to the reorganization of
the corporation pursuant to Chapter 11 of the United Sates Bankruptcy Code
enters an order confirming the plan of reorganization of the corporation
pursuant to said Chapter 11 on the legal docket for such proceedings or (b) the
last annual meeting of stockholders.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders,
for any purpose or purposes prescribed in the notice of the meeting, may be
called by the board of directors, the chairman of the board or the president
and shall be held at such place, date and time as the board of directors, the
chairman of the board or the president shall fix.
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SECTION 3. NOTICE OF MEETINGS. Written notice for stockholder
meetings stating the place, date and time for the meeting, and, in the case of
special meetings, the general nature of the business to be considered, shall be
given to each stockholder entitled to vote at such meeting not less than ten
(10) nor more than sixty (60) days before the date of the meeting.
SECTION 4. NOTICE OF STOCKHOLDER NOMINEES. Only persons who are
nominated in accordance with the procedures set forth in this Section 4 shall
be eligible for election as Directors. Nominations of persons for elections to
the Board of Directors of the Corporation may be made at a meeting of
stockholders (1) by or at the direction of the Board of Directors or (2) by any
stockholder of record of the Corporation entitled to vote for the election of
Directors at the meeting who complies with the notice procedures set forth in
this Section 4. Such 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. To be timely, a stockholder's notice
shall be delivered to or mailed and received at the principal executive offices
of the Corporation not less than sixty (60) days in advance of the anniversary
of the date of mailing of the notice of annual meeting released to stockholders
in connection with the previous year's annual meeting of stockholders, except
that if no annual meeting of stockholders was held in the previous year or if
the date of the annual meeting has been changed by more than thirty (30) days
from the anniversary of the date of the previous year's annual meeting, notice
by the stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which the date of the meeting is
first disclosed to the public. Such stockholder's notice shall set forth: (a)
as to each person whom the stockholder 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 which are
beneficially owned by such person and (iv) any other information relating to
such person that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
without
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limitation such persons' written consent to being named in a proxy statement as
a nominee and to serving as a Director if elected); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
Corporation's books, of such stockholder and (ii) the class and number of
shares of the Corporation which are beneficially owned by such stockholder. At
the request of the Board of Directors, any person nominated by the Board of
Directors for election as a Director shall furnish to the Secretary of the
Corporation the information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. No person shall be eligible for
election as a Director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 4. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a nomination
was not made in accordance with the procedures prescribed by the By-Laws, and
if he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
SECTION 5. ADVANCE NOTICE OF STOCKHOLDER BUSINESS. At any 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 the meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, (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 a stockholder of record. 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 delivered to or mailed and received at
the principal executive offices of the Corporation, not less than sixty (60)
days in advance of the anniversary of the date of mailing of the notice of
annual meeting released to stockholders in connection with the previous year's
annual meeting of stockholders, except that if no annual meeting of
stockholders was held in the previous year or if the date of the annual meeting
has been changed by more than thirty (30) days from the anniversary of the
previous year's annual meeting, notice by the stockholder to be timely must be
so received not later than
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the close of business on the 10th day following the day on which the date of
the annual meeting is first disclosed to the public.
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
and address, as they appear on the Corporation's books, 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 the By-Laws
to the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 5. 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 5, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
SECTION 6. VOTING. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder on the record date for the
meeting, but no proxy shall be voted after three years from its date unless
such proxy provides for a longer period.
All elections for directors shall be decided by a plurality of the
votes cast. All other questions shall be decided by majority vote except as
otherwise provided by the certificate of incorporation or by statute.
SECTION 7. STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting arranged in alphabetical order and showing the address of
each stockholder and the number of
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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 (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
SECTION 8. QUORUM. At any meeting of the stockholders, the holders
of a majority of all of the shares of the stock entitled to vote at the
meeting, present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number
may be required by statute or the certificate of incorporation. In case a
quorum shall not be present or represented at any meeting, a majority in
interest of the stockholders entitled to vote thereat, present in person or by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At any such adjourned meeting at which a quorum shall be
present or represented, any business may be transaction which might have been
transacted at the meeting as originally noticed.
SECTION 9. BUSINESS TRANSACTED. No business other than that stated
in the notice shall be transacted at any meeting without consent of the holders
of 66-2/3% of the outstanding shares of the corporation's common stock.
SECTION 10. ACTION BY WRITTEN CONSENT. (a) Unless otherwise provided
in the certificate of incorporation, any action required to be taken at any
annual or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may
be taken without a meeting, without prior notice and without a vote if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote
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thereon were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
(b) Consents to corporate action shall be valid for a maximum of sixty
(60) days after the date of the earliest dated consent delivered to the
corporation in the manner provided in Section 228(c) of the Delaware General
Corporation law. Consents may be revoked by written notice (i) to the
corporation, (ii) to the stockholder or stockholders soliciting consents or
soliciting revocations in opposition to action by consent (the "Soliciting
Stockholders"), or (iii) to a proxy solicitor or other agent designated by the
corporation or the Soliciting Stockholders.
(c) Within ten (10) business days after receipt of the earliest dated
consent delivered to the corporation in the manner provided in Section 228(c)
of the Delaware General Corporation Law or the determination by the board of
directors of the corporation that the corporation should seek corporate action
by written consent, as the case may be, the Secretary of the corporation shall
engage nationally recognized independent inspectors of elections for the
purpose of performing a ministerial review of the validity of the consents and
revocations. The cost of retaining inspectors of election shall be borne by
the corporation.
(d) Following appointment of the inspectors, consents and revocations
shall be delivered to the inspectors upon receipt by the corporation, the
Soliciting Stockholder or their proxy solicitors or other designated agents.
As soon as practicable following the earlier of (i) the receipt by the
inspectors, a copy of which shall be delivered to the corporation, of any
written demand by the Soliciting Stockholders, or (ii) sixty (60) days after
the date of the earliest dated consent delivered to the corporation in the
manner provided in Section 228(c) of the Delaware General Corporation Law, the
inspectors shall issue a preliminary report to the corporation and the
Soliciting Stockholders stating the number of valid and unrevoked consents and
whether, based on their preliminary count, the requisite number of valid and
unrevoked consents has been obtained to authorize or take the action specified
in the consents.
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(e) Unless the corporation and the Soliciting Stockholders shall agree
to a shorter or longer period, the corporation and the Soliciting Stockholders
shall have 48 hours to review the consents and revocations and to advise the
inspectors and the opposing party in writing as to whether they intend to
challenge the preliminary report of the inspectors. If no written notice of an
intention to challenge the preliminary report is received within 48 hours after
the inspectors' issuance of the preliminary report, the inspectors shall issue
to the corporation and the Soliciting Stockholders their final report
containing the information from the inspectors' determination with respect to
whether the requisite number of valid and unrevoked consents was obtained to
authorize and take the action specified in the consents. If the corporation or
the Soliciting Stockholders issue written notice of an intention to challenge
the inspectors' preliminary report within 48 hours after the issuance of that
report, a challenge session shall be scheduled by the inspectors as promptly as
practicable. Following completion of the challenge session, the inspectors
shall as promptly as practicable issue their final report to the Soliciting
Stockholders and the corporation, which report shall contain the information
included in the preliminary report, plus any change in the vote total as result
of the challenge and a certification of whether the requisite number of valid
and unrevoked consents was obtained to authorize or take the action specified
in the consents.
ARTICLE III - DIRECTORS
SECTION 1. NUMBER AND TERM. Except as otherwise provided in the
certificate of incorporation, the number of directors which shall constitute
the whole board shall be no less than three, the exact number to be determined
by the board of directors. Election of directors shall be by written ballot.
The directors shall be elected at the annual meeting of the stockholders and
each director elected shall hold office for a term of one year or until such
director's successor is elected and qualified, except as otherwise provided
herein or in the certificate of incorporation or as required by law.
SECTION 2. VACANCIES. Subject to the rights of the holders of any
class or series of stock having a preference
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over the common stock of the corporation as to dividends or upon liquidation
and subject to the rights of stockholders set forth in Section 11 of this
Article III of these by-laws, any vacancies on the board of directors resulting
from death, resignation, removal or other cause shall only be filled by the
board of directors 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, or by a sole remaining director, and newly created directorships
resulting from an increase in the number of directors shall be filled by the
board of directors, or if not so filled, by the stockholders at the next annual
meeting thereof or at a special meeting called for that purpose in accordance
with Section 2 of Article II of these by-laws. Any director elected in
accordance with Section 2 of Article II of these by-laws. Any director elected
in accordance with the preceding sentence of this Section 2 shall hold office
until the next annual election and until such director's successor shall have
been elected and qualified.
SECTION 3. POWERS. The business of the corporation shall be managed
by or under the direction of the board of directors, which may exercise all
such powers of the corporation and do all such lawful acts and things as are
not by statute or by the certificate of incorporation or by these by-laws
directed or required to be exercised or done by the stockholders.
SECTION 4. REGULAR MEETINGS. Regular meetings of the board of
directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the board of directors and
publicized among all directors. A notice of each regular meeting shall not be
required.
SECTION 5. SPECIAL MEETINGS. Special meetings of the board of
directors may be called by one-third of the directors then in office or by the
chairman of the board and shall be held at such place, on such date, and at
such time as such directors or the chairman of the board shall fix. Notice of
the place, date, and time of each such special meeting shall be sent by
overnight delivery service, mail, telegraph, facsimile transmission, telex or
similar means, or be personally delivered, to each director not later than 48
hours prior to the time at which the meeting is to be
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held, but notice need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of such notice or who shall attend
such meeting without protesting, prior to or at its commencement, the lack of
such notice to such director. Unless otherwise indicated in the notice
thereof, any and all business may be transacted at a special meeting.
SECTION 7. QUORUM AND ACTION. At any meeting of the board of
directors, one-third of the total number of the whole board, but not less than
two, shall constitute a quorum for all purposes. The vote of a majority of
those directors present at any meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the board of directors,
unless as otherwise required by law, the certificate of incorporation or these
by-laws. In the absence of a quorum for any such meeting, a majority of the
directors present thereat may adjourn such meeting from time to time, without
notice other than announcement at such meeting, until a quorum shall be
present. At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally noticed.
SECTION 8. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
the certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors may be taken
without a meeting, if all members of the board consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the board
of directors.
SECTION 9. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the board of directors may participate in a meeting of such board by
means of conference telephone or similar communications equipment that enables
all persons participating in the meeting to hear each other. Such
participation shall constitute presence in person at such meeting.
SECTION 10. CONDUCT OF BUSINESS. At any meeting of the board of
directors, business shall be transacted in such order and manner as the board
may from time to time determine, and all matters shall be determined by the
vote
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of a majority of the directors present, except as otherwise provided herein or
required by law.
SECTION 11. REMOVAL OF DIRECTORS. Any director or the entire board
of directors may be removed, either for or without cause, at any time by the
affirmative vote of the holders of a majority of all the shares of stock
outstanding and entitled to vote in the election of directors at a special
meeting of the stockholders called for the purpose, and the vacancy or
vacancies thus created may be filled, at the meeting held for the purpose of
removal, by the affirmative vote of a majority of the shares so entitled to
vote.
SECTION 12. COMPENSATION. The board of directors shall have the
authority to fix the compensation, if any, of the directors.
SECTION 13. CHAIRMAN OF THE BOARD. The chairman of the board of
directors, if one is elected, shall, if present, preside at meetings of the of
the board of directors and, if present, preside at meetings of the
stockholders. The chairman of the board shall, when requested, counsel with
and advise the officers of the corporation and shall perform such other duties
as may from time to time be determined by the board of directors.
ARTICLE IV - COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. ESTABLISHMENT OF COMMITTEES OF THE BOARD OF DIRECTORS.
The board of directors may, in accordance with and subject to the General
Corporation Law of the State of Delaware, from time to time establish
committees of the board of directors to exercise such powers and authorities of
the board of directors and to perform such other functions, as the board of
directors may from time to time determine.
SECTION 2. PROCEDURE; MEETINGS; QUORUM. Regular meetings of
committees of the board of directors, of which no notice shall be necessary,
may be held at such times and places as shall be fixed by resolution adopted by
a majority of the members of such committee. Special meetings of any committee
of the board of directors shall be called at the request of any member of such
committee. Notice of each
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special meeting of any committee of the board of directors shall be sent by
overnight delivery service, mail, telegraph, facsimile transmission, telex or
telephone, or be delivered personally, to each member thereof not later than 48
hours prior to the time at which the meeting is to be held, but notice need not
be given to any member who shall, either before or after the meeting, submit a
signed waiver of such notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of such notice to such
member. Any special meeting of any committee of the board of directors shall
be a legal meeting without any notice thereof having been given, if all the
members thereof shall be present thereat. Notice of any adjourned meeting of
any committee of the board of directors need not be given. Any committee of
the board of directors may adopt such rules and regulations not inconsistent
with the provisions of law, the certificate of incorporation, these by-laws or
the resolutions of the board of directors establishing such committee for the
conduct of its meetings as such committee of the board of directors may deem
proper. A majority of the members of any committee of the board of directors
shall constitute a quorum for the transaction of business at any meeting, and
the vote of a majority of the members thereof present at any meeting at which a
quorum is present shall be the act of such committee. Each committee of the
board of directors shall keep written minutes of its proceedings and shall
report on such proceedings to the board of directors.
SECTION 3. RECORD DATE. (a) The board of directors may fix a record
date, which shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for any other action hereinafter described, as of which there
shall be determined the stockholders who are entitled: to notice of or to vote
at any meeting of stockholders or any adjournment thereof; to express consent
to corporate action in writing without a meeting consistent with and as
provided in subsection (b) below; to receive payment of any dividend or other
distribution or allotment of any rights; or to exercise any rights with respect
to any change, conversion or exchange of stock or with respect to any other
lawful action.
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(b) 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. Effective beginning August 19, 1994, any stockholder of record
seeking to have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary of the corporation, request
the board of directors to fix a record date. The board or directors shall
promptly, but in all events within ten (10) days after the date on which such a
request is received by the Secretary, 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 by delivery to its registered office in the State of Delaware, its
principal place of business, or any officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by
hand or certified or registered mail, return receipt requested. If no record
date has been fixed by the board of directors and prior action by the board of
directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the board of
directors adopts the resolution taking such prior action.
ARTICLE V - OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall consist
of a president, one or more vice presidents (any of whom may be designated as
an executive vice president, senior vice president or assistant vice president
and any of whom may be designated as a vice president with
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particular functions or responsibilities), a treasurer, a secretary and such
other officers as may from time to time be elected or appointed by the board of
directors or pursuant to its delegated power. Officers shall hold office until
their successors are elected and qualified or until their earlier resignation
or removal. None of the officers of the corporation need be directors. The
officers shall be elected at the first meeting of the board of directors after
each annual meeting. Any number of offices may be held by the same person.
The salaries of all officers of the corporation shall be fixed by the board of
directors.
SECTION 2. OTHER OFFICERS AND AGENTS. The board of directors may
appoint such other officers and agents as it shall deem necessary, who shall
hold their offices for such terms and shall exercise such power and perform
such duties as shall be determined from time to time by the board of directors.
SECTION 3. DELEGATED POWERS. The board of directors may delegate to
the president the power to grant titles of office in the corporation to
employees holding responsible positions in the corporation.
SECTION 4. PRESIDENT. The president shall have the general powers
and duties of supervision and management usually vested in the office of
president of a corporation. The president shall, if present and in the absence
of the chairman of the board, preside at all meetings of the stockholders and,
if a director and present, and in the absence of the chairman of the board,
preside at meetings of the board of directors. The president shall have
general supervision, direction and control of all of the other officers and
agents of the corporation and of the business of the corporation. The
president shall have the power to sign and execute in the name of the
corporation deeds, mortgages, bonds, stock certificates, contracts and other
instruments of the corporation as authorized by the board of directors.
SECTION 5. VICE-PRESIDENT. Each vice-president shall have such
powers and shall perform such duties as shall be assigned to him by the board
of directors.
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SECTION 6. TREASURER. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. The
treasurer shall deposit all moneys and other valuables in the name and to the
credit of the corporation in such depositories as may be designated by the
board of directors.
The treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements. The treasurer shall render to the president and the board of
directors at the regular meetings of the president and board of directors at
the regular meetings of the board of directors, or whenever they may request
it, an account of all his transactions as treasurer and of the financial
condition of the corporation. If required by the board of directors, the
treasurer shall give the corporation a bond for the faithful discharge of his
duties in such amount and with such surety as the board of directors shall
prescribe.
SECTION 7. SECRETARY. The secretary shall issue all authorized
notices for, and shall attend and keep minutes of, all meetings of the
stockholders and of the board of directors. The secretary shall have charge of
the corporate books and shall have custody of the corporate seal.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
treasurers and assistant secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the board of directors.
ARTICLE VI - STOCK
SECTION 1. CERTIFICATES OF STOCK. The shares of the corporation
shall be represented by a certificate or shall be uncertificated. Certificates
shall be signed by, or in the name of the corporation by, the chairman of the
board of directors, or the president or any vice-president of the corporation,
and the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation.
Any of or all the signatures on a certificate may be facsimile. In
case any officer, transfer agent or registrar
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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 the signatory were such officer, transfer agent or registrar at the date
of issue.
SECTION 2. TRANSFER OF STOCK. Transfers of stock shall be made only
upon the transfer of books of the corporation kept at an office of the
corporation or by transfer agent designated to transfer shares of the stock of
the corporation. Except where a certificate is issued in accordance with
Section 4 of Article VI of these by-laws, an outstanding certificate for the
number of shares involved shall be surrendered for cancellation before a new
certificate is issued therefor.
SECTION 3. RECORD DATE. The board of directors may fix a record
date, which shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for any other action hereinafter described, as of which there
shall be determined the stockholders who are entitled: to notice of or to vote
at any meeting of stockholders or any adjournment thereof; to express consent
to corporate action in writing without a meeting; to receive payment of any
dividend or other distribution or allotment of any rights; or to exercise any
rights with respect to any change, conversion or exchange of stock or with
respect to any other lawful action.
SECTION 4. LOST CERTIFICATES. In the event of the loss, theft or
destruction of any certificate of stock, another may be issued in its place
pursuant to such regulations as the board of directors may establish concerning
proof of such loss, theft or destruction and concerning the giving of a
satisfactory bond or bonds of indemnity.
SECTION 5. REGULATIONS. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the board of directors may establish.
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SECTION 6. DIVIDENDS. Subject to the provisions of the certificate
of incorporation, the board of directors may, out of funds legally available
therefore at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Dividends may be
paid in cash, in property, or in shares of capital stock.
ARTICLE VII - GENERAL PROVISIONS
SECTION 1. SEAL. The board of directors may provide a suitable seal.
The corporate seal shall have inscribed thereon the name of the corporation,
the year of its creation and the words "CORPORATE SEAL DELAWARE". Said seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
SECTION 2. FISCAL YEAR. The fiscal year of the corporation shall be
determined by resolution of the board of directors.
SECTION 3. CHECKS. All checks, drafts, or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the corporation shall be signed by such officers or such other person or
persons and in such manner as shall be determined from time to time by
resolution of the board of directors.
SECTION 4. NOTICE AND WAIVER OF NOTICE. Whenever notice is required
to be given to any stockholder, director, officer or agent, such requirement
shall not be construed to mean personal notice. Any notice so required may in
every instance be effectively given by depositing the same in the United States
mail, postage prepaid, or by sending the same by overnight delivery service,
telegraph, facsimile transmission, telex or personal delivery, addressed to the
person entitled thereto at his address as it appears on the records of the
corporation, and such notice shall be deemed to have been given on the day of
such mailing, delivery or transmission. Stockholders not entitled to vote
shall not be entitled to receive notice of any meetings except as otherwise
provided by statute.
Whenever any notice is required to be given under the provisions of
any law, or under the provisions of the
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certificate of incorporation of the corporation or these by-laws, a written
waiver thereof signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed proper notice.
Neither the business nor the purpose of any meeting need be specified in such a
waiver.
SECTION 5. INDEMNIFICATION. (a) The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere of its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporations hall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or
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settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of the corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in paragraphs (a) and (b) of this
Section 5, or in defense of any claim, issue or matter therein, including the
dismissal of an action without prejudice, he shall, without limiting the
provisions of paragraph (a) above, be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under paragraphs (a) and (b) of this
Section 5 (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in paragraphs (a) and
(b) of this Section 5. Such determination shall be made (i) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceedings, or (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt
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of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation pursuant to this Section 5 or as otherwise
authorized by law. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 5 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) The corporation, at its expense, may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability under the provisions of this
Section 5 or under the provisions of the General Corporation Law of the State
of Delaware.
(h) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 5 shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
(i) All rights to indemnification and advancement of expenses
under this Section 5 shall be deemed to be provided by contract between the
corporation and the director, officer, employee or agent who serves in such
capacity at any time while these by-laws and other relevant provisions of the
General Corporation Law of the State of Delaware and other applicable law, if
any, are in effect.
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(j) Any repeal or modification of the foregoing paragraphs by
the stockholders of the corporation shall not adversely affect any right or
protection of a director, officer, employee or agent of the corporation
existing at the time of such repeal or modification.
(k) If the General Corporation Law of the State of Delaware
is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, officers, employees or agents, then such
person, in addition to the circumstances in which he is not now personally
liable, shall be free of liability to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended.
(l) For purposes of this Section 5, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Section 5 with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
(m) For purposes of this Section 5, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent by the
corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an
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employee benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation", as referred to in this Section 5.
(n) If this Section 5 or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each person as provided above as to
expenses (including attorneys fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including a grand jury proceeding
and an action by the corporation, to the full extent permitted by any
applicable portion of this Section 5 that shall not have been invalidated or by
any other applicable law.
ARTICLE VIII - AMENDMENTS
These by-laws may be amended or repealed by the board of
directors at any meeting or by the stockholders at any meeting.
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